#DFG: Canceling the Noise

[TheoShmeo]

Opinions vary on Berman's options.  Some say it's vacate in toto versus uphold; some say he has a freer hand (though he should be careful how he uses it in light of the Second Circuit).  Hopefully someone like MSF can offer a view as I remain unclear on what the options really are.  I'm sure that has been covered above, so apologies if this is obvious to others.
 
My take on Kraft is that the criticism here and elsewhere has often been unduly harsh.  No one, of course, gets total deference but one would think he would get some given that he was the guy who bought the team when they were otherwise headed out of town, their incredible run of success under his watch, his clear hunger for a winner, the fact that his players repeatedly talk about how things are done first class in the organization, which presumably advances the cause of winning on some level, and the fact that as outsiders, there are clearly relevant facts and considerations that we don't have access to.
 
Aside from the deference point, not fighting an a fight that he could not win is a lay-up in my view.  I don't think anyone really disputes that he could not get the NFL's ridiculous penalty undone.  I get being put off by his flowery language re Goodell when he announced he was accepting the penalty.  I get being annoyed at his apparent fealty to the owners' club.  But it seems quite possible that those comments were designed, at least in part, to impact Goodell and the other owners in the appeal process.  It turned out that Kraft was dead wrong.  But we've all been wrong before and I think his mistake in this instance was understandable.  I think a lot of people thought that if Kraft played nice, it would have a positive impact on the Brady suspension.  And if it had worked, that would have been a trade I would have been willing to make, especially since Kraft had no prospect of winning had he chosen the Al Davis route. 

 

[Shelterdog]

So Kessler had Jay Feely explain to Berman on Monday that as the Jets' kicker aware of fiddling with the K-balls, was never even interviewed by the NFL when they suspended the equipment guy for equipment tampering--that's the kind of inconsistency Berman might have wanted to add to his opinion. Kessler's always thinking: "As long as you're here, Jay..."
http://profootballtalk.nbcsports.com/2015/09/01/feely-did-indeed-tell-judge-berman-about-the-jets-k-ball-incident/

 
It's also in the NFLPA's papers.

 

[OnWisc]

At this point I think NFL wants Brady falling on his sword. I think they'd rather 1 game and an admission at this point. Goodell NEEDS Brady GUILTY to justify this whole thing.

I used to think this but Brady isn't admitting guilt and a federal judge has already shined a light on how bullshit the NFL's handling of this has been. Goodell is not going to pull off any sort of miracle half court buzzer beater where his clown show handling of this suddenly looks wise and balanced.

I think the NFL is leaning on the admission of guilt because they know it's an absolute non-starter and they don't want to settle. If they lose in court, that's just business as usual for them and no harm done. If they win, then the commissioner can basically hand out any discipline he wants for any offense whether it happened or not. Do that enough going forward so that the players- who for the most part don't seem to give much of a shit one way or the other right now- will want a change in the next CBA and the league can extract some concessions.

 

[Eddie Jurak]

 
The prevailing theory that subscribes to the above, and one that I read, is that Berman may choose to split the baby and find a common ground that neither side loves, but that neither side hates enough to spend the time and energy appealing. The thinking is 2 games without an admission of guilt regarding tampering may be it. 
 
Brady would not appeal that IMO. Not so sure about the league.

I think the NFLPA would absolutely appeal that kind of a ruling because it would set a terrible precedent - noncooperation with the (obviously) heavy-handed NFL mandates a 2 game suspension. Even if Brady wanted to accept that the PA could not go along. It would be a huge win for the league.

 

[slowstrung]

Kraft was never going to go nuclear for purely self interested reasons. So while some of the criticisms of him here and elsewhere may have been a bit too harsh in tone, because from a Fans standpoint he has been mostly an exemplary owner, I don't have much sympathy for any hurt feelings or sense of betrayal he may be experiencing. He has been a core member of this cartel for years. He is wholly vested in their quest for 20-25 billion in revenues. And keeping the players under their thumbs financially, and in every other way, sure seems to be a key element of that mission. And as many have pointed out, he also never said boo when the Saints were so clearly being railroaded in Bountygate, and actively supported the feckless dunce commissioner as he was making the mother of all dumpster fires out of the domestic violence cases/policy last fall. So to some degree, lay down with dogs, get fleas.

