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How Lawyers Use Inconclusive and Unrelated Facts to Advance their Client's Interests: or, How to Read Ted Wells' Deflategate Report

Smiling all the way to the bank.

A few preliminary things:

I'm not going to argue the facts of the Wells report; that's not the point, and it's irrelevant now, anyway. I hope to provide some context as to why the report is couched in such careful language, and what it means for Brady and the Patriots.

Here goes: once upon a time, some powerful lawyers, academics and supreme court justices decided that the law should operate more scientifically, using concepts from the scientific method, to make the law clearer, more predictable and systematic. Courts developed standards of proof, standards of evidence, balancing tests, burden shifting mechanisms, strict scrutiny, intermediate scrutiny, the rational basis test, etc., etc., etc. The idea was that we could define a set of standards that told us how much weight of the evidence one side needed to present in order to win a particular argument. (Criminal cases require proof "beyond a reasonable doubt"; civil cases are decided based on the "preponderance of the evidence," etc.) Then, we'd simply weigh the evidence using the defined standards and "Voila!," the right decision becomes clear. Some of you may remember Chief Justice John Roberts comparing judicial decision making to "calling balls and strikes" during his 2005 confirmation hearings.

This is basically how the law tries to operate, and therefore it's how lawyers are trained to think: how can I stack up the evidence in my client's favor to get them the result they want, knowing the judge is a human being who is trying his best to stack up a bunch of pieces of information to pick the winning side. Good lawyers can weave seemingly unrelated, disparate facts into a compelling tale by connecting those pieces of information with reasonable inferences, making the sum of the tale greater than its individual facts. The key is the reasonableness of the inferences between the many disparate facts.

The law leans very heavily on the concept of reasonableness, and so long as a finder of fact (in this case, Ted Wells) acts "reasonably," its decisions will withstand appeal. Only when decisions are obviously erroneous, arbitrary or capricious will they be overturned; finders of fact typically receive substantial deference. As a result, overturning the decision of a fact finder is pretty rare in the law. Professional fact finders like Ted Wells know they only need to make arguably reasonable conclusions for their decisions to withstand scrutiny in the context of a union grievance, arbitration or lawsuit.

The NFL hired Wells to be an impartial investigator, but don't mistake Wells' mission: the NFL is his client and his job is to do what is in his client's best intersets. Therefore, Wells wrote a report that enables the NFL to do pretty much whatever it wants. By using an accepted standard of evidence ("more likely than not"), Wells did not risk overstating any conclusions; challenging findings of fact based on this standard is exceptionally difficult. Also, because Brady got caught making some inconsistent statements, they could pin him as a target: a suspect with credibility issues. Moreover, Wells' conclusion that Brady was "at least generally aware" of the alleged illegal tampering is exceptionally carefully worded; the number of billable hours that went into crafting exactly that phrase would probably make you puke. From a lawyer's perspective, it's brilliant: you have scant facts that can really be interpreted in a variety of ways, so you have to be very careful that your conclusion reflects this reality while simultaneously helping your client achieve its goals.

By saying Brady was "at least generally aware," it lets the NFL interpret any level of involvement by Brady, ranging from "He didn't really know enough to be personally culpable" to "He personally orchestrated the deflation of every single gameball." By virtue of what the NFL interprets as Brady's level of involvement, the NFL can sanction upward, similar to what it did against Peyton and the Saints. Likewise, the NFL could conclude that this was a series of isolated incidents by a largely rogue low-level employee, or they could conclude that it reflects a culture of subterfuge and dishonesty. One little phrase, so neatly worded, is why the NFL hired Ted Wells: recognizing the lack of truly probative facts, he carefully stacked up the facts and made very careful inferences to arrive at a simultaneously limited and open-ended conclusion that empowers his client. I'm a little sick, and a little impressed.

So the report will most likely stand up if challenged, and whatever action the NFL takes in reliance on it will similarly stand up. The point of the report was never to discover the truth; it was to give the NFL legal leverage. This is standard operating procedure for any sophisticated corporation.

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