Carefully Plan Trial Tactics

trialstrategyU.S. District Court Judge Nancy Gertner’s recent opinion in a file-sharing lawsuit against Joel Tenenbaum was highly critical of defense counsel’s behavior and trial strategy. Tenenbaum was represented by Harvard Law Professor Charles Nesson.

“Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web . . . .”

Gertner was also critical of Nesson’s fair use defense for two reasons. One, Gertner apparently solicited Neeson to make his best case for fair use, but the defense was presented in such a broad manner that it would have excused all file sharing. Two, Nesson┬áhad signed an earlier amicus brief that declared such a defense was “very weak.”

The decision underscores a couple of points. One, never underestimate the importance of deadlines and following the basis protocols of the rules of civil procedure. Two, consider your audience when crafting a strategy—tailor your argument to what the judge wants to hear. Three, taking a position and then changing course can be devastating down the line.

File-Sharing Judge Blasts ‘Truly Chaotic’ Defense | Legal Blog Watch

(photo: Tracy Lee)

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