Furthermore, he had to have seen what a loathsome egomaniacal snake he was dealing with right from the start with SpyGate. Cooperating with Roger's type does nothing to help any situation. If you can't win anyway, you might as well go down swinging as a show of support to your own organization and fans. Accepting the team penalty and justifying it after the fact as being done in the hope of reasonable treatment for Brady is nonsense, or just hopelessly naive. I can't believe Kraft is a stupid person. Why he expected anything to be different this time around is incomprehensible.

 

[Eddie Jurak]

I used to think this but Brady isn't admitting guilt and a federal judge has already shined a light on how bullshit the NFL's handling of this has been. Goodell is not going to pull off any sort of miracle half court buzzer beater where his clown show handling of this suddenly looks wise and balanced.

I think the NFL is leaning on the admission of guilt because they know it's an absolute non-starter and they don't want to settle.

Disagree -I think the league would be thrilled with any settlement in which Brady admitted guilt. It validates them in a way that even an upholding of the full suspension does not.

 

[Bleedred]

Aside from the deference point, not fighting an a fight that he could not win is a lay-up in my view.  I don't think anyone really disputes that he could not get the NFL's ridiculous penalty undone.  I get being put off by his flowery language re Goodell when he announced he was accepting the penalty.  I get being annoyed at his apparent fealty to the owners' club.  But it seems quite possible that those comments were designed, at least in part, to impact Goodell and the other owners in the appeal process.  It turned out that Kraft was dead wrong.  But we've all been wrong before and I think his mistake in this instance was understandable.  I think a lot of people thought that if Kraft played nice, it would have a positive impact on the Brady suspension.  And if it had worked, that would have been a trade I would have been willing to make, especially since Kraft had no prospect of winning had he chosen the Al Davis route. 

People in this thread have been amused at times at the wishcasting going on about this whole process and how the commissioner would rule.  Kraft is guilty of the same thing.   I never accepted the notion that if Kraft "played nice" (whatever that means), then the commissioner would be more lenient in his treatment of Brady in the award.  IMO, this is pure silliness, and if true, reveals a naivete in Kraft that I know with certainty doesn't exist.   Kraft chose to accept the club penalty for two reasons: (i) his chances of winning an appeal were absurdly low and a waste of time and money; and (ii) he did not want to further disrupt his relationship with his fellow billionaires.   I do not believe for one second his statement later that he was surprised that his capitulation didn't have the effect of persuading the commissioner to go softer on Brady.  That was purely playing to the fans after Kraft felt the sting of their criticism for not only accepting the penalty, but also praising Goodell in the process and the pictures of them cavorting at the owners meeting.

 

[dcmissle]

There is no basis for a 2-game suspension. That would be inconsistent with the judge's role legally, and there is no factual predicate for it either.

Now maybe the tree falling in the forest does not matter if there is no one is there to hear it. So if neither side appealed, this would just go away. But he would really be setting himself for reversal if either side took this to the Second Circuit. It would be a ballsy move.

 

[kartvelo]

The NFL is nothing more than fantasy football for billionaires.

 

[Omar's Wacky Neighbor]

There is no basis for a 2-game suspension. That would be inconsistent with the judge's role legally, and there is no factual predicate for it either.

 

(I was getting the boys off to school, so I didnt catch all of it)
 
That's the very point D&C pointed out to Florio after he said it, and Florio went on to explain how it was possible, but then he brought in some discussion of settlement talks, which I thought wouldnt make it a ruling but rather a settlement.

