Mahoney makes it sound like a well respected federal judge completely and utterly dropped the ball and made egregious mistakes in his ruling. IANAL, so I guess that's possible. Team Brady could lose, but I'm skeptical it's as slam dunk of a case as Mahoney makes it out to be.
I think that Mahoney's view of what will happen is what the league's view of the law is and is the reason why the league decided to appeal in the first place. I've also heard that the league is convinced Brady is guilty because his phone was destroyed and thus was willing to overlook all of the other issues that call into question the report's conclusion about Brady.
Here are a few other things I thought I would add, based on my experience and practice before both of these courts:
First, Berman is not a well-respected SDNY judge. He is viewed as cantankerous and a bit of a maverick. While SDNY judges in general are rarely reversed (I think the average of the court is that less than 10% of decisions are reversed, if not lower), Berman is reversed far more often. This, of course, does not mean he will be reversed here, but Berman has a reputation of making errors and that often means that the Second Circuit scrutinizes what he does more often. That's in contrast from the usual approach of reviewing an SDNY judge's decision, which is to show the judge great deference (even if that's not the standard of review).
Second, as noted, the characterizations of Katzmann are accurate. The other thing to add is that Katzmann has 5 clerks as chief. In general, 3 of those clerks come from Judge Rakoff's chambers (SDNY) because Katzmann and Rakoff have an arrangement where they hire the same clerks at the same time and those clerks first work for Rakoff and then work for Katzmann. That means that three of Katzmann's clerks were likely with Rakoff when Berman issued the initial decision.
Rakoff could not be more different than Judge Katzmann in personality. Rakoff is the judge who challenged the SEC practice of permitting companies to settle cases with the SEC without admitting fault. Rakoff, like Katzmann, is ridiculously smart. The word on the street is that Rakoff thinks that Berman's decision in the Brady case was wrong and that Rakoff didn't hesitate to say as much when it came down. Who knows whether Rakoff actually thinks this or whether he influenced his former clerks by expressing such a view, but, if true, that's not a great thing because it predisposes the clerks to Rakoff's views.
Third, Clement's involvement in the appeal is really big from an appellate court standpoint. If he's not the best appellate lawyer in the country, he's the second best. For the Second Circuit, hearing Clement argue makes this an even more exciting case because he is such a good appellate lawyer. It is like going to a Sox playoff game and getting to see King Felix and David Price pitch on the same day.
That said, in general, oral argument is for show. 99% of appellate cases are decided before oral argument and based on the briefs. To the extent that judges have any uncertainty, they will ask questions geared toward that, or they will throw out questions/arguments to try to influence their colleagues to his/her viewpoint.
That's all I got for now. Like all of you, I'm very interested to hear how this goes today.