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Mar 11, 2009 
By 
I recognized that law school grades were completely random back about 17 years ago when I got an A+ in Tax and a B- in Evidence. Prior to that, I had begun to suspect that the whole thing was a scam. That impression was substantially promoted by the time that somewhat famous (or infamous) evidence professor Charlie Nesson threw a piece of chalk at me.
I was asking for it, really. Nesson asked a rather mundane, facially rules-related question. I offered a mundane rules-related answer. He got a terribly disappointed, pensive look on his face, as he was prone to do. “That wasn’t a very profound answer,” he said. “It wasn’t a particularly profound question,” I replied. The class laughed, and he got an angry look on his face and chucked the chalk at me.
The exchange revealed the conflict between my attitude and Nesson’s — and, for that matter, Harvard’s. I wanted to learn how most effectively and skillfully to use the rules of evidence to serve clients. Nesson, and Harvard, wanted to teach me how to feel about the rules of evidence, and how the illusion of a rule-bound approach to evidence illuminated various metaphysical, deontological, epistemological, and social divisions in “reality.” They hoped that this would prepare me to teach other people how to feel about evidence, who could then teach other people, and so on, in an endless feedback loop of ivy-festooned wankery. Nesson seemed to share the view recently expressed elsehwere that law school is not meant to train lawyers, but to “appreciate the depth of the legal discourse and explore its rich complexities.” Thus when Charlie asked his question, he was looking for a deep philosophical answer, not a rule bound one. Hence I got the chalk.
I’ve always thought that this approach to legal education was a sort of mock-intellectual anti-intellectualism, an affected disdain for the actual rules and techniques of lawyering in favor of discussions of how those rules should make us feel. No doubt that attitude is why I thought my clinical experiences in law school were the most valuable part of my education, and why I was so happy to leave.
Why should we care about actual rules, and the means of following, using, and even manipulating them? Because as Charlie Nesson should now be able to tell you, mastery of and respect for the seemingly picayune rules that make up the rule of law are a necessary prerequisite to achieving your big-picture, hi-falutin’ goals.
See, Charlie accepted an appointment to represent a defendant in one of the RIAA’s abysmally thuggish file-sharing cases. (n.b., as Charlie would say, you can follow the course of such cases at the entirely excellent Recording Industry v. The People blog.) Nesson, who is interested in internet issues and has led efforts to explore the application of established law to the internet, no doubt thought he could make some headway against the RIAA in the case. So he tried to compel the deposition of Matthew Oppenheim, a lawyer who has helped devise and lead the RIAA’s litigation strategy.
But Charlie Nesson ran into a black-robed, Article-III-empowered buzz saw in the form of federal judge Nancy Gertner. Gertner is clearly not a friend of the RIAA or an enemy of its detractors — it was her concern about the unfairly one-sided nature of the case that led to Nesson’s appointment. But she is a friend of the Federal Rules of Civil Procedure and the local rules. Charlie Nesson, it would seem, is not, perhaps because they are rule-bound and mundane and have not slipped the surly bonds of law into the heavenly realm of theory. So Judge Gertner just issued an order utterly slamming Nesson. In the order — which you can find here, courtesy of Ray Beckerman — Gertner used unusually stern language denying Nesson’s motion to compel Oppenheim’s deposition, pointing out that Nesson failed to issue the correct form of non-party subpoena, failed to comply with his initial disclosure requirements, failed to comply with local rules, and failed to fulfill meet-and-confer obligations. She saves the best for last:
While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation — a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise. The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs’ time and money or scarce judicial resources by filing frivolous motions in the future.
BAM!, as they don’t say at Harvard.
Nesson is one of the most thoughtful inquisitors into the policy issues behind areas of law including, but not limited to, the rules of evidence. But he ought to recall that effective client representation is an entirely different animal than profound legal scholarship. One might even hope that Charlie Nesson, after this lesson, will show a bit less disdain for the rules he has ostensibly chosen to teach.
But if you suggest that to him, watch out for the chalk.
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32 Comments 
asshats, Lawyers Behaving Badly, RIAA
Most Massachusetts attorneys extend schedules upon request as long as it is not unduly burdensome to the client (you never know when you’ll need one yourself, and the bar is small – reputations go far).
