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Judge Berman tells NFL, NFLPA to keep talking about a potential settlement


On Wednesday, Judge Richard M. Berman will try to twist arms to get the lawsuit arising from Tom Brady’s suspension resolved. On Tuesday, he essentially told both sides to assume the arm-twisting position.

Via multiple reports, Judge Berman has issued a brief order “requesting” (i.e., demanding) that the parties engage in further settlement discussions on Tuesday. Judge Berman also said that he will “meet briefly” with the parties in the “robing room” before Wednesday’s hearing that will entail oral arguments on behalf of both parties.

Here’s what it means.

Judge Berman wants the two sides to be as close to their bottom-line positions as possible on Wednesday morning, so that he won’t have to waste time getting them to their impasse point. Then, once he knows what each side is offering, he’ll conduct a hearing on the merits of the case.

Then, through the questions he asks and comments he makes from the bench, the parties will know which side needs to bend. If that doesn’t get the case settled, he’ll do some more bending next Wednesday, during the second settlement conference.

Although a judge can’t force two sides to settle, a judge can make it clear to one side that the choices are to take what you can get or take nothing.

A long time ago, when I was only practicing law and hadn’t practiced law for very long, a judge asked in a pretrial conference if my client would keep a settlement offer on the table for 24 hours, no matter how he ruled on a pending issue that could have delivered an outright victory to my client. I said, “But, Your Honor, if you rule in my favor, my client won’t want to settle at that point.”

The judge then shot me a glance that carried this message: Hey dumbass, that’s my message to the other guy that he’d better take the offer while he can.

So I agreed, and the other lawyer quickly took the offer.

While it probably won’t go down quite the same way before Judge Berman (although there may be a few “hey dumbass” looks), that’s an example of how a judge can force a settlement without literally forcing a settlement.