A visit to court with Charlie Nesson.

The District Court of Rhode Island also serves as a post-office. I considered buying stamps while we waited to clear security. They confiscated our electronics, placing each of our cell phones into a separate locker next to the x-ray machine.

Groups exited the elevator at the second floor after clearing security, shuffling uncertainly into the hall while simultaneously re-looping their belts through their pants. As the growing group waited in the hallways, Charlie sat quietly, staring ahead. He turned to some students and asked

--What did you think of the Lenny Bruce story?

Everyone stared at the floor, trying to think or avoiding eye contact or perhaps furiously pretending no question had been asked. Eventually one brave soul attempted a response, about the power of the court being to keep itself above the crap.

Charlie blinked.

--Process is for losers. That’s what that story is about.

--Come in and sit down. We need you out of the hallway.

The marshal escorted us in with his mildly affronted Rhode Island accents. The court staff was not amused. From the marshals to the court reporter, they eyed the students suspiciously, as if we came with the express purpose of amusing ourselves as raucously as possible. A gaggle of students did not comport with their idea of the proper dignity of the court. We waited. An A.P. newsman and a local journalist took seats behind us. Counsel for the Plaintiffs rather anxiously awaited his co-counsel, being assured by the reporter that it was early yet. His co-counsel did arrive shortly, his rumpled suit back staring at us before he took his seat.

--All rise.

Somewhere between a trudge and a jog, the judge made his way to the bench. The proceeding was entered into the record, noting the procedural difficulties from the earlier proceeding in December and that Charlie had been admitted to argue before the court and so had local counsel (“welcome back.”). Counsel made their appearances for the record. Wasting no time, the judge announced he’d received a motion late this morning. Charlie stood up slowly and expectantly.

--The motion is denied. Now---

--Your honor, if I might speak

--Nope. [And yes. He said, “Nope.”]

Counsel for plaintiffs, the one with the less rumpled suit and the bad hair, sat up a little straighter, as if congratulating himself on being a real lawyer without a classroom of students behind him.

--Anything else?

Eagerly, the bad-haired lawyer began talking about the filing by the respondents and his confusion as to who Charlie was representing in these proceedings. Not quite rolling his eyes, the judge turned to Charlie and the local attorney.

--We are appearing for Judith and Arthur Tenenbaum in this matter.

Still imagining he had an edge, the bad-haired lawyer explained that the motion had been brought pro-se by Ms. Tenenbaum (he insisted on calling her Ms. The judge referred to her as Mrs.) but signed by Charlie too, as if exasperated by the silliness of this defense and inviting the judge to share his superior attitude (You and I judge, we get this. What are these crazy kids up to? This is law). The judge was having none of it.

--In order to file with the court, Mrs. Tenenbaum had to file pro se because her attorneys were not yet admitted. That explains that. Let’s get started.

Charlie stands and the judge attempts not to notice him.

--I would make an objection.

--We haven’t started yet.

--I would make an objection to this proceeding.

As he laid out his grounds I half expected him to turn to us to continue a lecture. The judge wasn’t sure whether to be amused or annoyed, but Charlie made his objection and sat back down. The proceedings began, Charlie’s white digital recorder sleeping on the empty table in front of him.

Making a show of collecting his papers, bad hair made his way to the podium. Before he could begin, the judge interjected his concern that they were seeking to take a family computer, that was doubtless full of private information, probably private medical information about the family, and that it was not clear to him that the emachine was necessary. Bad hair engaged strenuously, first complaining that they didn’t know there was privileged information on the machine and suggesting that Ms. Tenenbaum had lied or misled the record companies in her deposition.

--I haven’t seen that deposition.

--I have a copy right here your honor. I’d be happy to give the court a copy, your honor.

The judge turned to Charlie.

--Do you have a transcript of the deposition?

Charlie did not stand or change the direction of his gaze.

--We have no money. We cannot afford to get transcripts of the deposition.

--Do you have a copy for respondents?

--Yes, your honor.

Retreating from characterizing Ms. Tenenbaum’s deceptions in the deposition, Bad hair went on to describe the process as quick and easy, and assured the court that the Tenenbaums could create a privilege log, the contents of which would be protected. Moreover, he stressed that they needed the computer because Joel, in his deposition had confessed his downloading activities on the emachine.

--Where is that?

--He said he used Kazaa, your honor.

--Is that somewhere else in the deposition, or is that what you’ve got here in the motion?

There was a slight pause.

--Yes, your honor.

The judge raised his eyebrows and half-glowered from the bench as he shuffled the two pages.

--“Maybe,” “might have,” “I don’t know.” This doesn’t sound like an admission to me.

--yes, your honor.

The judge went back to his concern about the copying of the hard drive. Perhaps misreading the court’s concern, bad hair repeatedly assured the court that the Plaintiffs would pay for the copying. The court also expressed confusion as to which computer was the emachine of the many computers involved in the case. As bad hair wrapped up and delivered the thick copies of the depositions of Joel, Judy, and Arthur Tenenbaum to the court and to Charlie, it again emphasized how cavalier the judge’s off-the-cuff dismissal of our motion had been, given the probable importance of the depositions to making sense of the case.

Charlie stood up and gave our arguments from class. Privilege and undue burden. (You can read the quote about no greater violation of privacy than to have to disgorge the contents of your computer online—there’s a link in yesterday’s news@law). He also gave the court a brief lesson in computers—how privileged or private information my still be in the hard drive even if it has been deleted.

After Charlie, bad hair stood up and hummed a bit about not wanting privileged information, and how everybody’s doing it, and how it would be okay. The judge pushed him a little, and he seemed to think the best strategy was to answer not quite the same question the judge had asked.

Charlie then again stated his objections to the whole proceeding, holding up his tiny recording device and challenging the court to think of a reason not to allow it when the respondents couldn’t even afford transcripts and the plaintiffs have the full might of the state pressing down upon them. It was stirring. If you weren’t there, you missed out.

As we were heading down the stairs, Judy Tenenbaum, donning her elbow-length bright orange gloves, vented her frustrations about the things bad hair had said about the depositions, about the timing, the computers, and herself. It would be terribly frustrating to have a response to something being said, and be unable to make it because of procedure. Perhaps those raucous trials we read about in the history of the jury had a more satisfying way of going about this. They call it the right to confront, but when it’s all sanitized by procedure and done on your behalf through lawyers, it cannot be so satisfyingly confrontational.

A single marshal, bearing an uncanny resemblance to Mr. Magoo, was unlocking each individual locker one at a time, retrieving the single cell phone inside, and returning it to its owner. After scowling at us the whole way in, we’d thought they’d speed us right out. We were wrong.

Eventually the group was reassembled outside the courthouse, where a film crew was interviewing Charlie. Charlie may have a very good point about the legitimate needs of poorer litigants to make their own records of trials, but the spectacle outside the courthouse illustrated a good reason to continue to prohibit at least video recordings. The assembled law students were terribly aware of the camera, standing up straighter, adopting looks of fixed nonchalance. In a system that places so much on the judge and jury’s ability to observe the demeanor and comportment of the witnesses, it could skew things strangely to have a camera fixed upon them.