How Would You Depose Tom Brady?
Unless you live under a rock or you do not have internet (in which case you wouldn’t be reading this article), you probably have seen at least one article about “DeflateGate”, the controversy surrounding the Patriots and the under-inflated footballs in the AFC championship game. The controversy included a press conference by Tom Brady about whether he knew or did not know about the under-inflated footballs. The response has been divided. Some, including Troy Aikman, think Brady lied about not knowing the balls were under-inflated. Others think the whole controversy is overblown.
In my opinion, whether the impact of the ball pressurization is a big deal or not, the NFL should figure out if the Patriots intentionally reduced the pressure below the permitted limits. As you learn in law school, an intentional act should be punished more harshly than an accidental act. So how to do this? In my opinion we would be better off having Brady, Belichick, and everyone else involved sequestered and have an experienced cross-examiner have at them. It’s too late now, but it is a fun academic exercise. A full analysis of the attempts by the press to question Brady is too long for a blog post, but I will discuss a few of the most outrageous questions here. It’s good practice for when you need to depose or cross-examine your next witness. Here are snippets of the transcript. The entire transcript can be found here, courtesy of the NY Daily News.
The very first question was, “When and how did you supposedly alter the balls?” This question assumes facts and obviously was intended to suggest Brady was involved in the cheating. Lawyer sometimes try these tricks and they can even be useful, but this attempt was so transparent that it’s pretty laughable. Here’s another one, “Are you comfortable that nobody did anything?” Even in the context of the entire transcript this question would not be a good one for a deposition transcript. It’s too vague.
I don’t mean to be too critical. Press conferences are different animals than legal cross-examinations. And some of the questions were certainly much better than others. For example, one reporter asked, “Do you know the difference between an under-inflated ball and an over-inflated ball? Did you notice a difference in the balls used in the first half and second half?” These are good questions, but they would have been better if they had been asked separately. Of course in a press conference you have to yell out so asking double questions is more understandable in this context.
A better approach, which may have been more boring for a press conference but certainly more productive, would have been to break down Brady’s process step-by-step, both for other games and this one. When covering the process, obtain the names of each person who handled the footballs and when they did so. Then discuss how different the ball pressure would need to be in order for him to notice a difference. I would even suggest giving him 20 balls with varying pressure and have him hold them, and maybe even throw them.
For football fans it will be interesting to see how this plays out. And for those of you reading this post I would love to have you post a 3-5 question series in the comments to see how you would have questioned Mr. Brady.