One lawyer's differing opinion on the recent court transcripts

Apologies if this has been posted before.

http://www.patspulpit.com/2015/8/21/9187349/judge-bermans-awareness

Joe Patrice, Editor of Above the Law, had this to say about it:

Having litigated in front of Judge Berman a few times, if he’s telling one side they’re losing, it means they’re winning. He transparently tries to bully the stronger side into settling. He’s notorious for it. Brady may still prevail, but everything we’re hearing makes me think it’s "more likely than not" that the NFL will prevail if it comes down to it.

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Presumably when Brady headed to New York last Tuesday, he THOUGHT it was to finalize a settlement. Someone -- either the NFL or the magistrate or Berman led him to believe it was close. The next day, Judge Berman criticized the NFL again.

I don't what to make of any of this.

Ok, now someone post something that says the opposite of this.

MagicMarker said:

Presumably when Brady headed to New York last Tuesday, he THOUGHT it was to finalize a settlement. Someone -- either the NFL or the magistrate or Berman led him to believe it was close. The next day, Judge Berman criticized the NFL again.

I don't what to make of any of this.

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That isn't what happened. Judge Berman ordered both sides to meet with Goodell and Brady. No one ever even rumored a settlement was close.

Alan Milstein has argued in front of Judge Berman in the past and he is convinced that Brady will win. So we can't put any more stock in this guy than anyone else.

I am sure Judge Berman has hammered the side with the stronger position a lot, but I am sure he has also hammered the side with the weaker position too but that side just is less willing to settle.

Patrice's mistake is presuming that all parties are acting rationally. Berman's goal is to encourage settlement, so he's going to "bully" the side that needs to come off their settlement demands more in order for an agreement to be reached. Usually that's going to be the side with the stronger case.

But what if the weaker side is irrationally overconfident (or at least acting that way due to outside factors) and making unreasonable demands for settlement? Is Berman's going to criticize the stronger side more if that side is already offering more reasonable terms in settlement talks? Of course not.

lamafist said:

Patrice's mistake is presuming that all parties are acting rationally. Berman's goal is to encourage settlement, so he's going to "bully" the side that needs to come off their settlement demands more in order for an agreement to be reached. Usually that's going to be the side with the stronger case.

But what if the weaker side is irrationally overconfident (or at least acting that way due to outside factors) and making unreasonable demands for settlement? Is Berman's going to criticize the stronger side more if that side is already offering more reasonable terms in settlement talks? Of course not.

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Yeah, let's say he is going to find for Brady. If the NFL isn't willing to negotiate a settlement in good faith, how is hammering Brady and going light on the NFL going to change the NFL's stance if Judge Berman wants to push for a settlement?

One way or another I just want this BS to be over and done with. If suspension stands so be it there isn't a damn thing any of us can do about it. Football will happen whether Brady misses or doesn't miss any games, but hopefully he is playing week 1.

In other words, Berman is stupid, believing that he's fooling people when he really isn't.

OK, that's one theory ...

I might agree with this if the judge had given any semblance of agreeing with ANY argument the NFL has made so far. Like, seriously, any inkling of agreement. He even gave them a few layups they kicked away. Contrast this with Kessler. I can't see it.

pdangle said:

I might agree with this if the judge had given any semblance of agreeing with ANY argument the NFL has made so far. Like, seriously, any inkling of agreement. He even gave them a few layups they kicked away. Contrast this with Kessler. I can't see it.

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I agree. I'm sure Judge Berman doesn't much care what people think of him, but reading the last two transcripts, at this point he is so publicly favoring Brady and wrecking the NFL position, that he would look really stupid now to rule for the NFL IMO.

hypotherion said:

Having litigated in front of Judge Berman a few times, if he’s telling one side they’re losing, it means they’re winning. He transparently tries to bully the stronger side into settling. He’s notorious for it. Brady may still prevail, but everything we’re hearing makes me think it’s "more likely than not" that the NFL will prevail if it comes down to it.

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One of my close relatives is a judge, and she said she does this all the time, which is why I didn't dismiss Munsen's article out of hand like some did.(That...and I've explicitly gone chicken little over this topic....)

I've noticed commentators (this one included!) are way too willing to read motives from lines of questioning. It is nearly impossible. For some judges, it may be transparent, but not usually. While you may think they have to do something (e.g., Berman must vacate because of Pash), in reality things are typically more complex, with conditions inside of conditions they are considering, all sandwiched inside different hierarchies of priorities. Plus, judges typically have a little bit of a rebellious streak in them, so they don't mind doing exactly the opposite of what you think they have to do (if they think it is right, anyway).

But I am heartened by the fact that her first goal genuinely seems to simply get it right, that's what she worries about more than anything.

