Lessons Learned from Tom Brady's Case

"With all due respect, Mr. Brady's explanation of that made no sense whatsoever" (I get to some legal stuff, trust me; not till the end though).

The above comment was rendered by the majority of an appellate court panel in a decision issued today. In my second blog post this last week to make such an observation, that might seem all telling - were it taken in a vacuum.

For those of you who do not share my love of NFL football, here is a recap:

• Tom Brady was the figurehead of the New England Patriots when they beat the Indianapolis Colts to advance to Superbowl 49, where they ultimately beat the Seattle Seahawks to claim Brady's fourth Lombardi Trophy.
• After their win over the Colts, allegations surfaced that the Patriots had tampered with the air pressure in game balls - in defiance of the game's rules, and to gain an unfair advantage.  Some would say "cheating" if being direct.
• The league eventually found Mr. Brady culpable in the incident, after several rounds of appeals that decision has been reinstated (the prior round of litigation went Mr. Brady's way).

Full disclosure - I am a Broncos fan.  I have a vested interest in things not going the Patriots' way and I will go to my grave having never cheered for Tom Brady.

So what made "no sense" in the above excerpt?  Well, to summarize as dispassionately as I think I am able to, Tom Brady essentially stated that he had a cell phone with conclusive proof of his non-involvement in the "deflate-gate" scandal, but that he destroyed this very phone while cognizant of the fact that it could clear his good name.

Wait, is "good name" the right phrase... "good statistical record," that's what I meant!

Mr. Brady's explanation made no sense, I fully agree.  

If I were a judge, I think I would treat with some skepticism a litigant's statement to the effect of "I had exculpatory evidence, and certainly nothing condemning, but then I just destroyed it - while this proceeding was afoot, and for no particular reason. Nonetheless find in my favour."

So why did Mr. Brady win a round of litigation, and convince one of the three judges on this recent appeal to side with him?

This is my real-world introduction to a problem faced by all litigators, self included. The process ultimately comes down to people, making it very difficult to guarantee a particular result - even when we as counsel and/or parties see the matter as clear cut.  Most sports fans will be able to recount for you a moment where their team lost the 'big game' due to a blown call which video replay conclusively showed was incorrect.  So too, you will find that most litigators likely have a story or two about how the Court misapplied the law. Video replay might be equated to the Court of Appeal in this imperfect analogy.  Eventually, however, there is a final result and many if not most times, at least one of the parties disagrees with whatever that result might be.

I spent the last several months saying the result was not fair, and now I am in the 'fully vindicated' column once more.  If it does not end up in a higher court, I will remain in my happy place - on this result.

99% of cases settle.  Maybe if we were millionaires with millions of dollars in endorsement deals on the line it would be worth fighting to see who wins.  For those of us not in that camp risk avoidance is what makes the world go around.