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The criticism of Judge Berman begins

Richard M. Berman


Privately, the NFL and its lawyers undoubtedly are blaming the outcome of the Tom Brady litigation not on their own mistakes but on the proclivities of a liberal, activist judge, appointed to the federal bench by a Democratic president. But that won’t resonate well with the public; even though Judge Berman was randomly assigned the case from a much broader pool of potential jurists, the NFL chose to file suit in the court that randomly assigned the case to Judge Berman.

Besides, why complain about the impact of judicial philosophies on the outcome of civil cases when there’s a basis or two for suggesting that the judge may be corrupt?

Via the New York Post, Judge Berman “mingled” with Patriots owner Robert Kraft at a weekend party at the Hamptons. Which is causing some to suggest that last week’s ruling was some sort of an inside job, engineered behind the scenes by Kraft.

“It was a chance encounter at a social event with hundreds of guests,” a Patriots representative told the Post. “There was a brief introduction and an exchange of pleasantries that lasted no more than a couple of minutes.”

Also present at the party, according to the Post, was Giants co-owner Jonathan Tisch. It’s unclear whether Tisch and Berman mingled or exchanged pleasantries or otherwise engaged in any behavior that someone could have used as convoluted evidence of corruption if the NFL had managed to win last week.

Mingling and social encountering with parties having direct or indirect involvement in litigation is irrelevant to the question of whether bias exists. Judges aren’t locked in dungeons. They have actual, mostly normal lives.

Sometimes, those lives lead to questions about potential conflicts of interest. As conflicts of interest go, Kraft and Judge Berman bumping into each other at a party is as close to meaningless as possible. To create a true cloud over Judge Berman’s objectivity, something far more tangible is needed.

It’s possible that the league has tried to float something more tangible. But not all that much more tangible.

Last week, Bart Hubbuch of the Post noted as an "[i]nteresting factual nugget” on Twitter that “Richard Berman’s former law-firm colleague Stephen Case is on Columbia’s BOT Emeriti with ... Robert Kraft.”

So I did some research. (For a change.) And it turns out that, indeed, Case and Kraft both belong to the 38-member Board of Trustees Emeriti at Columbia. (That group is separate from the 24-member Board of Trustees that governs the school.)

Case currently serves as Managing Director and General Counsel for Emerald Development Managers. He previously spent more than 35 years at the law firm Davis Polk LLP. And Judge Berman did indeed work for that firm.

For four years. From 1970. To 1974.

In the 41 years since then, there has been no professional connection between Judge Berman and Case. During Judge Berman’s 17 years as a federal judge, he likely presided over multiple cases involving the firm with which he spent the first four years of his legal practice. And it’s incredibly unlikely that anyone has ever raised a single question about the potential for bias regarding Judge Berman and his former firm.

Still, only one day after Judge Berman ruled against the NFL and in favor of Kraft’s most important on-field employee, a report emerged that subtly questioned Judge Berman’s objectivity over a professional relationship that ended more than four decades ago. At the risk of violating the notion that reporters shouldn’t wonder aloud about other reporter’s sources, this feels like something the NFL’s lawyers knew about throughout the pending litigation, something they never raised in court (because Judge Berman would have laughed at them if they had), and something they planned to leak to a sympathetic ear in the media if/when Judge Berman ruled against them.

Ultimately, it’s an attack on the credibility of a federal judge. Possibly put in motion by a league office that became indignant when CNN’s Rachel Nichols questioned whether former FBI director Robert Mueller had a conflict of interest when investigating the Ray Rice situation given other connections between his law firm and the NFL.

Another federal judge probably should get ready for some of the same. The Honorable José A. Cabranes is one of the 22 judges sitting on the U.S. Court of Appeals for the Second Circuit. And Judge Cabranes also serves on the Columbia Board of Trustees Emeriti with Robert Kraft.

Moving forward, let’s see whether the league files a motion to disqualify Judge Cabranes before the case is submitted, or whether someone leaks to the media the connection after Cabranes gives the NFL a ruling it doesn’t like.