#DFG: Canceling the Noise

[dynomite]

This is part of why I think Berman may issue the order toward the end of the day, and I am certain that he wants to issue the ruling as quickly as possible:

This is a picture of him walking into court this morning: http://www.bostonglobe.com/2015/09/01/judge-says-ruling-yet-deflategate-case/oD2RNjKS6XzFwOhKHm7PuN/story.html

Judges HATE this kind of shit. Federal judges have to deal with serious cases and occasionally very dangerous people. Many judges don't list their phone number and I know one who tries not to take the same route home every day.

 

[jimbobim]

Michael McCann ‏@McCannSportsLaw  2m2 minutes ago
Michael McCann retweeted Dennis and Callahan
Fair to say harder decision to write is one where judge does the unconventional--like vacating an arbitration award.
Michael McCann added,




Dennis and Callahan @DandCShow
Since Article 46 is perceived to be relatively air tight this would seem to favor Brady right? https://twitter.com/McCannSportsLaw/status/638823360038768641 …





4 retweets3 favorites
 

 

[edmunddantes]

 
Michael McCann ‏@McCannSportsLaw  2m2 minutes ago
Michael McCann retweeted Dennis and Callahan
Fair to say harder decision to write is one where judge does the unconventional--like vacating an arbitration award.
Michael McCann added,




Dennis and Callahan @DandCShow
Since Article 46 is perceived to be relatively air tight this would seem to favor Brady right? https://twitter.com/McCannSportsLaw/status/638823360038768641 …





4 retweets3 favorites
 

 

O, that way madness lies; let me shun that;
No more of that. - King Lear
 
I'm going to have to take a step back. Too easy to work one self up into any side of the speculation. Hopefully this ends sooner rather than later.

 

[staz]

Guys, seriously -- here's what it means...

Guys, it's...

 
Guys, stop it already. Nobody knows shit. Including you.

 

[OCST]

This is part of why I think Berman may issue the order toward the end of the day, and I am certain that he wants to issue the ruling as quickly as possible:

This is a picture of him walking into court this morning: http://www.bostonglobe.com/2015/09/01/judge-says-ruling-yet-deflategate-case/oD2RNjKS6XzFwOhKHm7PuN/story.html

Judges HATE this kind of shit. Federal judges have to deal with serious cases and occasionally very dangerous people. Many judges don't list their phone number and I know one who tries not to take the same route home every day.

 
Over the judge's left shoulder, on the street behind that park, is an awesome little hole-in-the wall where you can get kickass pork dumplings, 5 or 6 for $1.  They're probably full of rat shit, but boy are they all kinds of awesome.

 

[Harry Hooper]

OK, we need to get rat shit dumplings into the thread title.

 

[dcmissle]

I agree with Denny about the usefulness of the speculation he commented on.

I will add that this judge is no rube. He knew this day would probably come. Still think this opinion has been in the works for weeks.

One other thing -- it is probably a lengthy opinion.

 

[OCST]

OK, we need to get rat shit dumplings into the thread title.

 
Goes nicely to the tune of 'Juke Box Hero'

 

[mandro ramtinez]

Berman's tie game is on point.

 

[koufax32]

The only way this can be read positively is if was true that Berman intended to make his ruling today. Am I correct in saying that idea was speculation?

If all of these DFG threads are not merged and pinned all mods should lose their jobs.

Or be forced to read each post in one sitting.

 

[wiffleballhero]

It has only been 226 days since the AFCCG so I don't see the rush.

 

[nattysez]

I agree with Denny about the usefulness of the speculation he commented on.

I will add that this judge is no rube. He knew this day would probably come. Still think this opinion has been in the works for weeks.

One other thing -- it is probably a lengthy opinion.

 
He has other cases to hear and otherwise work on, and no matter how good a first, second and third draft his clerk put together, you can be sure Berman is trying to make sure this opinion is perfect.  He's probably got other judges' clerks proofreading it and double-checking the quotes and cites just to get fresh eyes on the ruling before hitting "send."  Doing all that takes time, especially if the ruling is long. 

 

[Joe D Reid]

 
Over the judge's left shoulder, on the street behind that park, is an awesome little hole-in-the wall where you can get kickass pork dumplings, 5 or 6 for $1.  They're probably full of rat shit, but boy are they all kinds of awesome.

Tasty Dumpling, I assume? You can hear the blood in your ears after eating there because of the sodium content, but damn they're good.

 

[Yaz4Ever]

Eating rat shit dumplings could put a person into a coma.

 

[koufax32]

 
Goes nicely to the tune of 'Juke Box Hero'

Standing in line at Bradley and let out a loud guffaw at this. Thanks.

