Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

awallstein

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Nov 17, 2014
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... there is no way for me to see this as anything other than reaching a conclusion based on what they personally believe the outcome ought to be and then finding a way to do it that the law allows for.
So, in other words, a legal opinion?
 

dhappy42

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Regardless of the decision, what's the likelihood that the losing side will file a en banc petition? What's the likelihood that the court will approve such a petition and review the case en banc?

Then, how long does that take? If they lose en banc, can the NFLPA drag this out another season or two? In 2018, Brady will be 40 and probably appreciate the four weeks off. Seriously, it seems to me that it's in the NFLPA's interests, if not Brady's, to take it as far as possible, regardless of the time and cost. A loss in this case means Goodell, or any commissioner, can go Queen of Hearts crazy on any player for almost any infraction, real or imagined, simply by saying four magic words: "integrity of the game."
 

BlackJack

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So, in other words, a legal opinion?
It's one thing for a lawyer to advocate that the law allows whatever it is that their client is trying to do. It is entirely another for a judge to decide based on their personal preferences first and the law second. However that is exactly what SD is describing.
 

awallstein

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It's one thing for a lawyer to advocate that the law allows whatever it is that their client is trying to do. It is entirely another for a judge to decide based on their personal preferences first and the law second. However that is exactly what SD is describing.
Sure, but there's a reason judges/justices tend to decide politically charged cases in accord with their own personal views. The desired conclusion comes first. The requisite legal underpinning arrives afterward.

Edit: and I don't mean to imply that this is bad or even improper. Justice should prevail (if it can); the good guy should win (if that's legally possible).
 
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AB in DC

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This right here is the type of stuff that frustrates me to no end. The NFL had no legal right to Brady's phone.
But did Kessler ever play this card? The whole message during the Goodell hearing was more of a "gee, of course we would have turned it over if we realized it was such a big deal, look we even went back and dug up some more cell phone records for you." You or I might say "hey, you've got no right to the phone in the first place, so what's the difference", but I don't think Kessler even made that case to Berman, did he?
 

JokersWildJIMED

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It is not a given that if the NFL wins here that Brady will serve the 4 game suspension. Goodell refused to address the question when asked a few weeks ago, and the "threat" of future appeals (despite the near zero chance of success) could give the NFL the cover to settle the case in the best interest of the league.
 

AB in DC

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By Parker's and Chin's line of questioning, all of the remaining (actual main) issues of deflation become irrelevant because (1) the original Wells report charged Brady with destroying his phone (Chin - "everyone within 100 yards.."), (2) even if changes to the charges on deflating occurred (Chin calls it "hypertechnical"), they are permitted by the "rough and tumble" arbitration process, and (3) Goodell could have concluded that destroying the cell was conduct detrimental, and could impose 4 games for that alone.
Amazing that our initial reaction (and Florio's, and other) about the phone being a red herring could now gone 180 in the opposite direction -- suspension being upheld because of the destruction, regardless of whether there was actually ball deflation or what.

Not go all V&N here, but it's reminiscent of guys like Scooter Libby getting convicted for obstructing the investigation rather than whatever the investigation was supposed to find in the first place. Or President Clinton's impeachment, which was not about lying in the Paula Jones deposition but about obstructing Kenneth Starr or the other investigations.
 

WayBackVazquez

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Regardless of the decision, what's the likelihood that the losing side will file a en banc petition? What's the likelihood that the court will approve such a petition and review the case en banc?

Then, how long does that take? If they lose en banc, can the NFLPA drag this out another season or two? In 2018, Brady will be 40 and probably appreciate the four weeks off. Seriously, it seems to me that it's in the NFLPA's interests, if not Brady's, to take it as far as possible, regardless of the time and cost. A loss in this case means Goodell, or any commissioner, can go Queen of Hearts crazy on any player for almost any infraction, real or imagined, simply by saying four magic words: "integrity of the game."
There is no "regardless of the decision" likelihood of an en banc petition. You seek en banc rehearing because of the decision. Not just because it went against you, but because (usually) it conflicts with another decision of the same court, or (less commonly) a decision of the Supreme Court, or involves a question of exceptional importance (which is unlikely to be presented here).