 

[TheoShmeo]

People in this thread have been amused at times at the wishcasting going on about this whole process and how the commissioner would rule.  Kraft is guilty of the same thing.   I never accepted the notion that if Kraft "played nice" (whatever that means), then the commissioner would be more lenient in his treatment of Brady in the award.  IMO, this is pure silliness, and if true, reveals a naivete in Kraft that I know with certainty doesn't exist.   Kraft chose to accept the club penalty for two reasons: (i) his chances of winning an appeal were absurdly low and a waste of time and money; and (ii) he did not want to further disrupt his relationship with his fellow billionaires.   I do not believe for one second his statement later that he was surprised that his capitulation didn't have the effect of persuading the commissioner to go softer on Brady.  That was purely playing to the fans after Kraft felt the sting of their criticism for not only accepting the penalty, but also praising Goodell in the process and the pictures of them cavorting at the owners meeting.

I don't know how you can say what you are saying with such certainty.  I also do not see this as binary.
 
Even if I take as gospel that you are right that Kraft was heavily motivated by not fighting an unwinnable fight and his enjoyment of his relationship with the other billionaires, that does not preclude that he thought that if he played nice, that it would impact Tom positively.  Said differently, Kraft could have had multiple motivations for acting as he did, and none of them preclude the other.
 
"Play nice" means: don't fight a fight you cannot win for the sake of making a point, showing you are a tough guy or otherwise catering to angry Pats fans; say positive things about the Sheriff when you announce your decision.  It was intended as short hand for that.
 
You can call thinking that doing that would impact Roger positively "naive" but I don't see why that would be so.  Goodell is human and not being challenged and having his ego stroked COULD have played a role in what came next.  Why is unreasonable to think that if the Pats accepted the penalty, reduced the war fronts Goodell was facing by half and expressed fealty to the Club, that the person in charge of Tom's penalty might have been influenced by that?  Especially given that Kraft and Roger were supposedly close in the first place, I think it was within the realm of possibility to think that Kraft's actions could have a tit for tat affect.
 
That it completely did not work does not mean it was naive or BS from the get go.

 

[Steve Dillard]

So Kessler had Jay Feely explain to Berman on Monday that as the Jets' kicker aware of fiddling with the K-balls, was never even interviewed by the NFL when they suspended the equipment guy for equipment tampering--that's the kind of inconsistency Berman might have wanted to add to his opinion. Kessler's always thinking: "As long as you're here, Jay..."
http://profootballtalk.nbcsports.com/2015/09/01/feely-did-indeed-tell-judge-berman-about-the-jets-k-ball-incident/

If Berman cites this it would constitute per se reversible error. This is 1) New evidence gleaned during an appeal to change the underlying record (sound familiar) 2) obtained during settlement talks, so inadmissible evidentiary wise and 3) possibly obtained during a side session meaning the other side had no opportunity to respond or examine.

I hate the fact that Feely is blabbing about this. edit:  to the media.   I get the benefit to letting the judge know this as background.

 

[fairlee76]

The NFL is nothing more than fantasy football for billionaires.

Winner!
 
Back to the important matter at hand.  Does "Rat Shit Dumplings" fit better as a stand-in for "Juke Box Hero" or "Cat Scratch Fever?"  I think the answer is both, in different ways.  The length of time that elapses in the Foreigner song before we hear "Juke Box Hero" is a strike against it.  But the slow, drawn-out manner in which Lou Gramm says "Juke...Box...Hero" nicely symbolizes the drawn out nature of the current proceedings.  As to "Cat Scratch Fever," it scores points for how quickly the signature line is delivered and the aggressive guitar brings to mind the anxiety many of us are feeling as we wait for this decision.

 

[dcmissle]

I don't. It is a nice touch to demonstrate with real human beings how perverse this witch hunt is, how corrupt the whole process has been. It's one thing to cite the Vikings game in a footnote. It's another to have a person before you saying , they didn't do anything to me. It is infuriating to any fair minded person. Judge is way too smart to rely on this in any way.

 

[WayBackVazquez]

If Berman cites this it would constitute per second reversible error. This is 1) New evidence gleaned during an appeal to change the underlying record (sound familiar)....

