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.
Last 5 posts by Ken White
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