Alan Millstein: Brady's chances of en banc hearing dramatically improved with latest amicus filings

Today

1. Daniel Wallach‏@WALLACHLEGAL
It's been 4 weeks since Tom Brady and the NFLPA filed their motion for rehearing en banc with the Second Circuit in #Deflategate. Tick-tock.

2. David Evans ‏@devansADR 10h10 hours ago
@WALLACHLEGAL Now that all sorts of gambling is almost legal in NY, I'm betting the 2d Cir. asks NFL to respond to the petition this week.

3. Daniel Wallach ‏@WALLACHLEGAL 10h10 hours agoFort Lauderdale, FL
@devansADR Eyeing this week too. Hopefully not today though,

Danger Zone said:

2. David Evans ‏@devansADR 10h10 hours ago
@WALLACHLEGAL Now that all sorts of gambling is almost legal in NY, I'm betting the 2d Cir. asks NFL to respond to the petition this week.

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Not sure if he's serious..... can't say I see what the one has to do with the other.....

XLIX said:

Not sure if he's serious..... can't say I see what the one has to do with the other.....

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Don't think he's saying one has to do with the other. At first I thought he was making a connection, but then reread it. ... Just a bad attempt at humor. Since gambling is legal now, he wants to bet.

JetFan79 said:

Don't think he's saying one has to do with the other. At first I thought he was making a connection, but then reread it. ... Just a bad attempt at humor. Since gambling is legal now, he wants to bet.

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ohhhhhhhhhhhhhhh. ok thanks. Ya I think you're right but I totally didn't read it that way at first.

Is it a given that the NFL gets to respond? Or is it possible the court says one of our judges called it one way, three others reversed him on a 2-1 split, that's close enough to have it heard by the entire court?

Also, might they be stalling to see how the Peterson appeal goes?

PatsFanSince74 said:

There is little doubt in my mind that Chin, who was a very fine labor lawyer, who was mentored by the late Judith Vladeck, an icon of modern labor law, and who is a fine Judge, was giving Kessler the opening to make the arguments that Olson has now made in his brief regarding the shifting grounds of the NFL's "overwhelming evidence." He's an Appellate Judge and he wasn't going to come right out and say, "Gee, Mr. Kessler, isn't it possible that the NFL has just been making its evidence up as it goes along?" Instead, he asked a provocative question to test Kessler and Kessler got flustered and lost his cool.

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So even though he suspected the NFL has been "making up its evidence as it goes along" (in your opinion), he decided to rule against Brady, and not just rule against him and perhaps remand it back to Berman to decide on the other issues of the case, he decided to believe everything NFL said and reinstate Brady's suspension... all because he didn't like Kessler's attitude? I don't buy it.

If Chin was truly giving Kessler an opportunity to support Chin's beliefs that the NFL was making crap up, an honest judge wouldn't rule against Brady just because he didn't like Kessler's attitude even though the Judge feels Brady is innocent. And he definitely wouldn't forgo sending it back to Berman to investigate the other issues of the case and instead uphold everything the NFL claimed.

Danger Zone said:

Today

3. Daniel Wallach ‏@WALLACHLEGAL 10h10 hours agoFort Lauderdale, FL
@devansADR Eyeing this week too. Hopefully not today though,

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Just curious why Wallach hoping to not here from them today?

QuantumMechanic said:

Try #1. Not mention having the best TV theme song ever.

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How is Cannon not in this conversation?
Anyone that out of shape yet can still chase down and capture the bad guy is tops in my book...

Mission Impossible. Pink Panther Cartoon. It's a toss up.

n6249c said:

Is it a given that the NFL gets to respond? Or is it possible the court says one of our judges called it one way, three others reversed him on a 2-1 split, that's close enough to have it heard by the entire court?

Also, might they be stalling to see how the Peterson appeal goes?

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No it is not a given the NFL gets to respond. The panel can decide to hear the case without any NFL response.

The conventional wisdom is that if they order the NFL to respond, it means they're considering it, which is certainly better than just dismissing it out of hand. However, conventional wisdom has been pretty useless in these proceedings.

GrogansArmy said:

Just curious why Wallach hoping to not here from them today?

