There is a wonderful allegory where a woman finds a frozen snake, takes it home and nurses it back to health. That night, the snake bites the woman. As she lays there dying, she asks the snake how it could do such a thing after she took it in and nursed it back to health. The snake responds, “But you knew I was a snake when you took me in.”
Massachusetts District Court Judge Nancy Gertner’s innate sense of fairness and belief in the Constitution has made her a star in the federal judiciary. So when the RIAA suit against Joel Tenenbaum was wheeled to her, she felt compelled to level the playing field. From Ambrogi at Legal Blog Watch :
U.S. District Judge Nancy Gertner, concerned about the imbalance between big record companies and pro se defendants, pointed lawyerless defendant Joel Tenenbaum to Charles Nesson, a professor at Harvard Law School and a founder of Harvard’s Berkman Center for Internet & Society. Nesson took up his defense and also saw in the case a broader educational opportunity. One of his first moves was to seek an order allowing a motion hearing to be webcast — an order granted but later put on hold.
But this honeymoon, like all, didn’t last forever. In the course of his “representation,” Nesson decided to reinvent the Rules of Civil Procedure, ignoring predicate discovery requirements and local rules, together with efforts to convert the suit into a “teaching opportunity” for his Harvard Law students. Judge Gertner finally hit the wall.
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.
Having received a kindly worded rejection from Harvard Law School, I never had the opportunity to experience life under the pedagogy of Charlie Nesson. Fortunately, the same can’t be said for Ken at Popehat, who had the pleasure of this exchange in Nesson’s Civ Pro class.
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.
Ken learned a lesson that day, though not the lesson that Nesson thought he was teaching.
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 elsewhere that law school is not meant to train lawyers, but to “appreciate the depth of the legal discourse and explore its rich complexities.”
(As an aside, Ken links to Bennett’s rendition of the absurd remarks of Marquette Lawprof David Papke, rather than mine, showing that the better blawgers hang together to keep the riff-raff out.) While we can scoff at the notion that law school professors should be engaged in teaching students to become lawyers, the evidence is clear that they neither want to nor believe that to be their calling. They are theorists, not practitioners. They teach. We do. Granted, this is a gross oversimplification, and many lawprofs are also regular practitioners, but more are not and wouldn’t have the slightest clue what to do if they found themselves in the well.
But rather than castigate Charlie Nesson, Harvard Law procedural theorist extraordinaire, for his maladept effort at representing David in the face of Goliath, I can’t help but wonder what Nancy Gertner expected when she sought his help. For crying out loud, he’s a Harvard Law professor. Did you expect competent counsel? Did you expect him to put aside his pedagogical interests and focus instead on the plight of Tenenbaum? Lawyers represent clients. Lawprofs teach. What did you expect Nesson to do?
Charlie Nesson wasn’t retained by Joel Tenenbaum to represent him before Judge Gertner. It was the judge herself who sought his help and brought him into the case. Nesson didn’t lobby for the opportunity, or actively seek a role. He accommodated the court and took it on as a courtesy. He tried to take lemons and make lemonade, using the case as means of teaching students and expanding the audience of the case so that as many people could learn from it as possible. He pushed the limits of litigation, but then he did so for entirely legitimate purpose: He’s a lawprof. He came by it honestly. And this is what he gets for it?
I’ve had the experience of working a few cases in my time with Harvard Law professors. I’ve found them dogmatic in their approach and understanding, and almost entirely lacking in an understanding of jurisprudence; the mechanics of winning a case. They were far more concerned with pursuing a theory they thought valid and important than the life of the individual in their hands. It was generally a painful and often tedious experience, trying to explain why brilliance really wasn’t the point of legal representation. But in my cases, the lawprofs were chosen by the individuals involved, and hence they got what they paid for.
In this case, the judge picked Charlie Nesson to defend Tenenbaum. If he wasn’t the best pick, who’s to blame? After all, she knew he was a lawprof when she took him in.