In courtroom proceedings, lawyers routinely make mistakes when arguing zealously for a client’s position. Whether it’s because of unfamiliarity with the facts (especially when the lawyer presenting an appeal didn’t handle the underlying case), poor recall in the heat of the moment, excessively exuberant efforts to win, or a deliberate attempt to slip one through the five hole of a black robe, lawyers screw up sometimes.
The question becomes what they do about it after realizing that a mistake was made.
As several members of the media have pointed out, and as Sally Jenkins of the Washington Post has crystallized appropriately, NFL appellate counsel Paul Clement made multiple mistakes when explaining the facts of the Tom Brady case to the U.S. Court of Appeals for the Second Circuit. The mistakes, as far as the public knows, have not been corrected.
The biggest blunder at the hearing came when Clement suggested that Tom Brady explained his sudden uptick in communications with assistant equipment manager John Jastremski on the day after the 2014 AFC title game by saying that Brady merely wanted to talk to Jastremski about preparations of the game balls for Super Bowl XLIX, and nothing more.
“To say all of that was being done to prepare the Super Bowl balls, I think the Commissioner found that to simply not be a credible explanation to the conduct,” Clement told the court, via Jenkins.
But that’s not what happened. As noted back in August, Brady testified at the hearing before Roger Goodell on multiple occasions that Brady spoke to Jastremski because of the tampering allegations, too.
Clement flat-out got it wrong, in the same way Goodell did in his ruling upholding Brady’s suspension. Clement arguably now has an obligation to correct the mistake, by sending a letter to the appeals court (with a copy to Brady’s counsel) admitting the mistake and correcting it.
As explained by Jenkins, Clement made other factual misstatements in the written documents submitted to the appeals court. He claimed that Brady’s lawyers attended “many of the interviews” during the NFL’s investigation. In reality, Brady’s lawyers witnessed only Brady’s interview. Also, Clement said that Jim McNally repeatedly called himself “the deflator” in text messages sent “throughout” the 2014 NFL season. McNally used the term only once, however, in the months preceding the 2014 football season.
The NFL would say that it’s up to Brady’s lawyers to point out any errors in the written submissions or misstatements made in court. That’s true in any contested case, because in virtually every contested case mistakes like this are made. However, this specific case currently has not only a trio of judges but a jury of media members who are willing and able to hold the NFL’s feet to the fire, every step of the way. If the league’s lawyers aren’t buttoned up in their written or spoken presentations, they need to worry not only about Jeffrey Kessler but also about anyone else who may point out the flaws in a way that lands on the radar screen of the judges or their clerks.