This is not an appeal, and there is nothing preventing the introduction of new evidence in confirmation/vacatur proceedings.

 

[Steve Dillard]

There is when the evidence is via a conversation with the judge, and not in evidentiary form like an affidavit, testimony under oath, etc.

 

[Joshv02]

It was mentioned in the briefing earlier and in this proceeding.  Relying the specifics of what Feely said would be a no-no, but it isn't really isn't new - the gist of it was already in the record.

 

[TheoShmeo]

I assume that Berman had already decided before he met Jay Feely on Monday.
 
But even if that's not true, and even if what Feely said influences his decision, isn't the most likely result that he does not refer to it (the Feely conversation) in the decision and let's it be part of the unstated backdrop?
 
Good luck to the NFL in using what Berman might have heard in a settlement conference as a grounds for reversal.  That would have the affect of discouraging such conferences, and no appeals court will want that.
 
I don't see much good coming from Feely spouting off about this, but I also think it's ice in the winter at this point.

 

[MarcSullivaFan]

There is when the evidence is via a conversation with the judge, and not in evidentiary form like an affidavit, testimony under oath, etc.

Do we know the circumstances under which Feely made these statements? It wasn't entirely clear to me from reading the reports about it yesterday.

 

[bankshot1]

 
Kraft tried the "play nice" approach.  I realize that it failed, but I don't see the point in continuing to beat him up for trying it over that span of time.  Future encounters will most likely be much more chilly.

Kraft played "Flounder" to Roger's "Otter"
 
And to quote Otter to Flounder, "You fucked-up, you trusted us".

 

[WayBackVazquez]

There is when the evidence is via a conversation with the judge, and not in evidentiary form like an affidavit, testimony under oath, etc.

You'll notice I didn't disagree with your points two or three.

 

[Steve Dillard]

WBV, sorry if I was edgy.   This is why its tricky to have the judge also conducting settlement talks.  Most will put it to the Magistrate Judge for precisely that reason of blurring evidence vs. settlement talks.  What is striking is how active Berman has been.  Ah, the benefits of being a senior judge with a limited docket.

 

[Lose Remerswaal]

I'm just worried that "Richard Berman" is close to "Richard Sherman" and that this guy is gonna screw the Patriots, finally.

 

[Otis Foster]

Pacer on auto, a dry hole so far.
 
(Can I record time to client origination?)

 

[mwonow]

I'm just worried that "Richard Berman" is close to "Richard Sherman" and that this guy is gonna screw the Patriots, finally.

 
Makes as much sense as most of the stuff around this now...
 

Pacer on auto, a dry hole so far.
 
(Can I record time to client origination?)

 
Y'know, with a little reworking, you could probably slot this into the haiku thread...

 

[H78]

I have an honest question for those more familiar with federal judges and their general demeanor.
 
I've seen quite a bit of comments over the last few weeks along the lines of, "The NFL doesn't want to piss Berman off..." or "The NFL's lack of cooperation in settlement talks won't go unnoticed by Judge Berman..."
 
Can Berman really rule, in any way whatsoever, based on how much the NFL "pissed him off," so to say? The obvious answer, of course, is "no." He can't just NOT LIKE the NFL and rule against them. I get that and am not asking that. But he is human, and have folks who've spent time in a courtroom with federal judges ever actually seen any of them seemingly rule, in part, because one of the parties were repeatedly difficult to work with? Or, at the end of the day, is it "the judge will always rule with only the most general interpretation of the law in mind."
 
I guess I'm trying to figure out how much the human element of a federal judge plays into their actual decisions. 

 

[Otis Foster]

Pacer on auto, a dry hole so far.
apprehension knots the gut
 
[SIZE=11.9999990463257px] [/SIZE]

 

[Leather]

I have an honest question for those more familiar with federal judges and their general demeanor.
 
I've seen quite a bit of comments over the last few weeks along the lines of, "The NFL doesn't want to piss Berman off..." or "The NFL's lack of cooperation in settlement talks won't go unnoticed by Judge Berman..."
 
