Story Time with Uncle Charlie (Nesson)

Yesterday, I attended Charles Nesson‘s American Jury class. Nesson was a very successful Harvard Law Student (he supposedly had the highest GPA of anyone in the half-century after Felix Frankfurter graduated, and he clerked on the Supreme Court), and a very successful law professor (he represented Daniel Ellsberg in the Pentagon Papers cases and was involved in the litigation for Daubert,  an incredibly important case for the law of Evidence (which he teaches)). He recently represented an unfortunate man named Joel Tenenbaum in a trial where Mr. Tenenbaum lost a judgment of $675,000 for sharing 31 songs on KaZaa when he was a teenager. Many people think Mr. Nesson is a bit crazy.

Here’re three things he said in class about the case.

(1)
Charles Nesson: The biggest mistake I made, in retrospect, was letting my client be deposed. After he was deposed, they were able to make him look like the bad guy at trial. What could we have done to keep that from happening?
Student 1: Couldn’t you just say no? Just have your client say no to appearing at the deposition.
CN: Just say no? Well, if you just say no, then the other side files a motion to compel, and if you don’t have a very good reason for your client not to appear, then you can be fined for the legal fees used in writing the motion, which is why I’m now personally liable for $2286 for the 8 hours of work the other firm performed in writing the brief. So, no. Just say no, doesn’t work.

(2)
Student 2: Could you have your client plead the 5th?
CN: Ahh, the Fifth Amendment. Well, what I didn’t know until recently, was that there is in fact a criminal penalty available for file-sharing, so, yes, the Fifth Amendment would have been a good idea.

(3)
Student 3: How exactly did the other side portray your client as the bad guy?
CN: Well, after they sent a letter to Joel informing him of copyright infringement, Joel sent a letter back offering to settle the case with a $500 money order enclosed. He also wrote that he’d go back home and immediately delete the music. Apparently, he didn’t actually delete the music, so they showed his letter to the jury with everything else blacked out and it made him look like a liar.

So, three things that I think are relevant here: First, as to (3), the rules of evidence say that you’re not allowed to use information from or about settlement negotiations in court as a way of proving your case. Second, Nesson should know this, since he teaches Evidence. Third, (as to (2)) every time you watch a movie at home, at the beginning it says that if you copy the movie in an unauthorized way, you could be sent to jail for criminal copyright infringement. Whoops!

Note: I’ve paraphrased the above quotes, since they were said in class yesterday, and I sadly didn’t have a tape recorder.

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3 thoughts on “Story Time with Uncle Charlie (Nesson)

  1. 1. “Just say no” is obviously stupid. The costs are bad enough, but you lose seriously credibility with the Court if you refuse to comply with discovery for no reason at all. You do not want the judge to think that you have no respect for the law; it will color everything you say in his/her eyes and make your life a million times harder.

    2. Pleading the 5th in a civil case is recipe for disaster. Unlike a criminal trial, the jury can be instructed to take unwillingness to testify as evidence of guilt. This adverse inference may not be 100% of the preponderance of the evidence the other side needs to prevail, but it’s damn close. Unless you client is going to rant about his love for Hitler and Osama bin Ladin, you’re almost always better off with anything that they say rather than the inference. This is also why (ethics aside) you should advise your clients never to destroy evidence.

    3. As for the Rule 408 issue, you should pay more attention in evidence. Settlement negotiations aren’t admissible to prove the validity of the claim. They are admissible for other purposes, including impeaching the credibility of a witness if that witness lied during the negotiations. If they blacked out everything but the lie, it’s totally kosher.

  2. As to 3. I did not know that. I indeed should have paid more attention in evidence (or just not taken it, since I’m not going to litigate). So I guess his quotes don’t impugn Professor Nesson’s knowledge of evidence, just his general ability to try a civil case.

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