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I believe he said something about how there is DFS legislation in NY, CA3 is ruling on legal sports gambling, CA8 is ruling on Peterson and CA2 is ruling on en banc for Brady. Being that all 4 events are major news, he said something last week about "geez I hope they don't all come out on the same day" or something like that.

GrogansArmy said:

So even though he suspected the NFL has been "making up its evidence as it goes along" (in your opinion), he decided to rule against Brady, and not just rule against him and perhaps remand it back to Berman to decide on the other issues of the case, he decided to believe everything NFL said and reinstate Brady's suspension... all because he didn't like Kessler's attitude? I don't buy it.

If Chin was truly giving Kessler an opportunity to support Chin's beliefs that the NFL was making crap up, an honest judge wouldn't rule against Brady just because he didn't like Kessler's attitude even though the Judge feels Brady is innocent. And he definitely wouldn't forgo sending it back to Berman to investigate the other issues of the case and instead uphold everything the NFL claimed.

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Agreed. I think a more likely scenario is that he (Chin) got the executive summary ( read- glossed over Cliff Notes version of the case) of the case from his law clerks and essentially 'mailed it in' not studying in detail the nuts and bolts of the case as Berman did... When you read the NFL version, it looks solid until you realize that they a) lied to the court as in whether Brady's counsel was present for all interviews and the number of times 'deflator' was used b) cherry picked data to make it look worse c) shaded the truth as with the data from Exponent.......
He didn't 'do his job" and his line of questioning showed that...

Patsfanin Philly said:

Agreed. I think a more likely scenario is that he (Chin) got the executive summary ( read- glossed over Cliff Notes version of the case) of the case from his law clerks and essentially 'mailed it in' not studying in detail the nuts and bolts of the case as Berman did... When you read the NFL version, it looks solid until you realize that they a) lied to the court as in whether Brady's counsel was present for all interviews and the number of times 'deflator' was used b) cherry picked data to make it look worse c) shaded the truth as with the data from Exponent.......
He didn't 'do his job" and his line of questioning showed that...

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Once I heard the "evidence of ball-tampering is compelling, if not overwhelming" comment from Chin, I thought Brady was in trouble. We've all heard and read the opinions that Chin didn't really believe that and was trying to be provocative and attempting to prod Kessler, etc. I'm the furthest thing in the world from a legal expert, but I wasn't buying it when I first heard/read it and I'm not buying it now. I believe he was poorly-prepared.

DaBruinz said:

I know what you have stated.. Doesn't change the fact that both Chin and Parker focused more on the evidence and not on the procedure.

Personally, if appellate judges are being provocative and obnoxious, they don't belong on the bench. Their job is supposed to be to determine if the lower court made an error based on the arguments presented. but that is just me.

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As I said, I've posted at length on this in several threads and am not going to rehash it here other than to repeat that it's been my view that Chin focused on the evidence to give Kessler a chance to address the process. Whenever I state that I make it clear that I know I am in the minority and that I am not trying to change people's minds.

But if you look into Chin's background, he was a top notch labor lawyer, very liberal, very open to finding misdeeds by management in their relations with labor. It is reasonable to read his line of questioning as a set up. Olson understood that and opened his brief with the very points that Chin was looking to elicit in his line of questioning.

Remember, Parker, who is a political hack, wrote the opinion.

As far as how Appellate and SCOTUS Justices behave, I suggest you not take up Appellate Law as a second career.

If you want to see provocative and obnoxious, read some of the late Antonin Scalia's or Ruth Bader Ginsburg's questioning of lawyers before the SC. Not for the thin skinned, I assure you. It's all in the name of getting lawyers off their high horses and to stop them from making their prepared speeches and getting at the point the Justice/Judge thinks is important.

In this case, it was the inconsistency in the NFL's use of "evidence" to "convict" Brady. Think of Chin's questioning as a high, hard fastball that Olson would have hit out of the park, after chuckling, instead of losing his cool.

GrogansArmy said:

So even though he suspected the NFL has been "making up its evidence as it goes along" (in your opinion), he decided to rule against Brady, and not just rule against him and perhaps remand it back to Berman to decide on the other issues of the case, he decided to believe everything NFL said and reinstate Brady's suspension... all because he didn't like Kessler's attitude? I don't buy it.

