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On The Merits

Federal Court Takes the Air Out of Tom Brady’s Season

The reaction of some fanatical National Football League fans to yesterday’s decision from the 2nd Circuit Court of Appeals in the Tom Brady case was, in many ways, quite predictable. The Court upheld NFL Commissioner Roger Goodell’s suspension of Brady for his alleged role in the “Deflategate” scandal.

For opponents of Brady’s New England Patriots, it confirmed their view that the team’s quarterback is a liar and a cheater. Fans of Brady and the Patriots, by contrast, likely see it as an excuse to harshly punish one of the NFL’s all-time greats on the flimsiest of evidence.

To some extent, this a classic example of the psychological tendency to see events through the filter of what you want to see. After all, another great quarterback with considerable off-the-field baggage, Brett Favre, was a hero in Green Bay until the day the former Packer suited up for their hated rival, the Minnesota Vikings.

But the legal matter really had more to do with strictly legal issues than rivalries or football. As the court correctly observed: 

Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second-guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act. [emphasis added]

Not exactly the stuff of NFL Films, but right on point. Goodell’s authority as arbitrator arose from a contract between the NFL and its players that outlines their legal relationship. The court correctly stated that, under the LMRA, it must:

. . . simply ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.”

The court then noted that, under the contract, the Commissioner’s authority is “especially broad” and that both sides had agreed to that authority. Thus, the fact that the evidence may have been flimsy and not enough to make a finding under a statutory standard, this was a standard set forth by their parties in their contract. And generally, as in this case, the court will honor what the parties intended unless there are good public policy reasons not to do so.

The issue was not really what the court thought Brady did, but whether the arbitrator’s conclusion was legally plausible under that broad standard. And a majority thought it was, though a dissenting judge and the lower trial court reached a different conclusion. And that happens often, but the judges in the majority rule the day.

So if you’re a fan of Brady and you think he was treated unfairly, perhaps he was. But the message from this court, anyway, is maybe the players need to negotiate a better contract; one where the Commissioner is not the judge, jury, and executioner.


Posted: 4/26/2016 3:07:07 PM by On the Merits Editor | with 0 comments

Houston Bar Association’s LegalLine Program Provides Volunteer Attorneys for Advice on Flood-related Issues

The flooding in Houston has been awful, but – as it always does – the local legal community is stepping up to help.  Tonight from 5:00 – 9:00 p.m. the Houston Bar Association will make volunteer attorneys available by telephone through its LegalLine Program.  LegalLine provides volunteer attorneys to provide free legal advice on the first and third Wednesday of every month.  The phone number is (713) 759-1133.  
Kudos to the Houston Bar for reaching out to Houston’s many flood victims.  


Posted: 4/20/2016 12:55:06 PM by On the Merits Editor | with 0 comments

Monkey Business

We all have heard the one about the monkey who took a selfie, right? 

The long-running legal dispute is over whether a female macaque who snapped a photo of herself owns the rights to that photo.

The answer is no, according to U.S. District Judge William Orrick in San Francisco. Animals do not have legal standing to bring lawsuits unless expressly provided by statute. Further, he wrote, the Copyright Office states that “to qualify as a work of ‘authorship,’ a work must be created by a human being.” 

People for the Ethical Treatment of Animals (PETA) argues for legal rights for animals –“living breathing creatures who deserve fundamental rights of their own.” PETA had sued on behalf of the macaque, named Naruto, claiming the monkey deserved copyright control of its picture. 

Photographer David John Slater was taking photos of macaques in Indonesia when he set up a camera the primates could use themselves. That’s when Naruto pressed the button, snapping the selfie. Later on, some media sites posted the photo, contending there was no copyright violation because Slater hadn’t taken the picture. That’s when PETA stepped in, saying the monkey deserved copyright protection.

Judge Orrick dismissed the lawsuit for the reasons stated above. Now, certain anti-lawyer organizations have made a lot of noise by collecting examples of “frivolous” lawsuits, including this one. But what they don’t tell you is that: (1) anyone has the right to file any lawsuit they want, and (2) once filed, virtually all truly meritless suits are eventually dismissed, as was this one.  

