Blog of law articles

Ever think back and wonder how some of your law professors might do in the courtroom?

I don't mean the former practitioners who are adjuncts or who have recently switched careers, but the old-timers, the eccentrics deeply steeped in academia who believe at any one time that they are the smartest guy in the room, and who wear that self-knowledge along with their eccentricities like a crown.

Well, for famed Harvard Law Professor Charles Nesson, things went as you might expect:

The problems for the case, however, started well before the first day of trial; Professor Nesson’s court filings and tactics were decidedly informal and offbeat. As part of his almost obsessive desire for transparency and documentation, he posted a recorded telephone conference call with the judge and industry lawyers on his blog, and even posted e-mail messages from friends discussing case strategy.

In one message, Lawrence Lessig, an internationally recognized expert on copyright at Harvard Law School, expressed serious reservations about the suit and counseled against Professor Nesson’s plan to argue that Mr. Tenenbaum had made “fair use” of the music. Fair use is a doctrine more commonly cited when small portions of a published work are quoted elsewhere. It would be wrong, Professor Lessig wrote, to “pretend” that “fair use excuses what he did.”

“It doesn’t,” he added.

Even before opening statements, Professor Lessig was proved right: Judge Gertner prohibited the fair-use defense.

“To say she dealt us a stiff blow actually puts it quite lightly,” Professor Nesson said.

During his opening statement, Professor Nesson held a brick of foam wrapped in plastic and compared it to the compact discs that the industry sold before the online revolution. He cut the wrapper and the foam broke into hundreds of pieces, which he compared to digital bits that spread around the world.

Ben Sheffner, a copyright lawyer who has worked for the entertainment industry and covered the trial for the Web site Ars Technica, said Professor Nesson’s breezy, almost insouciant manner was more suited to the classroom than the courtroom, where “there are hundreds of rules you have to follow, and if you don’t follow them, there is a judge who literally lays down the law.”

The crucial blow came on the stand, when Professor Nesson encouraged Mr. Tenenbaum to admit freely that he had downloaded and shared songs, after having denied it in depositions, “because it’s the truth,” Professor Nesson said, stripping the case to the core issue of the law’s unfairness. Judge Gertner essentially declared the case over, directing a verdict against Mr. Tenenbaum and leaving the jury to decide only the penalty.

The $675,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.

Oy.

I guess the Professor was not trying this case to the jury or to the judge, but to the appellate court? The Supreme Court?

How else to explain eliciting admissions from your client on direct that kill your case on liability and preclude consideration by the jury?

Let's hope things go better up on appeal.