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Is Charles Nesson Brilliant or Insane?

Just last week, I happened to be talking to someone who knows Harvard Law Professor Charles Nesson and asked him his impression. The person described him as "brilliant," then adding after a moment, "and eccentric." It is safe to conclude there is agreement on that description, given that today's issue of The Boston Globe says he is "widely regarded as one of the most brilliant, if eccentric, professors at Harvard Law School." But the article is also peppered with less-kind adjectives: "crazy," "off the charts," "insane," "bizarre" and "wacky." So which is he, brilliant or insane?

The article by Boston Globe reporter Jonathan Saltzman carries the clever headline, "To Noted Lawyer, It's an Open and Shout Case." It reports on Nesson's offbeat tactics in defending Joel Tenenbaum against music-industry charges of unlawful file sharing. We've written about this case before (here, here and here), but Saltzman's piece provides a number of intriguing details about how Nesson's handling of the case is drawing criticism even from the RIAA's most outspoken foes.

In one recent example, he recorded a telephone conference with U.S. District Judge Nancy Gertner and then, after she told him to stop recording, he posted the audio on his blog and made it part of a take-home exam on evidence for his students (who were in the room listening to the call). In another, he posted e-mails from potential expert witnesses explaining why they considered the legal theory underlying his defense to be flawed.

Nesson explains all this as a strategy of openness. "Joel committed no crime. He's ashamed of nothing that he's done. He has no need for attorney-client privilege. He has no need for secrecy. He wishes he could claim privacy, but that has been previously violated [by the recording industry]. ... It's our strategy to litigate this case open."

But other lawyers, Saltzman writes, "say that's just plain crazy." One such lawyer is Ray Beckerman, who writes the blog Recording Industry vs. The People. He tells Saltzman that he considers Nesson's posting of e-mails from dissenting experts he had consulted to be "insane." Ben Sheffner, author of the blog Copyrights & Campaigns, describes it as "off the charts," telling Saltzman, "I can't imagine any lawyer on earth revealing that his own experts think that this case is seriously flawed."

What does Nesson's client think of all this? The 25-year-old doctoral student at Boston University told Saltzman that he considers himself lucky to have Nesson and a team of Harvard students defending him and that he trusts Nesson's instincts. When Saltzman asked Nesson whether his client had given him permission to post the e-mails, Nesson responded incredulously, "Did he give permission? I represent him. I am him. We are one."

So are Nesson's strategies in this case case brilliant or insane? Or as lawyer and client merge as one, is it Zen and the art of lawyering? I'll leave those questions for you to answer for yourselves.

Posted by Robert J. Ambrogi on April 8, 2009 at 11:31 AM | Permalink | Comments (1)


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