joel’s observations

(As trial draws near, we continue in our tradition of transparency. Below are some observations from Joel. –DBR)

The law offices of Feinberg & Kamholtz are on the 6th floor of a 22-story granite and glass modern office building.

Nesson arrives and we make our way to the conference room.  Feinberg and Kamholtz have a professional appearance about them.  As we make our outline of the trial, what witnesses we’ll call and what we’d like each to convey, what witnesses the RIAA will call and what we’d like to get out of them on cross-examination, I’m struck by the sense of familiarity in the work, each as if a needle on a record, comfortably settled into its groove.

As a math major, I’d always assumed the practice of law was solely taking the rules as axioms and applying them.  I had completely neglected the human element: when and to what will a human jury pay best attention?  How does a witness or lawyer come across to a jury?  These considerations were to be weighted alongside the content any witness would deliver.

And this was how it continued: Feinberg and Kamholtz distilling information out of Nesson, generally them framing from their perspective, and Nesson reframing when he differed.  When greater clarification was needed, I had to chance to see Nesson’s talent for explication.  With even meter, he juxtaposes unexpected phrases, seamlessly shifting from literal to the metaphorical, managing to convey what for so many other speakers is that elusive sense of “you know what I mean,” supporting contested opinion on clearly distinct bullets, fired upon loading.  Moments I recall specifically:

At one point, Feinberg raised the question: how do we even know these guys are so good?

“They’re good.  Oh yeah, they’re good. They came in nice and low-key.  Look, we’re up against a litigating machine; this was a business.  And they’re at the end of their run.  They’re going-out-of-business so they have the maximum amount of experience on the deepest data set they ever had. And they’re not working on anything else.” I looked.  A broad smile was across his face, savoring the superlative of the situation.  He continued speaking, his voice carrying a hint of laughter, “So we’ve got their A-team with their A experience.  We’re definitely up against people who are good.”

We moved on.  “Where has fair use been upheld?  Give me an example of fair use that’s been upheld,” asks Kamholtz.  Nesson queries the database of his mind, returning Supreme Court examples before adding the general history of fair use at lower levels and how , “…the whole field came to believe that this was something judge’s simply decided. ”

We moved on to experts, Nesson explaining what each would say, underscoring or clarifying with metaphor, “He’ll talk the history of the music business,” Nesson says,  “What happens when you’re selling bottled water in the desert and it starts to rain.”

What to look for at the trial

I don’t think I’m giving away the subtleties of our “Super Secret Strategy” by saying that all evidence presented will be channeled into the four statutory fair use factors, as well as an additional factors Nesson will argue should also be held for consideration.  Nesson believes we stand very well on the four factors, although it’s interesting to note that they are just suggestions.  It is mandatory that you consider them, but there are no instructions on their interpretation, nor are they imposed to be the only factors to consider.

Reflections on Nesson

Amazingly, to him, everything is connected.  From being allowed to record conversations to net neutrality.  The form of the defense is inseparable from its content.  He lives his life the embodiment of a unifying principle, yet is supremely versed in the mundane details of law and its application.  This seems to come off as insanity to people who have only read about him, inadvertently sampling his more notorious moments, but, having debated with him many times, I can tell you that every action he takes makes sense, if you have the time and energy to drag out of him what it is.