 

[Ed Hillel]

 
Over the judge's left shoulder, on the street behind that park, is an awesome little hole-in-the wall where you can get kickass pork dumplings, 5 or 6 for $1.  They're probably full of rat shit, but boy are they all kinds of awesome.

 
Holy fuck, that place is AWESOME. The pork buns are great, too. No joke, it's probably the thing I miss most about New York.

 

[Captaincoop]

 
Goes nicely to the tune of 'Juke Box Hero'

 
I just spit half of my diet coke out.  Also have 'Rat Shit Dumplings' by Foreigner in my head now.  Thank you so much.

 

[OCST]

Tasty Dumpling, I assume? You can hear the blood in your ears after eating there because of the sodium content, but damn they're good.

 
I don't know the name of it, I think that's it.
 
Had lunch there a couple of weeks ago, when I had to push a bunch of paper at the New York State courthouse (next door to the fed courthouse where Berman is).  This cost $2:
 

 

[TheoShmeo]

I don't know what the delay to the end of the week means.
 
I do know that this will be a heavily scrutinized decision and his ruling will be the subject of an appeal.  And I suspect that he will never write another opinion that will get this amount of attention. 
 
That he is taking his time to get it right is no surprise to me.
 
I'm sure there are other reasons for the delay and that giving the parties one last chance to settle is one of them.  Going to the trouble of issuing such an odd order is consistent with that. But don't underestimate Berman's sense of pride as a factor in the timing.

 

[mandro ramtinez]

 
I don't know the name of it, I think that's it.
 
Had lunch there a couple of weeks ago, when I had to push a bunch of paper at the New York State courthouse (next door to the fed courthouse where Berman is).  This cost $2:
 

They even vaguely look like rats.

 

[DennyDoyle'sBoil]

 
I don't know the name of it, I think that's it.
 
Had lunch there a couple of weeks ago, when I had to push a bunch of paper at the New York State courthouse (next door to the fed courthouse where Berman is).  This cost $2:
 

 
Admit it -- you took a picture of your lunch thinking it might come up here at some point.
 
There's something really cool about paying $2 for lunch, loving it, and still knowing the proprietors made about $1.94 on it.
 
Rat shit futures are down.

 

[E5 Yaz]

It has only been 226 days since the AFCCG so I don't see the rush.

 
And still 145 until the next one

 

[cornwalls@6]

if anyone curious wants to read the full verbal garbage from the Texans owner its back a page o two.

Welp, so much for the Texans being my little side team to root for this year. Hard knocks and O'Brien(who I'm guessing would like to strangle McNair for this) had me on their bandwagon. Now I hope this brain dead old pants-shitter never experiences another win in this league. Motherfucker, I hate these people.

 

[Myt1]

I don't know what the delay to the end of the week means.
 
I do know that this will be a heavily scrutinized decision and his ruling will be the subject of an appeal.  And I suspect that he will never write another opinion that will get this amount of attention. 
 
That he is taking his time to get it right is no surprise to me.
 
I'm sure there are other reasons for the delay and that giving the parties one last chance to settle is one of them.

I don't know what this means.  Is the opinion ready and he's waiting to give them more time to settle?  Has he been writing more slowly to give them more time to settle?  Given that the parties have asked for the order by 9/4, when did he make the decision to possibly take until 9/4?

 

[TheoShmeo]

I had the impression that McNair and Kraft were close.  I recall them talking about each other in glowing terms in the past.
 
What an awakening this thing must be for Kraft.  "Bob McNair, dead!"

 

[TomTerrific]

Who else here is looking forward to a week of essentially zero productivity?

 

[TheoShmeo]

Myt1, my assumption is that Berman knows how he is going to rule, is using the time this week to fine tune the written product as much as possible and, at the same time, is not rushing the opinion out before Friday because he is giving the parties the maximum time to settle.  (Even if he views settlement at this point as remote, it never hurts to give people the chance to take it out of the Court's hands).
 
In other words, I see the polishing and settlement period reasons as different and not mutually exclusive.

 

[Kilgore A. Trout]

Who else here is looking forward to a week of essentially zero productivity?

You mean like every other week recently?

 

[dcmissle]

One thing this cannot easily be squared with is a slam dunk win for RG. Which is what Munson and others insisted it will be.

Judge Berman can be the bloodiest of bleeding hearts, but he has to know this is very, very unlikely to settle. So holding the NFL's feet to the fire because your heart tells you one thing and your brain the opposite, in the interest of justice is pretty much a waste of time at this point. The NFL ain't movin.'