If Chin was truly giving Kessler an opportunity to support Chin's beliefs that the NFL was making crap up, an honest judge wouldn't rule against Brady just because he didn't like Kessler's attitude even though the Judge feels Brady is innocent. And he definitely wouldn't forgo sending it back to Berman to investigate the other issues of the case and instead uphold everything the NFL claimed.

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No. A judge who was doing his job would have ruled as Chin did when Kessler didn't address his questions and actually insulted the Court. There is no greater supporter of Brady on this Board than am I, but, to be honest, if I were Chin and if Kessler had spoken to me in the tone that he did during the hearing, I might well have told him to **** off and voted against him as well.

Jackson 2 said:

Once I heard the "evidence of ball-tampering is compelling, if not overwhelming" comment from Chin, I thought Brady was in trouble. We've all heard and read the opinions that Chin didn't really believe that and was trying to be provocative and attempting to prod Kessler, etc. I'm the furthest thing in the world from a legal expert, but I wasn't buying it when I first heard/read it and I'm not buying it now. I believe he was poorly-prepared.

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Then why does Olson's brief focus on exactly the question that Chin was asking?

Why does Olson go to great lengths to state that it was Goodell's action of constantly shifting the grounds of what was considered "evidence" that invalidates the NFL's position?

Why does Olson argue that, by continuously searching for new "evidence," the NFL was violating the spirit of the CBA, which is the essence of an Arbiter creating his "own brand of industrial justice."

Contrary to those who suggest that Chin was poorly prepared, he was impeccably prepared to raise the one point that needed to be addressed.

Olson understood this. Kessler did not.

PatsFanSince74 said:

Then why does Olson's brief focus on exactly the question that Chin was asking?

Why does Olson go to great lengths to state that it was Goodell's action of constantly shifting the grounds of what was considered "evidence" that invalidates the NFL's position?

Why does Olson argue that, by continuously searching for new "evidence," the NFL was violating the spirit of the CBA, which is the essence of an Arbiter creating his "own brand of industrial justice."

Contrary to those who suggest that Chin was poorly prepared, he was impeccably prepared to raise the one point that needed to be addressed.

Olson understood this. Kessler did not.

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I gave it a like because there's not vote for, "I hope you are right" .

PatsFanSince74 said:

Then why does Olson's brief focus on exactly the question that Chin was asking?

Why does Olson go to great lengths to state that it was Goodell's action of constantly shifting the grounds of what was considered "evidence" that invalidates the NFL's position?

Why does Olson argue that, by continuously searching for new "evidence," the NFL was violating the spirit of the CBA, which is the essence of an Arbiter creating his "own brand of industrial justice."

Contrary to those who suggest that Chin was poorly prepared, he was impeccably prepared to raise the one point that needed to be addressed.

Olson understood this. Kessler did not.

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Olson's brief focuses on the items that Berman didn't render a decision on. They aren't remotely close to the items that Chin was asking about. Chin was asking about the evidence. Not procedure. Which was supposed to be what was in front of him.. If you want a judge who went out of his purview, Chin is your man.

You keep making excuses for Chin and his behavior and you still haven't convinced anyone that Chin acted accordingly..

DaBruinz said:

Olson's brief focuses on the items that Berman didn't render a decision on. They aren't remotely close to the items that Chin was asking about. Chin was asking about the evidence. Not procedure. Which was supposed to be what was in front of him.. If you want a judge who went out of his purview, Chin is your man.

You keep making excuses for Chin and his behavior and you still haven't convinced anyone that Chin acted accordingly..

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As I've said about a million times, I'm not trying to convince anyone. It's just my view based on Chin's history. You disagree. No prob. Let's stop wasting each other's time.

But, here is the opening of the first substantive paragraph of Olson's brief, in which he notes the shifting evidence on which Goodell relied to make his "decision:"

"...Even though his arbitral authority was limited to hearing appeals of disciplinary decisions, Goodell “affirmed” Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision." (my underline)

Olson's entire brief focuses on the shifting evidence on which Goodell relies for disciplining Brady. That is exactly what Chin was pursuing. He states that the evidence looks "overwhelming." That opened the door for Kessler to argue that the Commissioner changed the "evidence" to suit his purposes.

But, once again, I'm not trying to change anyone's mind on this. I'm in a small minority that sees it this way. That's fine with me, but I'm done with arguing about it.