It's not going to get dragged out for two seasons. Zero chance. And unless the Second Circuit takes a very long time in issuing its opinion (unlikely based on its expediting of the hearing), or remands to Berman, it's not going to drag out through another season.
 

dhappy42

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But did Kessler ever play this card? The whole message during the Goodell hearing was more of a "gee, of course we would have turned it over if we realized it was such a big deal, look we even went back and dug up some more cell phone records for you." You or I might say "hey, you've got no right to the phone in the first place, so what's the difference", but I don't think Kessler even made that case to Berman, did he?
Kessler made a different point yesterday, that the NFL didn't ask for Brady's phone, but he didn't make it well. He buried it in an answer to Parker.

Judge Parker: "This all strikes me as just hypertechnical. You were on notice going into the hearing that there was spoliation issues with respect to the cell phone and it seems to me — explain to me why you did not have an adequate opportunity to address those. Anybody within 100 yards of this proceeding would have known that the cell phone issue raised the stakes to this thing. It turned it from air in a football to comprising the integrity of a proceeding that the commissioner had convened."

Kessler: "Your honor, let me explain. We had the Wells Report, which spent a huge amount of money, interviewed 60+ witnesses, reviewed millions of documents, looked at this issue of cooperation and did not say that there was some major obstruction. In fact, what they simply noted was a failure to cooperate because Mr. Wells — and this is important — never asked to get the phone. That's undisputed. He wanted a production of texts. He never asked for the phone." [My emphasis.]

A better answer would have been: "Your honor, neither the NFL nor Mr. Wells asked for Mr. Brady's phone. The destruction of the phone arose as an issue only after the NFL's initial rationale for the suspension was debunked and it needed to invent another reason to justify the penalty. Prior to that, Mr. Wells described Mr. Brady as "totally co-operative."
 

dhappy42

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There is no "regardless of the decision" likelihood of an en banc petition. You seek en banc rehearing because of the decision. Not just because it went against you, but because (usually) it conflicts with another decision of the same court, or (less commonly) a decision of the Supreme Court, or involves a question of exceptional importance (which is unlikely to be presented here).

It's not going to get dragged out for two seasons. Zero chance. And unless the Second Circuit takes a very long time in issuing its opinion (unlikely based on its expediting of the hearing), or remands to Berman, it's not going to drag out through another season.
Excuse my poor wording. I meant regardless of which way they decide. I assume both sides consider the issue to be of "exceptional importance." Whether they can convince the court of that is another matter.

I've read that this decision could take 3-5 months. My question, more directly, is how long does it typically take the court to accept or reject an en banc petition. Then, if accepted, how long would it take the entire court to hear and decide on the case?
 

dcmissle

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Amazing that our initial reaction (and Florio's, and other) about the phone being a red herring could now gone 180 in the opposite direction -- suspension being upheld because of the destruction, regardless of whether there was actually ball deflation or what.

Not go all V&N here, but it's reminiscent of guys like Scooter Libby getting convicted for obstructing the investigation rather than whatever the investigation was supposed to find in the first place. Or President Clinton's impeachment, which was not about lying in the Paula Jones deposition but about obstructing Kenneth Starr or the other investigations.
The phone thing is interesting. I'm convinced it's generational.

Back in the summer, some of us gagged when we heard about it. It just flat out sucked as a fact.

At that time, we met with fierce resistance here. Personal property, privacy rights, and so forth.

Well Parker is an old school guy. And he's an old guy. So if it really pisses him off, I am not surprised.

That's why I was so happy when Kyle bounced the case filed by the Union in Minnesota, and deferred to Berman. I looked at Kyle's profile and was convinced we'd burn over this phone business alone.
 

Steve Dillard

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Amazing that our initial reaction (and Florio's, and other) about the phone being a red herring could now gone 180 in the opposite direction -- suspension being upheld because of the destruction, regardless of whether there was actually ball deflation or what.