 

[Bleedred]

Myt1, my assumption is that Berman knows how he is going to rule, is using the time this week to fine tune the written product as much as possible and, at the same time, is not rushing the opinion out before Friday because he is giving the parties the maximum time to settle.  (Even if he views settlement at this point as remote, it never hurts to give people the chance to take it out of the Court's hands).
 
In other words, I see the polishing and settlement period reasons as different and not mutually exclusive.

Boy, you really are super-fond of giving the parties a chance to settle, even when the parties scream that this isn't settling.  My purely rank speculation is that Judge Berman knows with iron-clad certainty that the prospects for settlement are dead and needs the extra day to finalize his opinion.  If Vegas put the odds at a decision coming down tomorrow, Thursday or Friday, I'd put my money on tomorrow.  

 

[amarshal2]

One thing this cannot easily be squared with is a slam dunk win for RG. Which is what Munson and others insisted it will be.

Judge Berman can be the bloodiest of bleeding hearts, but he has to know this is very, very unlikely to settle. So holding the NFL's feet to the fire because your heart tells you one thing and your brain the opposite, in the interest of justice is pretty much a waste of time at this point. The NFL ain't movin.'

What if they hadn't started until they learned there was no settlement yesterday? (Is that even realistic?). How long does it take to write the slam dunk finding for the NFL?

 

[dcmissle]

I could do it in 6 hours very well.

And I think the opinion has been in process for more than 6 days, probably substantially more.

 

[snowmanny]

I could do it in 6 hours very well.

And I think the opinion has been in process for more than 6 days, probably substantially more.

Well, most of us could write the finding for the NFLPA in less than that but it might include non-traditional terms such as "GOAT" and "haterz" and "appeal the taste of my anus."

 

[TheoShmeo]

Bleedred, no doubt that Berman appreciates -- probably as much as anyone -- how unlikely settlement is in this case.  Still, I think most lawyers have seen last minute settlements, and settlements just before a verdict would have been announced or judge's decision would have been issued.  And most of us have seen or heard of that happening between parties who were seemingly dead set against settling.
 
I take Berman's many efforts at settlement (his somewhat unusual initial order, the various settlement conferences, his comments about settlement, his involvement of Mara and order today) as indicative that he REALLY wants a settlement in this case.  In that light, even if he sees the possibility as super remote, giving the parties one last period, albeit one that will likely not be used, dovetails well with his settlement bent and his desire to get the written product right in the case doesn't settle.
 
And my bet is on Friday.
 
PS: I also agree that he's been writing the opinion for a while and that he could almost certainly release it today if he needed to.  That said, most lawyers and judges will expand the work into the time allotted and appreciate the chance to polish their written product and read and re-read it with fresh eyes even after it seems done.   

 

[Captaincoop]

Mine would just say Brady Winz and then list the full lyrics to Rat Shit Dumplings.

 

[dcmissle]

And starting yesterday is unfathomable. He has known for a long time that this had a short fuse. And for better or worse -- despite the fact that this case is probably far from the most important in his judicial career -- it will substantially define it and go in the first paragraph of his obituary. Oh yeah, and it is legally complicated on top of that.

The more likely fact is that he is in a double-digit draft of this opinion.

 

[Ed Hillel]

The more likely fact is that he is in a double-digit draft of this opinion.

 
And, let's be honest, writing an opinion in favor of Brady requires a lot more work than one against him. There's less to be concerned about where dicta is concerned, so I doubt he's reading over an objectively worthless lambasting of the NFL for the 20th time. He could be concerned about having a pro-NFL ruling overturned, but for the reason you stated above--an irreversible decision could be crafted fairly easily--it seems unlikely.
 
It means nothing to everyone else, but I'm quite confident this is going Brady's way. I truly believe the law is on his side, and certainly there's nothing sympathetic about Goodell or the owners that brings me fear as far as the human element is concerned.

 

[Myt1]

Anyone more plugged in know if Berman's got last year's clerks still around?

 

[chechusma]

Anyone more plugged in know if Berman's got last year's clerks still around?

As a non-lawyer, I'm trying to divine the implications of this question. Could you clarify?

I work in an academic medical center, so there is always a lot of kerfuffle around July-August, as July 1 is when all the new interns start, and all the trainees change roles.

Suffice to say - try not to get sick or injured in the summer.

 

[CaptainLaddie]

"Rat Shit Dumplings" also goes well with "Wall Street Shuffle" by 10cc.

 

[PedroKsBambino]

My unsubstantiated guess is that this is the result of the reports that Brady was willing to consider a suspension, and he's hoping that settlement talks are proceeding.