Poker said:

I agree. I'm sure Judge Berman doesn't much care what people think of him, but reading the last two transcripts, at this point he is so publicly favoring Brady and wrecking the NFL position, that he would look really stupid now to rule for the NFL IMO.

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You'd think, but many judges revel in bucking expectations. It sometimes seems like a badge of honor....

I have no idea how the NFL could possibly win. Precedent says it won't and the CBA says it won't. How exactly do they win? Parsh not testifying and the late rebuttal alone can be reason to vavacate. Why are people saying he might have to uphold? Clearly he doesn't have to.

Rob0729 said:

Alan Milstein has argued in front of Judge Berman in the past and he is convinced that Brady will win. So we can't put any more stock in this guy than anyone else.

I am sure Judge Berman has hammered the side with the stronger position a lot, but I am sure he has also hammered the side with the weaker position too but that side just is less willing to settle.

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Depends if Milstein also had the same setup where Berman was killing the team which won eventually.

None of this has gone the way we expected.
We thought the Ideal Gas Law would be the end of it soon after the Colts game....not
We thought the Wells Report would be an honest effort at factfinding....not
We thought the appeal with Goodell would result in the lessening of the suspension.....not
We thought Kraft would fight for his team/GOAT/reputation....not
We thought Berman would vindicate Brady.........???

Froob said:

I have no idea how the NFL could possibly win. Precedent says it won't and the CBA says it won't. How exactly do they win? Parsh not testifying and the late rebuttal alone can be reason to vavacate. Why are people saying he might have to uphold? Clearly he doesn't have to.

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Above I wrote:

While you may think they have to do something (e.g., Berman must vacate because of Pash), in reality things are typically more complex, with conditions inside of conditions they are considering, all sandwiched inside different hierarchies of priorities.

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This also holds of people saying he must uphold. It's almost like they have never interacted with a real judge. Whenever someone finds the one reason the judge must do X, and the case is sufficiently complicated that there are multiple competing precedents, then usually I stop listening to the person. He has already stated that he is not bound to uphold (otherwise what's the point of this entire circus in court: it is almost insulting that the NFL even suggests such a thing). The problem is the CBA is skewed so much in favor of the commish, Berman may have to do what is morally wrong in order to do what he thinks the law requires.

That's what it ultimately will likely come down to. Do one of the four reasons to vacate the suspension hold, or did Goodell actually follow the CBA closely enough, as despicable as it is, such that Berman feels he can't justifiably do anything about it? That's the crux. When you answer one way, you end up with uphold (and articles like Munsens). When you go the other way, you vacate.

We are at least lucky that there isn't much middle ground for Berman here: he either vacates or uphold. So he can't pull his legal ninja forever, he will eventually have to decide something if the sides refuse to settle.

Patsfanin Philly said:

None of this has gone the way we expected.
We thought the Ideal Gas Law would be the end of it soon after the Colts game....not
We thought the Wells Report would be an honest effort at factfinding....not
We thought the appeal with Goodell would result in the lessening of the suspension.....not
We thought Kraft would fight for his team/GOAT/reputation....not
We thought Berman would vindicate Brady.........???

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Everything before now is thrown out the window though. Everything before now was controlled by Goodell and the NFL who's only objective was to smear Brady's and the Pats' names and get to the truth (i.e. manufacture evidence of being more likely than not that Brady was generally aware of an equipment violation and then spin it into he was the mastermind of a grande cheating scheme to destroy the integrity of the league).

Judge Berman may rule against Brady, but it will be for totally different reasons than before. Everything up to now was an abuse of power by Goodell. If the ruling goes against Brady, it will be because the Judge's hands are tied by Federal law.

Patsfanin Philly said:

None of this has gone the way we expected.
We thought the Ideal Gas Law would be the end of it soon after the Colts game....not
We thought the Wells Report would be an honest effort at factfinding....not
We thought the appeal with Goodell would result in the lessening of the suspension.....not
We thought Kraft would fight for his team/GOAT/reputation....not
We thought Berman would vindicate Brady.........???

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We thought Brady would go to the mat defending his reputation, and he has.
We thought Kessler would shred the Wells Report in a way that would hopefully make it to the public, and it did.
We hoped that the entire facade of 'independence' would be shredded if any of he defails ever made it out to the public, and it was.

In short, almost everything you've cited draws directly back to "the ball was in Goodell's court, and he acted in a way that defied all reasonable judgment".

The ball is no longer in Goodell's court, and since that became the case every development has been favorable. I'm not claiming that it'll stay that way, but there's no reason at all to regard "Goodell acted in bad faith" as evidence that Berman's going to make an unfavorable ruling. He might, and we'd be foolish not to be prepared for that, but this is a different ballgame.

I just don't know how AP and Ray Rice win but Brady doesn't. Rice's argument seems to have been on similar grounds.