Not go all V&N here, but it's reminiscent of guys like Scooter Libby getting convicted for obstructing the investigation rather than whatever the investigation was supposed to find in the first place. Or President Clinton's impeachment, which was not about lying in the Paula Jones deposition but about obstructing Kenneth Starr or the other investigations.

I would put a slight gloss on this -- the distinction between the trier of fact (original hearing) and the reviewing court. Under ordinary trial cases, the trier of fact has the right to find facts, unless those facts are clearly incorrect. However, in arbitration, the discretion is even wider, because the arbitrator was selected by the parties to conduct an even less formal fact determination. For example, one side issue that illustrates this is that the Supreme Court has held arbitrator can even disregard the law, but that is not a basis for reversing the arbitration. Think of it like caveat emptor -- the parties can pick the arbitrator, and if they pick an idiot, that was their choice.

So, where an appellate court will review trial findings by the judge or jury as whether the fact is "clearly erroneous," the Court will not vacate a decision unless the award is "completely irrational."

It is the duty of the reviewing court therefore to create or credit ANY basis for the award not being "completely irrational."
Under that framework, it is not "completely irrational" for Goodell to think that destroying a cell phone is evidence of guilt. While 999 of 1000 would question that conclusion if there is little other evidence, or if the evidence of a violation also is based on a further conclusion that 999 of 1000 would not make, the fact that .0000001 % would find this fact still means it is not "completely irrational."

So, Chin and Parker saying the evidence is compelling doesn't really matter, other than perhaps reflecting their motive for finding a way around the decision. What they are really saying is there is "sufficient" evidence to justify what Goodell found.


edit: That is also why Kessler was in such a hard position in responding. In essence, to go down that rabbit hole means you are wasting precious time arguing facts when you know that will get you nowhere -- and would merely confirm the other side's argument that you are asking to reargue facts. I've faced that similar choice several times, and it is hard to bit one's tongue and say something to the effect of "we disagree and could tell you a lot more, but for purposes of this appeal we accept the findings, but the decision is still wrong because....." It is never satisfactory.

edit 2. However, Kessler made that choice at the front end of the appeal, in writing his brief. If you sign off on not arguing facts, then you are stuck with that. You can't focus on narrow technical issues in the brief (without hinting about how screwy Goodel's facts were) and then complain that the appellate judge doesn't seem to share your view of the facts.

edit 3, from Bongo's link, I see that Kessler was invited down that road, and was being careful to stress that he was not arguing facts. I read his comment as misunderstanding why the Panel led him down that path. He seems to be saying "I will argue the facts because you seem to want me to convince you of them." Katmann stops him, and Parker then slaps him down saying "if you wanted to argue the facts, you should have put them in the brief."

Kessler: "I would say here this adjudicator was motivated to create this issue and wanted to justify the fact that generally aware could not support discipline. And that's what happened here. This was an issue that was seized upon, and this goes back...I'm only arguing this because you seem interested in merits issues which are not really for you to decide. That we both agreed to.

Judge Katzmann: "That's not part of..."

Kessler: "It is not, and I'm reacting only, your honor, and I'll be very honest, because I sense that you all are influenced by your view of the facts. And I just want you to know we can test those facts."

Judge Parker: "We're influenced by the briefs you gentlemen wrote."
 
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WayBackVazquez

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Excuse my poor wording. I meant regardless of which way they decide. I assume both sides consider the issue to be of "exceptional importance." Whether they can convince the court of that is another matter.