 
Given that the judge has vastly more detailed knowledge of the settlement positions of both parties than what is being publicly reported, I think it is highly unlikely his decision has anything to do with a public report of a settlement position.

 

[Myt1]

As a non-lawyer, I'm trying to divine the implications of this question. Could you clarify?

I work in an academic medical center, so there is always a lot of kerfuffle around July-August, as July 1 is when all the new interns start, and all the trainees change roles.

Suffice to say - try not to get sick or injured in the summer.

Similar.
 
Federal judges and state appellate judges often have law clerks, recent graduates who work for them for a year or two (some of the higher level ones will go from a federal district court judge like Berman to a Circuit Court of Appeals judge like Selya, whom we mentioned earlier).
 
They do a lot of the research and memos regarding the law.  They have varying degrees of responsibility for opinions.
 
I look back now and realize how utterly nothing I knew as a recent grad.  If Berman's got a clerk or two whom he's grown to trust over the past year or so, this is probably a smoother process.  If not, there's probably a substantial amount of feeling out going on still.

 

[Tim Salmon]

Anyone more plugged in know if Berman's got last year's clerks still around?

 
A "source with knowledge" told me he fired one of his law clerks fairly recently (but before this case was filed) and hired a new one.

 

[PedroKsBambino]

Similar.
 
Federal judges and state appellate judges often have law clerks, recent graduates who work for them for a year or two (some of the higher level ones will go from a federal district court judge like Berman to a Circuit Court of Appeals judge like Selya, whom we mentioned earlier).
 
They do a lot of the research and memos regarding the law.  They have varying degrees of responsibility for opinions.
 
I look back now and realize how utterly nothing I knew as a recent grad.  If Berman's got a clerk or two whom he's grown to trust over the past year or so, this is probably a smoother process.  If not, there's probably a substantial amount of feeling out going on still.

 
Let's hope his clerk isn't sitting on an offer from Akin, Covington, or Paul Weiss.
 
On LinkedIn one can find a lawyer who clerked for Judge Berman for 18 months, ending in June 2015 (and no, he did not go to any firm involved with the case!)  Do not know how many clerks a SDNY judge on senior status has; would guess two.  However, at least one clerk has a couple months of experience only.
 
For what it's worth, I hope we do not 'Reddit' the clerk situation beyond the easily-available stuff already here.

 

[Myt1]

Thank you both.  And thanks also to whoever it was that dinged me for calling Selya a "Justice" earlier (dokes maybe?).

 

[DennyDoyle'sBoil]

  If Berman's got a clerk or two whom he's grown to trust over the past year or so, this is probably a smoother process.  If not, there's probably a substantial amount of feeling out going on still.

 
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. 

 

[Marciano490]

 
Let's hope his clerk isn't sitting on an offer from Akin, Covington, or Paul Weiss.
 
On LinkedIn one can find a lawyer who clerked for Judge Berman for 18 months, ending in June 2015 (and no, he did not go to any firm involved with the case!)  Do not know how many clerks a SDNY judge on senior status has; would guess two.  However, at least one clerk has a couple months of experience only.
 
For what it's worth, I hope we do not 'Reddit' the clerk situation beyond the easily-available stuff already here.

 
Stop.  Really, these are 25 year old kids trying to do their jobs in a position with a huge premium on privacy and secrecy.  Don't pry or try to pry or put info out there to encourage others to pry and then throw up a disclaimer about not turning it into a Reddit situation.

 

[soxhop411]

Daniel Wallach ‏@WALLACHLEGAL  7s7 seconds agoFort Lauderdale, FL
Judge Berman order stating that he is "anticipating" the issuance of his decision by 9/4 not exactly a "guarantee." Interesting word choice

 

[PedroKsBambino]

 
Stop.  Really, these are 25 year old kids trying to do their jobs in a position with a huge premium on privacy and secrecy.  Don't pry or try to pry or put info out there to encourage others to pry and then throw up a disclaimer about not turning it into a Reddit situation.

 
I know the job well.   I also think it is more helpful to rule out some obvious 'conspiracy theory' stuff and suggest to those who read this thread and don't know anything about clerk roles that we should all stay away.   Anyone reading this thread can quickly google more than what I posted; hoping they will not is less realistic than clarifying why they should not.  
 
Your suggestion I think people should pry is ludicrous and the opposite of what I think we should do.

 

[dcmissle]

It's an old but good expression: tits on a bull.

But the heavy lifting in this case is work the judge would do anyway -- it's thinking and harmonizing precedents. The record is limited and defined. He has the benefit of briefing by excellent lawyers. There are not a lot of cases.

He said yesterday the decision likely would issue today or tomorrow. Let's not go overboard because it's not today.