During 18 years of practicing law, clients routinely would ask me, “Will we win the case?”
And I routinely would say, “I don’t know.”
And if they’d press for more details or express any uncertainty about my uncertainty, I’d say this, “Anyone who tells you that they know how a case will turn out is lying or uninformed.” (I typically used a much stronger word than “uninformed.”)
Regarding the Tom Brady suspension, ESPN legal analyst Lester Munson has been lying or uninformed for more than three months now.
On May 17, five days after the NFL imposed a four-game banishment on Brady, Munson authored an item that declares there’s “not much hope” for Brady in his appeal. With a question-and-answer format to the column, Munson asked himself whether Brady can win a reduction in the suspension or eliminate it entirely.
“No,” Munson wrote. “The evidence gathered by attorney Ted Wells for the NFL’s investigation is clear and convincing. The text messages between Brady and two Patriots staffers, the disappearance of the Patriots’ footballs in the moments before kickoff, the history of similar incidents involving Brady and Brady’s stonewalling of the NFL investigators lead to only one conclusion: Brady was clearly involved in an effort to underinflate the footballs to give him a competitive edge.”
When the case moved from the internal appeal phase to the external litigation phase, Munson doubled down.
“Will Brady succeed in court and stop the NFL from suspending him for four games?” Munson asked himself.
“No, Brady will not succeed,” Munson told himself. “Although he enjoys top-of-the-line legal representation and his lawyers will file a brilliantly written lawsuit, his effort to stop the suspension is doomed. There are two reasons why: First, federal judges are reluctant to reconsider the rulings of arbitrators; second, [Commissioner Roger] Goodell produced a decision on Brady that is brilliantly reasoned, meticulously detailed, and well-written. Goodell’s recitation of the evidence of the tampering with game balls is powerful, and his description of Brady’s attempt at a cover-up is persuasive.”
Of course, Munson’s second column came before the 456-page transcript of the appeal hearing was released, a transcript which reveals various flaws in the ruling, such as the failure to allow the NFLPA to call NFL general counsel Jeff Pash as a witness, the refusal to compel “independent” investigator Ted Wells to make his files available to the union, the mischaracterization of Tom Brady’s testimony regarding interactions with John Jastremski, the NFL’s lack of knowledge regarding the natural deflation of footballs in cold weather, and the failure of the league to give Brady the policy under which he was suspended.
But none of that has changed Munson’s opinion. Two days after Judge Richard M. Berman aggressively questioned NFL lawyer Dan Nash regarding the flaws in the NFL’s case, Munson dismisses the interrogation and declares that “the NFL will win in the end.”
Munson essentially believes that Judge Berman is doing whatever he can to force a settlement so that he won’t have to issue a ruling in the case, because Judge Berman fears being reversed by the U.S. Court of Appeals for the Second Circuit. But if the case is as clear as Munson seems to know it is, why should Judge Berman worry about anything? He should bang the gavel and move on, as confident as Munson is that the Second Circuit would quickly uphold the ruling.
And if Judge Berman somehow does what Munson would view as unthinkable and overturns the suspension, Munson already knows that three randomly-assigned judges from a total available panel of 22 would unanimously agree that Judge Berman is clearly wrong. To support his certainty in this regard, Munson points to the Maurice Clarett legal attack on the draft from 11 years ago — which initially went against the NFL but went the other way on appeal — as proof.
Of course, the Clarett case involved entirely different facts, circumstances, and legal principles. But since the Second Circuit already has reversed a Manhattan federal court once before in a case involving the NFL, it’ll happen every time, right?
It’s unclear why Munson has been so strident in his views on the Brady case. We’ll assume that he genuinely believes he already knows the outcome, and that he’s not lying to the audience he serves. However, if we rule out that Munson is lying, it means that he’s uninformed.
I don’t know Lester Munson personally, and I have no reason to question his intelligence or lack thereof. Except, that is, for the fact that he was once suspended by the Illinois Attorney Registration and Disciplinary Commission in a case that included a finding that he failed to maintain separate accounts for client funds from settlements and for his business expenses.
Which, as any lawyer can tell you, is incredibly uninformed.
So if only one prior case from more than a decade ago is all that’s needed to support the notion that the NFL would win on appeal in the event Judge Berman goes rogue and rules against the NFL now, only one prior instance of extreme uninformedness is all that’s needed to concluded that, indeed, a legal analyst who believes with certainty that he knows how a legal case will end is seriously uninformed.
Ultimately, Munson could get lucky; the NFL could win. But Munson would be no more accurate than if he’d called the toss of a coin correctly or accurately picked red or black on a roulette wheel. He’s making a guess and acting as if he knows. If he truly think he knows, he’s definitely uninformed.