I've read that this decision could take 3-5 months. My question, more directly, is how long does it typically take the court to accept or reject an en banc petition. Then, if accepted, how long would it take the entire court to hear and decide on the case?
An en banc petition is due 14 days after entry of judgment. In most instances, no judge will call for a vote, the court will not request a response, and the Petition will be denied in a couple of weeks. The thought experiment here is really pretty pointless; this is not a thing that is going to happen. I know it's the most important thing in the world for some of us here, but it's just a case that in all likelihood is going to end in a few months
 

Bongorific

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http://blog.masslive.com/patriots/2016/03/tom_brady_attorney_jeffrey_kes.html

So here's the exchange where Kessler makes his comment on the judges being influenced by their version of the facts. I think his other comment here, about the merits not being for he judges to decide, comes off as more disrespectful. Having said that, it's easier to see what he was saying in this larger context. Particularly when combined with SD's comments about wasting time, which is something I have experienced as well, especially in courts that still use a light timing system.
 

dcmissle

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An en banc petition is due 14 days after entry of judgment. In most instances, no judge will call for a vote, the court will not request a response, and the Petition will be denied in a couple of weeks. The thought experiment here is really pretty pointless; this is not a thing that is going to happen. I know it's the most important thing in the world for some of us here, but it's just a case that in all likelihood is going to end in a few months
We need to put a bullet in this discussion now.

Here is a NY L Jour article about en bancs in the Second Cir:

http://www.friedfrank.com/siteFiles/Publications/A1D9C521FD91B7F046A900FE14B8B72E.pdf

It's pretty old but the point still holds -- camel through the eye of a needle.
 

Ed Hillel

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The phone thing is interesting. I'm convinced it's generational.

Back in the summer, some of us gagged when we heard about it. It just flat out sucked as a fact.

At that time, we met with fierce resistance here. Personal property, privacy rights, and so forth.

Well Parker is an old school guy. And he's an old guy. So if it really pisses him off, I am not surprised.

That's why I was so happy when Kyle bounced the case filed by the Union in Minnesota, and deferred to Berman. I looked at Kyle's profile and was convinced we'd burn over this phone business alone.
Has the Supreme Court taken a case like this, regarding labor law and privacy rights? I'm sure generally they have, but punishing an employer for not handing over a personal cell phone seems like a major issue, which Parker seems gleefully ready to sign off on with his reasoning. I'm sure something like this has been adjudicated, right?

Still really scary that this can set a legal precedent that Goodell can demand a personal cell phone as part of whatever bogus investigation he wants and punish those who deny it. In theory, if the judges rule in line with Parker's questioning, could Goodell demand Peyton's phone as part of an HGH investigation and suspend him 8 games if he refused? That kind of expansive reading of the conduct detrimental clause seems nutso.
 
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bankshot1

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Seeing that all the experts and pundits have Kessler TKOed, how do the amicus briefs filed in support of Brady figure into this if at all? I understood those briefs dealt with the NFL bias/ unfairness in the process more than the Kessler brief.
 

Myt1

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Seeing that all the experts and pundits have Kessler TKOed, how do the amicus briefs filed in support of Brady figure into this if at all? I understood those briefs dealt with the NFL bias/ unfairness in the process more than the Kessler brief.
If we get a cold snap, they could provide some warmth.
 

Myt1

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The phone thing is interesting. I'm convinced it's generational.

Back in the summer, some of us gagged when we heard about it. It just flat out sucked as a fact.
C'mon, pops. I'm just an old soul. ;)

At that time, we met with fierce resistance here. Personal property, privacy rights, and so forth.

Well Parker is an old school guy. And he's an old guy. So if it really pisses him off, I am not surprised.

That's why I was so happy when Kyle bounced the case filed by the Union in Minnesota, and deferred to Berman. I looked at Kyle's profile and was convinced we'd burn over this phone business alone.
I have only the tiniest experience before Parker (on a brief that my old boss argued and present at counsel table) and he struck me as a bit of an authoritarian, which is bad for this case. Also did not seem to have a lot of patience for a wordy answer, even in an area of a general lack of clarity with his question.

