Look, trial lawyering is not rocket science or brain surgery. You can be a very good trial lawyer without being a genius. In general, the three biggest factors playing into success at trial are (1) which lawyer is better prepared, (2) which lawyer has the better facts, and (3) which lawyer has the more sympathetic client. A lawyer can only control the first factor. A well-prepared lawyer of average intelligence will beat a poorly-prepared brilliant lawyer, all other things being equal. Trials get interesting when a lawyer who is better prepared goes up against a lawyer with the better facts.

But trial lawyering is surrounded by mythology. That mythology — which centers upon lawyers like Gerry Spence — suggests that the lawyer who is the better storyteller, or who has a better grasp of the "big picture," will be victorious. Lawyers like Spence promote that mythology, because it's good for their ego and their bottom line. Certainly being a good storyteller is a valuable skill; so is picking a big theme for your case. But the lawyers who rack up successes as big-picture storytellers are also very well-prepared on the details. You won't catch Gerry Spence blundering around trying to figure out how to get an exhibit into evidence, and you won't surprise him with something from the discovery in the case.

Last week Harvard professor Charles Nesson illustrated the risks of the mythology of trial lawyering. I've written about Nesson before — about the time he chucked a piece of chalk at me, about his affected disdain for the mundane nuts and bolts of lawyering, and about his travails in his pro bono defense of a young defendant in an RIAA lawsuit. Nesson defended 25-year-old Joel Tenenbaum in a RIAA lawsuit accusing him of illegally downloading numerous songs. What happens when someone who is contemptuous of the dirty mechanics of lawyering shows up in court to try a case? Well . . . .

Tenenbaum’s lead counsel, Harvard Law School professor Charles Nesson, has sought to portray his client as one of millions of decent young people who grew up thinking downloading music free of charge was fine. But Nesson has struggled throughout the four-day trial to make his points, drawing countless objections from the plaintiffs and warnings from [Judge] Gertner to ask simple questions, stay within appropriate boundaries, and avoid making arguments.

As I noted before, this is not the first time Nesson has run afoul of Judge Gertner's expectation that a lawyer practicing before her will know and follow actual legal rules.

The predictable result? Nesson — and his client — lost. That's not surprising, given that Tenenbaum admitted to the downloading on the stand, and was forced to admit that he had lied in prior statements in which he sought to blame the downloading on others. The jury awarded the RIAA $675,000 rather than the up to $4.5 million they could have awarded. That's a partial moral victory, I suppose, though it still spells bankruptcy for Tenenbaum just as surely as $4.5 million would have. Nesson, it seems, was going for some sort of jury nullification. But part of being prepared when you are trading on your skills as a big-picture storyteller is coming up with a consistent, coherent theme. Nesson didn't have that, even by the end of the case:

Throughout closing arguments on Friday, Nesson, tried to convince the jury to keep damages low. He argued that Tenenbaum was “addicted” to downloading music, and that the college student was only taking advantage of available technology. He was not, Nesson said, attempting to deprive the record companies of profits. Declining profits at record companies, Nesson said, was caused by their inability to keep up with technological change.

“Progress happens, it’s not Joel who is responsible,” Nesson said. “There’s no reason for [the industry] to put their calamity off on kids.”

The reports of the trial depict a defense team that showed up not for a trial, but for a unstructured philosophical argument. And they weren't even really prepared for that — they seemed to have a dozen different themes and motifs and moral arguments warring with each other. Can you prepare to convince a jury to nullify? Of course you can. You prepare by meticulously building a theme and preparing to use each possible moment at trial to serve that theme. Nesson didn't. Joel Tenenbaum was not well served being represented by someone who treats law as a vehicle for self-expression, like performance art:

The questions from Tenenbaum's lead counsel, Harvard Law School professor Charles Nesson, were, to no one's surprise… not so conventional. Nesson began his questioning of many of them by asking whether they were "offended" by his decision to wear a Steve Jobs-esque black turtleneck (with blazer) in lieu of a business suit. "I’m a teacher in my normal life," explained Nesson. "This is what I wear every day."

Nesson also questioned potential jurors about their views on marijuana decriminalization, even asking one woman how she would feel if she heard during the trial about Nesson's own (admitted) pot-smoking. She said she didn’t mind, though Judge Gertner quickly made clear that the trial would not delve into that subject.

Look, I'm biased here — I don't like Charlie Nesson. I don't like him, as I've said before, because I'm offended by his disdain for rule-bound lawyering. Crazy Charlie's philosophizing about the law may contribute to our cerebral appreciation and understanding of it. But ultimately the rule of law is a worn, greasy tool we use to serve real people, or what's the point? Lawyers serve real people by learning mundane black-letter rules and by preparing elaborately for their cases. That's what we're here for — for the success of our clients, not for our own self-regard.

When I was a kid, I thought that you are a grown-up when you hit 20 and old when you hit 40.

It was easy enough to learn that the notion about 20 was wrong; there are 20-year-old grown-ups out there, but most of them are working. It remains to be seen if 40 is old. I'm feeling cranky, but that's probably just because it's a Monday. I shall inspect my lawn for unwanted kids when I get home.