Can Berman really rule, in any way whatsoever, based on how much the NFL "pissed him off," so to say? The obvious answer, of course, is "no." He can't just NOT LIKE the NFL and rule against them. I get that and am not asking that. But he is human, and have folks who've spent time in a courtroom with federal judges ever actually seen any of them seemingly rule, in part, because one of the parties were repeatedly difficult to work with? Or, at the end of the day, is it "the judge will always rule with only the most general interpretation of the law in mind."
 
I guess I'm trying to figure out how much the human element of a federal judge plays into their actual decisions. 

 
I think the concern is not so much that it will influence the ultimate decision, but more that it will possibly negatively impact two things (that may, in turn, have additional negative consequences):
 
1) Being obstinate/rude to the judge might cause the judge to give that attorney/party less slack later on.  This might come in the form of denying a borderline objection, or being a hardass about a late filing; and
2) Giving some extra spicy language in an opinion about the behavior or attitude of counsel that is both embarrassing and might piss off the client.

 

[Otis Foster]

 
I think the concern is not so much that it will influence the ultimate decision, but more that it will possibly negatively impact two things (that may, in turn, have additional negative consequences):
 
1) Being obstinate/rude to the judge might cause the judge to give that attorney/party less slack later on.  This might come in the form of denying a borderline objection, or being a hardass about a late filing; and
2) Giving some extra spicy language in an opinion about the behavior or attitude of counsel.

 
 I'd add that it gives a little more substance (if any is needed) to the thrust of the PA's argument, that the NFL is being arbitrary, unreasonable and obdurate in the way it conducted the process.
 
(I have a hard time calling it an arbitration.)

 

[Bone Chips]

 
I'm not going to mention any names, but you can find past clerks on line, and if you look at their law firm bios it appears that Berman hires for one-year terms, or at least did as of a couple of year ago.  Many SDNY judges publish their timing of hiring and policies on the SDNY website, and others require you to go through OSCAR (the law clerk application web site) to get information.  Berman does the latter, so he's not particularly transparent about it.  It appears the prevailing practice in SDNY is to hire for one-year terms. Some judges hire for two-year terms, and stagger them, so there's always a senior law clerk in chambers who has at least a year of experience, but that doesn't seem to be the tradition in SDNY and at least from looking at prior clerks' bios, does not appear to be Berman's practice.  Most district court judges get two clerks, although some can get a third clerk instead of a staff (assistant) position -- usually younger judges who can live without a secretary, but not always.  Some judges have a full time, "permanent" clerk who has been with them for a long time, and then just hire someone to come in each year for a one year term.  It is unclear whether Berman might be in that group, but just from some stuff I've seen online, it doesn't appear that's the case.  It appears he goes with the traditional two new clerks every year, though I guess he could have a third permanent clerk in lieu of an assistant.  Unless he has a perma-clerk, it seems very unlikely he'd have someone still there who started in 2014 -- the bar is in July and most judges bring their clerks in right after the bar.  Usually the way it works is that you have one leave, and one comes in, so the old clerk can train that new clerk, and then you have the second clerk start a couple of weeks later. 

TIFWIW, but I heard from a reliable source that Berman has two clerks, both of whom just started their one year stints on July 1st.

 

[OCST]

I have an honest question for those more familiar with federal judges and their general demeanor.
 
I've seen quite a bit of comments over the last few weeks along the lines of, "The NFL doesn't want to piss Berman off..." or "The NFL's lack of cooperation in settlement talks won't go unnoticed by Judge Berman..."
 
Can Berman really rule, in any way whatsoever, based on how much the NFL "pissed him off," so to say? The obvious answer, of course, is "no." He can't just NOT LIKE the NFL and rule against them. I get that and am not asking that. But he is human, and have folks who've spent time in a courtroom with federal judges ever actually seen any of them seemingly rule, in part, because one of the parties were repeatedly difficult to work with? Or, at the end of the day, is it "the judge will always rule with only the most general interpretation of the law in mind."
 