Kessler's "I would argue . . . " drives me right the hell up a wall. It's tough to avoid completely, but the use of the conditional is like nails on a chalkboard for me.
 

dhappy42

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Florio lays out five potential outcomes:

1) Uphold
2) Reverse on notice, but not fairness -- back to Berman
3) Reverse on notice and fairness -- back to Berman on other issues
4) Reverse on notice and fairness -- 2nd Circuit resolves other issues
5) 2nd Circuit asks Goodell for clarification on what part of suspension applies to obstruction as opposed to tampering

"The broader point is that plenty of things can still happen with this case, and that there’s a very good chance it will continue to linger much longer than it already has."

http://profootballtalk.nbcsports.com/2016/03/06/spinning-the-tom-brady-case-forward/
 

Myt1

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I tend to doubt it a bit for the same reasons that I thought Berman would try to use the silver bullet of notice. This is largely a public farce in a court system that does serious work. Wrap it up.

Just my $0.02, though.
 

crystalline

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I tend to doubt it a bit for the same reasons that I thought Berman would try to use the silver bullet of notice. This is largely a public farce in a court system that does serious work. Wrap it up.

Just my $0.02, though.
Not that I disagree it should be wrapped up, but this case is a bargaining chip in a $12B/year deal - the CBA - which is worth about $6B to each side. That's not a huge market, but it's not trivial. By comparison DirectTV's revenue is about $30B yearly.

I suppose you'd probably say that this case directly affects profits in a $12B/year industry, but it's not more generally applicable. And in contrast a case confirming the enforceability of a consumer arbitration clause has an impact across a wide swath of companies.

Even though limited to a single company/consortium, while on the face of it this case is about balls in a game, some serious money is riding on the outcome. Labor costs are the NFL's biggest costs, and moving them up or down a few percentage points could dramatically affect the $1B or so profit the owners made this year. The few million spent on this case isn't being thrown away frivolously
 

dcmissle

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Except the players don't care enough about this to pay in negotiations to change it.

Careers are short, the union is relatively week, and the other players are thinking that this will not happen to them.
 

crystalline

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Except the players don't care enough about this to pay in negotiations to change it.
Depends. If the Brady punishment is upheld, the unfettered power Goodell would be seen to have might motivate the players to spend negotiating chits on circumscribing his authority.

And this may not be very important, but there's a bit of payback going on here too. If Goodell takes 4 of Brady's paychecks, that might make the next lead plaintiff in a CBA leverage lawsuit think a little bit before playing hardball with the owners. Probably not, but it's a little bit more negotiating leverage for the owners if so.

So there are some realpolitik issues at play here in a labor negotiation that isn't negligible in size, even if on the surface it's just about balls in a game.

I haven't looked at the NFL numbers closely, but it does seem owners should be very sensitive to player labor costs. It seems last year's revenue was $12B, of which about $6B goes to the players. About $1B was claimed as profit. From the Packers' public financials for 2014, revenue was $324M ($188M from TV), player costs $171M, profit $25M, which roughly matches the overall league proportions (there are some one-time cap costs in those numbers, but they're OK to first order). So then each percentage point of revenue sharing the owners can talk the players down is worth about $3.75M to each owner, which increases their profit a large amount - about 15% of $25M. And that means every bit of negotiating leverage matters.
 
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Myt1

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Except the players don't care enough about this to pay in negotiations to change it.

Careers are short, the union is relatively week, and the other players are thinking that this will not happen to them.
And, I mean, it won't. This is a purely rational B = P x L issue, and the P is tiny.
 

GeorgeCostanza

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Depends. If the Brady punishment is upheld, the unfettered power Goodell would be seen to have might motivate the players to spend negotiating chits on circumscribing his authority.

And this may not be very important, but there's a bit of payback going on here too. If Goodell takes 4 of Brady's paychecks, that might make the next lead plaintiff in a CBA leverage lawsuit think a little bit before playing hardball with the owners. Probably not, but it's a little bit more negotiating leverage for the owners if so.

So there are some realpolitik issues at play here in a labor negotiation that isn't negligible in size, even if on the surface it's just about balls in a game.