How tolerant of their nauseating surveillance state are the inhabitants of the Green and Pleasant Land getting? Well, their government's Children's Secretary — a man who is named, believe it or not, "Ed Balls" — is proposing to install CCTV in 20,000 homes across England. Yet the people of the Sceptred Isle have not yet risen up and hanged him from a lamppost.

The Children’s Secretary set out £400million plans to put 20,000 problem families under 24-hour CCTV super-vision in their own homes.

They will be monitored to ensure that children attend school, go to bed on time and eat proper meals.

Private security guards will also be sent round to carry out home checks, while parents will be given help to combat drug and alcohol addiction.

In archetypal English fashion, the power to peer into homes has not been reserved to the central state, but is being delegated to local busybodies and Mrs. Grundys:

There should be Family Intervention Projects in every local authority area because every area has families that need support.

Call me suspicious, but I am not comfortable that the District of Columbia Police are taking a prominent role in preparation for security at the Pittsburgh G-20 summit this September.

Security planning for the Group of 20 economic summit in Pittsburgh is a numbers game driven by questions that can't readily be answered: How many police officers will be needed for thousands of protesters and how many arrests can be safely and fairly processed in courts?

Among other things, security will be beefed up by officers and consultants from the DC Police Department: the same DC Police Department which believes it's authorized to conduct military-style police sweeps and to set up barricaded checkpoints to search people entering suspicious neighborhoods.  The G-20 Summit is likely enough to produce craziness without oversight and advice from a department well known for disregarding the constitutional rights of the citizens it serves.  For that matter, Pittsburgh's own preparations for mass arrests against evil anarchists may become a self-fulfilling prophecy.

The right to free speech includes commercial speech, but that's lost on some.  If the Chicago Transit Authority were to ban tasteful ads for say, James Joyce's Ulysses, or an art exhibit featuring the work of some modern Robert Mapplethorpe, would that get more attention than a ban of ads for Grand Theft Auto?

On the other hand, some of the worst threats to free speech come from those who exercise their right to "cry wolf," or to proclaim that "the sky is falling."  Witness this story from Christianity Today, in which Ashley Horne of Focus on the Family warns of the Matthew Shepard Hate Crimes Prevention Act:

if passed, the law could expose pastors to federal prosecution if an attendee of their church committed a crime and blamed it on sermons about homosexuality. The bill does not adequately protect Christians from gay activists, she says. She worries that the prosecution would be based on evidence of motivation.

Poppycock.  The Bill can be read in its entirety here. If passed, the law would punish one who:

willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of … actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability …

Causing bodily injury means just that.  A sermon, no matter how hateful, cannot cause bodily injury, nor could it be deemed an attempt to cause bodily injury.  For that matter, despite Ms. Horne's assertion to the contrary, the bill actually provides more protection for the religious than it does to people attacked because of sexual orientation. (It contains identical clauses criminalizing such attacks, both including religion as a protected category but only one including sexual orientation.  This is what's known as a "blue pencil" clause – if a court strikes the second, which includes sexual orientation and religion, the first, which only includes religion, will remain in effect.)

We've had sentencing enhancements based on gender and age for centuries.  In my state and in every other of which I'm aware, a man who strikes a man is guilty of assault.  A man who strikes a woman is guilty of "assault on a female," and gets more time, because men by and large are far stronger than women.  There are plenty of good arguments against hate crime laws, and there are good arguments against federalizing what should be simple state felonies, but willfully distorting the content of a bill, which is what Ms. Horne is doing, doesn't promote those arguments, and doesn't show a regard for freedom of speech or religion.  I'll exercise my freedom of speech to call Ashley Horne a liar.

On a question of genuine conscience, the Foundation For Individual Rights In Education reports on the strange case of Grand Valley State University, which attempted to make state employment dependent on "demonstrated commitment to principles of diversity." An Ashley Horne, who is not demonstrably committed to diversity, could not get the job at GVSU if her beliefs failed to meet the school's litmus test.  This is no more constitutional than an employment offer contingent on "demonstrated commitment to the American Flag," or "demonstrated commitment to the Holy Koran."

What's especially silly about the case is that the job posting which brought the policy to light was "Visiting Assistant Professor of Music (Flute)". Presumably a flute instructor who assaults aspiring flautists based on their diversity would be fired in any event, but the litmus test for beliefs, at a music department, demonstrates the clash between collegiate H.R. culture and the First Amendment.

Suppose a flute professor has mixed feelings about same sex marriage, like Ashley Horne.  Suppose the visiting flute instructor just doesn't give a shit, and grades flute students based on flute talent without regard to flute diversity. Should such an instructor be downgraded in favor a less flautistically inclined, but more demonstratively diverse, visiting flute teacher?

Fortunately we won't find out, as FIRE reports the university has backed down, opening the visiting flute instructor position to anyone qualified to teach the flute without regard to that visitor's beliefs.

Private colleges of course remain free to require a demonstrated commitment to diversity, as opposed to excellence in flute instruction, in their visiting flute instructors.