I guess I'm trying to figure out how much the human element of a federal judge plays into their actual decisions. 

 
Very difficult to say.  The only rule of thumb is, like dcm said, you can't DVOA this stuff.
 
The law says what it says, and one would like to think that cases would get the same treatment 100 times out of 100, no matter who the judge is.  But there is a reason that appellate courts have an odd number of judges - different people looking at the same set of facts can and do apply the law differently to them.
 
How much does the "human element" play into it?  Less than 100%, closer to 0% than 100%, but certainly not 0%.  The thought is: "since you don't know, why give the judge any ammo?"
 
In the past couple of years, I have won 3x (a zoning case, a review of an administrative decision, and a motion for a TRO) that I actively tried to convince my clients not to bring, because I thought the chances of success were <1%.  And so as not to humblebrag, I have also lost a couple that, on paper, you would have given me a 90%+ chance of success, including an appeal a couple of months ago that had devastating consequences for my client (and sent me into a deep depression).  The common factor in these cases, win or loss, was that the judge(s) had in front of them an array of different facts and legal principles upon which the matter could conceivably turn, and chose to focus on those that were not the obvious or expected ones - the decisions were unexpected as a result.  How much of that was the result of the bias of the judge(s), conscious or not?  Did I, or my opponent, say something that swayed the judge?  Who the fuck knows, except to say, x, where 100% > x  > 0%.
 
Kant said: "Out of the crooked timber of humanity, no straight thing was ever made."  Any practicing attorney will tell you the same thing.  This unnerves litigants - they want certainty, even if it's to know that it's "certain" that they have only a 6.5% chance, say, of winning. Most attorneys will decline to predict for this reason.  I'm a plaintiff now, and I keep asking my lawyer to tell me the chance of success in my lawsuit, and she refuses, and jokes with me that I should know better.  Which I do, but still. 

 

[dcmissle]

TIFWIW, but I heard from a reliable source that Berman has two clerks, both of whom just started their one year stints on July 1st.

Judge Berman was assigned this case four weeks later, so yeah, they are useless as tits on a bull. They are good for cite checking, record checking and proofreading but probably little else. Still, the judge has had this for 5 weeks today, which is plenty of time to figure this out and write a first-rate opinion for a highly experienced judge.

 

[H78]

 
Very difficult to say.  The only rule of thumb is, like dcm said, you can't DVOA this stuff.
 
The law says what it says, and one would like to think that cases would get the same treatment 100 times out of 100, no matter who the judge is.  But there is a reason that appellate courts have an odd number of judges - different people looking at the same set of facts can and do apply the law differently to them.
 
How much does the "human element" play into it?  Less than 100%, closer to 0% than 100%, but certainly not 0%.  The thought is: "since you don't know, why give the judge any ammo?"
 
In the past couple of years, I have won 3x (a zoning case, a review of an administrative decision, and a motion for a TRO) that I actively tried to convince my clients not to bring, because I thought the chances of success were <1%.  And so as not to humblebrag, I have also lost a couple that, on paper, you would have given me a 90%+ chance of success, including an appeal a couple of months ago that had devastating consequences for my client (and sent me into a deep depression).  The common factor in these cases, win or loss, was that the judge(s) had in front of them an array of different facts and legal principles upon which the matter could conceivably turn, and chose to focus on those that were not the obvious or expected ones - the decisions were unexpected as a result.  How much of that was the result of the bias of the judge(s), conscious or not?  Did I, or my opponent, say something that swayed the judge?  Who the fuck knows, except to say, x, where 100% > x  > 0%.
 
Kant said: "Out of the crooked timber of humanity, no straight thing was ever made."  Any practicing attorney will tell you the same thing.  This unnerves litigants - they want certainty, even if it's to know that it's "certain" that they have only a 6.5% chance, say, of winning. Most attorneys will decline to predict for this reason.  I'm a plaintiff now, and I keep asking my lawyer to tell me the chance of success in my lawsuit, and she refuses, and jokes with me that I should know better.  Which I do, but still. 