I haven't looked at the NFL numbers closely, but it does seem owners should be very sensitive to player labor costs. It seems last year's revenue was $12B, of which about $6B goes to the players. About $1B was claimed as profit. From the Packers' public financials for 2014, revenue was $324M ($188M from TV), player costs $171M, profit $25M, which roughly matches the overall league proportions (there are some one-time cap costs in those numbers, but they're OK to first order). So then each percentage point of revenue sharing the owners can talk the players down is worth about $3.75M to each owner, which increases their profit a large amount - about 15% of $25M. And that means every bit of negotiating leverage matters.
Wow. I'm actually surprised that is all that the owners are pocketing. If those numbers are true across the board then these guys are really living in a house of cards. If the concussion and domestic abuse and general criminality stuff that's constantly in the news really starts to blow up in their face, it could be a very fast tumble down for these owners.
 

edmunddantes

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Is the wait for transcripts long enough that Wallach might be one of the few options before then?


He requested the audio CD and is going to transcribe it himself.
 

ElcaballitoMVP

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Seems to my untrained eye like the NFL did a hell of a job misdirecting the courts, both on Brady's testimony and on which policy the commissioner actually applied in dishing out his penalty. At least so far, according to Wallach's transcript.
 

Bongorific

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IMO, I think Kesler looks better in transcript than the one line tweets coming out during the argument. Although an appellate specialist may have handled somE of the questions better, much of the questioning is focusing on the arbitration hearing, the cell phone, and facts. No one was in a better position to handle those questions than Kessler.
 

Bongorific

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Important points by Kessler on p 42-43. Chin asks if the court should remand if they agree with Kessler on the notice issues. Kessler says no, that would be an affirmation. He points out that if the court disagrees with the lower court and Kessler on notice, that it still should be remanded. He indicates that he has compelling evidence on evident partiality and unlawful delegation of conduct (Troy Vincent). The lower court didn't get to these issues because it already had 3 issues to vacate penalty.

It may be telling how the court handled this. Although Judge Parker asks if those issues are in the briefs, meaning that the court could adequately address them, there were almost no questions on these topics. I think the only one I recall was, I believe Chin, asking what Goodell's motivation would be to uphold the suspension. The evident partiality is a strong argument for Brady, and Berman would likely vacate on those grounds as well judging by the tone of his decision. It also saves Kessler from Parker's comment that the notice argument is "hypertechnical"
 

WayBackVazquez

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IMO, I think Kesler looks better in transcript than the one line tweets coming out during the argument. Although an appellate specialist may have handled somE of the questions better, much of the questioning is focusing on the arbitration hearing, the cell phone, and facts. No one was in a better position to handle those questions than Kessler.
Well, except maybe a well-prepared appellate specialist. The record in this case is not complex. There was a one (or two) day hearing before Goodell, and several hours of argument before Berman. Appellate lawyers routinely are asked to digest weeks of in-court testimony and sometimes years worth of motion practice in preparing an appeal.
 

PaulinMyrBch

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I'm with WayBackVazquez. I think an appellate specialist was the way to go, for several reasons, but mainly because I find myself reading Kessler's responses wishing he has said things more affirmatively. Clements responses, even full of bad facts, come across better.
 

awallstein

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It's really too bad Kessler isn't awarded any points for each iteration of, "let me explain why"; "this is very, very important"; and, "I will now try to answer that question."
 

dcmissle

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Have yet to get to the transcript, but I am interested in the colloquy relating to the alleged Clement lie. Where is it? How, if it all, did Kessler respond to it?

If there is no response, one of two things are true. Either it was not a lie, but instead at most a mild exaggeration. Or Kessler was asleep at the switch, and this was a really bad piece of lawyering on his part. His big strength was supposed to be an absolute command of the record.
 

dhappy42

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It's absolutely mind boggling and infuriating that Kessler didn't correct Clement on this. This is one of the first points I make as to the lack of credibility that Roger Goodell has when arguing/discussing with folks. That Kessler didn't shove this up Clement's ass is pathetic.
IANAL. Can Kessler raise this in subsequent briefs to the court? Or is it past "pencils down, hand in your tests" time?