Likewise, a lawsuit filed by PETA against SeaWorld related to its treatment of its killer whales was dismissed within months of its filing. But the legal questions surrounding mistreatment of animals isn’t going to go away.  Where the lawsuit may have failed, the court of public opinion also weighed in, particularly in the critically-acclaimed documentary “Blackfish.” The negative publicity led SeaWorld to recently announce they would no longer breed the whales in captivity.  

Indeed, a growing number of Americans believe that animals should have at least some rights.  A recent Gallup poll noted that 62 percent of Americans support some protection for animals, and one-third believe they should have the same rights as people.    

Recognizing this, over 160 law schools in the U.S. and Canada now offer courses in animal rights, according to the Animal Legal Defense Fund. Because if you are going to figure out what rights animals have under the law, you’re going to need lawyers and judges to do it.  


Posted: 4/8/2016 8:15:04 AM by On the Merits Editor | with 0 comments

An Anniversary to Celebrate: Texas Appleseed

One of the great things that lawyers and law firms do – too often overlooked by those who criticize them – is donate large amounts of pro bono time to perform legal work for disadvantaged Americans. 

But there are also entire organizations dedicated to pro bono work. One such organization is Texas Appleseed, which is celebrating its 20th anniversary this year. Over its relatively brief history, the group has played a significant role in achieving these major reforms:

  • Abolishment of a school truancy law in 2015 so that skipping school is no longer a crime that sometimes even put kids in handcuffs or behind bars.
  • Adoption of a law in 2013 that stopped schools from issuing misdemeanor tickets to children for misbehavior, a crime that sometimes led to $500 fines for those who often couldn’t afford it.
  • The Michael Morton Act in 2013, a revamp of criminal discovery procedures that is named for a man who was wrongfully convicted.
  • The Fair Defense Act in 2001, which improved the ability of indigent criminal defendants to retain lawyers. 

Texas Appleseed is an offshoot of the Appleseed Foundation, created by the Harvard Law School class of 1958 to organize the private bar to work for the public good.

Founding board member Mike Lowenberg, general counsel of Gardere Wynne Sewell in Dallas, told Texas Lawyer, “We've had an impact that I think has gone beyond a lot of other organizations seen as liberal or conservative, or plaintiffs’ lawyers or defense lawyers."

Texas Appleseed says its pro bono contributions were valued at $1.5 million in 2014 and $2 million in 2015. 

Just another example of how lawyers are making the world a better place. Happy Anniversary, Texas Appleseed.


Posted: 4/6/2016 8:07:39 AM by On the Merits Editor | with 0 comments

So If You Feel Like Giving Me a Lifetime of Devotion, I’ll Let You Do This Motion

As trials become ever more rare, a California federal magistrate hearing a trade secrets case recently voiced a concern about the future of lawyering: “Who will try the technology cases of the future?”

In an order issued in GSI Technology v. United Memories Inc., U.S. Magistrate Judge Paul Singh Grewal wrote that, over the years, he's seen armies of veteran trial lawyers show up to argue every little motion. And that worried him. 

Who will try such cases in the future, he asked, “when so few opportunities to develop courtroom skills appear? It is difficult to imagine handing entire intellectual property trials to a generation that never had the chance to develop those skills in more limited settings.”

That’s when the judge asked the lawyers on both sides to let the associates make oral arguments on at least two of the six motions set to be heard. If the parties weren’t willing to do that, he said, he would decide all of the motions without hearing arguments.

Well, guess what? Judge Grewal’s noble entreaty failed. Both firms waived oral arguments rather than allow the associates to have their day in court.

The disappointed Judge Grewal wrote: “I would be remiss if I did not observe the irony of another missed opportunity to invest in our profession’s future when two of the motions originally noticed of hearing seek massive fees and costs.” 

GSI’s legal fees and costs totaled $6.8 million, and United Memories calculated its own at $6.7 million. 

Said the judge: “That a few more dollars could not be spent is disappointing to me. My disappointment, however, is unlikely to compare to the disappointment of the associates, who were deprived yet again of an opportunity to argue in court.” 

The judge is right, and it’s unfortunate that his invitation was not accepted. But it shows that there are those lawyers and judges who truly care about the future of the profession and the quality of lawyers who will serve the next generation of clients.   

Judge Grewal’s full written response is here.

Posted: 4/4/2016 11:38:16 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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