 
Wonderful post, thanks for taking the time. This is exactly what I thought happens, but wasn't sure if "the human element" actually factors - in the real world - into a federal judge's decision. As someone who has never stepped foot into a courtroom for any reason whatsoever, I wasn't sure if decisions were entirely black and white or if, like most other things in life, the "human element" on some level does periodically influence a judge's decision.

 

[bowiac]

Very difficult to say.  The only rule of thumb is, like dcm said, you can't DVOA this stuff.

Everything you just described is true of DVOA and really almost any attempt at statistical predictions. Human factors and just fundamental uncertainty/unpredictability make attempting to predict sports outcomes with much certainty impossible as well. Sure things by advanced sports stats lose, and huge underdogs sometimes win. People can, and do attempt to "DVOA" judicial (and even jury) outcomes. The datasets for litigation outcomes are harder to come by, the samples may be smaller, and the factors more varied, but there's nothing that makes it fundamentally impossible to model.

 

[Monbo Jumbo]

Lay person question.
 
Are judicial opinions proofread?  And if so, who does that?

 

[Myt1]

Between one and a trillion times, depending.

Judge, clerks, possibly administrative assistant.

 

[joe dokes]

Judge Berman was assigned this case four weeks later, so yeah, they are useless as tits on a bull. They are good for cite checking, record checking and proofreading but probably little else. Still, the judge has had this for 5 weeks today, which is plenty of time to figure this out and write a first-rate opinion for a highly experienced judge.
 

 
Even a new clerk can research the hell out of an issue on Day 1. And many can draft substantial portions of opinions. Probably not much on the analytical side, but certainly factual backgrounds, standards of review, trail of the case and the like that make up a significant part of any comprehensive order.

 

[TheoShmeo]

One thing to add to the "piss off the judge" question.
 
To me, it matters the most, or would seem to, when it's a close call.  I've had Judges say when announcing the decision that they viewed it as one that could have gone either way.  This is not unusual, actually, and I am sure that many others have had this experience multiple times.  I have no way to prove this, and it's hardly scientific, but I've had the sense that Judges tend to rule in those situations more for the lawyers they like/respect more.  This is just a gut sense and it's not as if I have been in this situation enough to really know.   At the same time, the thought has occurred to me more than once that the Judge's personal leanings were relevant in the result.
 
All that said, I also think that federal judges more than anything else want to get it right, so my point is truly at the margins and truly aimed at the exceptionally tough and close decisions.

 

[TSC]

This is only getting slightly creepy and stalkerish.
 
Guys, it's just football. Let's pump the breaks a bit, yea?

 

[dcmissle]

 
Even a new clerk can research the hell out of an issue on Day 1. And many can draft substantial portions of opinions. Probably not much on the analytical side, but certainly factual backgrounds, standards of review, trail of the case and the like that make up a significant part of any comprehensive order.

Here is what I would entrust to seasoned clerks:

1. Day 1. "Hey guys, this is an arbitration case. Collect the usual suspects (meaning cases)."

These guys probably don't have a clue.

2. Day briefs come in: "I want you to carefully read every case cited. I want to know whether it is fairly characterized in the memorandum. Is the point holding or dicta? What distinguishes it from the facts and legal framework in this case? How about the procedural posture?"

I would not be comfortable entrusting this to a brand new clerk. And if I ask him or her to do it, it's going to take much longer than with a seasoned clerk. And in NO event am I not double checking their work. So I am reading every single case, the important and seemingly unimportant. Lots of times judges will read only the most important cases.

Thankfully you have good counsel, and the cases are limited. Still, this process goes much more slowly than with experienced clerks.

3. Day briefs come in: Ditto with the factual record -- the Wells Report, exhibits and so forth.

I would be more confident here, but still would read every single thing myself. And it's going to go more slowly.

4. After Briefs come in: "Guys, I want you to outline how you would rule, with the skeleton of an opinion."

Fours weeks in, likely a complete waste of time.

5. Weeks ago: "Guys, I would like you to to draft an opinion'."

See 4 above.

