This past week, over at Volokh Conspiracy, law professor Mitch Berman has been blogging about “temporal variance” in the enforcement of rules by referees and judges. The idea of “temporal variance” is well known to any sports fan, even if Berman’s phraseology is not. The idea is that, by unwritten consensus, different sets of rules are enforced at different times of contests — whether they be legal, athletic or some other kind.
Toward the end of a game, or in playoff competition, referees enforce a different set of rules than normally applies. They tend to “let the players play” and to avoid calling ticky-tack penalties.
Abiding by these unwritten rules is a part of sportsmanship and good conduct. It violates the unwritten rules of the game, whether it’s hockey or soccer, for players to flop and seek to have the referees intervene to influence the outcome of the match.
In reading through some of Berman’s blog posts on “temporal variance,” one recent, very prominent example of the “let the players play” norm being violated sprang to mind: Jose Baez’s closing argument in the Casey Anthony trial. I watched hardly any of the trial but I caught a chunk of Baez’s closing argument and, as a lawyer, took offense at the gratuitous objections made by the prosecution. The prosecution’s offense — their numerous objections, which interrupted the rhythm of Baez’s closing — was an example of temporal variance in action.
Normally in a trial, when the opposing side tries to do elicit some evidence that you think shouldn’t be allowed, you rise to your feet and announce, “Objection!” The judge/referee will then either sustain the objection or overrule you.
But in closing arguments, by unwritten rule, you don’t do that. If the other side says something you find objectionable, you wait until she finishes her closing argument, approach the bench at sidebar and ask for a limiting instruction to the jury or for your objection to be noted for the record. It’s considered truly bad form to interrupt the rhythm of someone’s closing argument to lodge an objection in open court.
Closing arguments in a trial are the ultimate playoff moment, the time of “let the players play.” There’s no rule of evidence that says a different standard applies during closing arguments, but one does.
Watching Baez’s closing argument in the Casey Anthony case, I became infuriated at the prosecution’s incessant objections on the most minor points. It truly seemed to me that the prosecution were exhibiting poor legal conduct, something analogous to the kind of poor sportsmanship implicit in a player flopping on the ground and looking for a call. But even worse, because a contest where someone’s life is at stake calls for a much higher standard of conduct than the norm.
And it seemed to me that Judge Belvin Perry did a poor of refereeing the closing. Instead of rebuking the prosecution for their petty objections, Perry carefully considered each one of the prosecution’s objections before deciding whether to sustain or overrule it. (Perhaps this is the byproduct of Florida’s elected judiciary; if we chose our referees by popular vote too, they might be wondering how their calls would be reviewed come election time).
Given the fact that prosecutors Jeff Ashton and Linda Drane Burdick seemed to give so little honor to the unwritten rules of the legal contest, it came as little surprise to learn this week that the prosecution may also have violated a legal rule graven in stone: the constitutional rule of Due Process that the prosecution turn over to the defense all exculpatory evidence in its possession. According to reports, software designer John Bradley alerted prosecutors that a key piece of evidence in the Anthony trial — the number of times that Anthony supposedly googled “chloroform” — was mistaken. There was a flaw in his software that made it seem like Anthony googled “chloroform” 84 times when in fact it had only been googled once. Yet the prosecution did not disclose Bradley’s admission of error to the defense and argued to the jury that Anthony searched “chloroform” 84 separate times.
The rules of the game might vary with time, but it seems like one’s character and sportsmanship are constants.
PS — For any lawyer who agrees that judges ought to employ some form of “temporal variance” consider the following question: it’s the middle of trial and the plaintiff has a great case on liability — unfortunately plaintiff’s only viable claims are outside the scope of the complaint. Should a judge allow an amendment freely in the middle of trial? Or should the judge deny any motion to amend the complaint?
It might seem that allowing the amendment would most embody the “let the players play” ethos: it would allow the contest to be determined by a good old-fashioned slugfest in front of the jury. On the other hand, in this type of situation, it’s hard to think of a call that would more clearly involve the judge placing his or her thumb on the scales to influence the outcome.

This blog in maintained by the Boston personal injury lawyers at The Law Office of Alan H. Crede, P.C.