Bottom line: They are brand spanking new, and probably as terrified as they are excited.

 

[Otis Foster]

This is only getting slightly creepy and stalkerish.
 
Guys, it's just football. Let's pump the breaks a bit, yea?

 
I don't know about that.
 
I'm not a litigator (tried my last case probably 40 years ago) but am fascinated with the comments on procedure, judicial comportment and bias, deference to arbitration etc.

 

[TheoShmeo]

TSC, Anyone posting on a message board has already passed the point of "it's just..." in my book.
 
Whether Tom's suspension is vacated is relevant from a football perspective in that Tom is the single most important player on the Patriots.  That decision is in the hands of a single person, a Judge.  Asking about and discussing factors that might impact the decision maker seems to be quite related to whether Tom is likely to be on the field on September 10 and thereafter.  As a result, it's relevant to football.
 
Plus, what else are we going to do in our respective basements?

 

[Kenny F'ing Powers]

TIFWIW, but I heard from a reliable source that Berman has two clerks, both of whom just started their one year stints on July 1st.

Could he be using this case as a learning tool for his new clerks?

 

[JimBoSox9]

Judge Berman was assigned this case four weeks later, so yeah, they are useless as tits on a bull. They are good for cite checking, record checking and proofreading but probably little else. Still, the judge has had this for 5 weeks today, which is plenty of time to figure this out and write a first-rate opinion for a highly experienced judge.

How many cases has he had active on his docket during this time period? Just curious.

 

[mwonow]

TSC, Anyone posting on a message board has already passed the point of "it's just..." in my book.
 
Whether Tom's suspension is vacated is relevant from a football perspective in that Tom is the single most important player on the Patriots.  That decision is in the hands of a single person, a Judge.  Asking about and discussing factors that might impact the decision maker seems to be quite related to whether Tom is likely to be on the field on September 10 and thereafter.  As a result, it's relevant to football.
 
Plus, what else are we going to do in our respective basements?

 
Here in Toronto, I'm hammering "refresh" and wishing that I had a clone to do actual work during my "work day"...

 

[TSC]

 
I don't know about that.
 
I'm not a litigator (tried my last case probably 40 years ago) but am fascinated with the comments on procedure, judicial comportment and bias, deference to arbitration etc.

 
I'm talking about the looking up of previous clerks on LinkedIn, and disucssing them openly here. It's not necessary to push the discussion.

 

[dcmissle]

How many cases has he had active on his docket during this time period? Just curious.

No idea. Another excellent question. I hope he is out of the criminal wheel. I am guessing, and it's only a guess, that things have been fairly quiet. If he were on the bench a lot, had a trial, we'd probably know that.

 

[Otis Foster]

 
I'm talking about the looking up of previous clerks on LinkedIn, and disucssing them openly here. It's not necessary to push the discussion.

 
 
Clarified. Carry on.

 

[Marciano490]

 
Wonderful post, thanks for taking the time. This is exactly what I thought happens, but wasn't sure if "the human element" actually factors - in the real world - into a federal judge's decision. As someone who has never stepped foot into a courtroom for any reason whatsoever, I wasn't sure if decisions were entirely black and white or if, like most other things in life, the "human element" on some level does periodically influence a judge's decision.

Judges - not all - will absolutely go based on feel and whether they can trust an attorney or party.

 

[CaptainLaddie]

 
The prevailing theory that subscribes to the above, and one that I read, is that Berman may choose to split the baby and find a common ground that neither side loves, but that neither side hates enough to spend the time and energy appealing. The thinking is 2 games without an admission of guilt regarding tampering may be it. 
 
Brady would not appeal that IMO. Not so sure about the league. 
 
At this point I think NFL wants Brady falling on his sword. I think they'd rather 1 game and an admission at this point. Goodell NEEDS Brady GUILTY to justify this whole thing.

 
Oh, I think Brady absolutely appeals it.  I think he appeals anything where he's missing a game or paying more than 50k or admitting any kind of guilt.