Monthly Archive for May, 2009

Hi Professor Nesson,

I want to thank you for the three most inspiring classes I took at law school. Your classes challenged me and pushed me to think in directions I never would have imagined. One of the most vital truths I often was reminded of in your class is that the structure of how a message is delivered, is as important as the content itself, so with that in mind, my final paper for American Jury is attached. I also signed up to do an additional credit of work regarding my marijuana and Judaism paper, so I filmed a video, its on YouTube, of my soulmate (read: second life avatar) Rabbi Shtreimel, delivering a sermon in virtual synagogue on the topic. Here is the link: http://www.youtube.com/watch?v=f_LOyJlqv-Y

Good luck with everything in the future! I’ll be following the headlines!

David Gross
Professor Nesson
American Jury
Spring ‘09

All the King’s Children

A long time ago, in a far away world, an epic fairytale (without a fairy) unfolded. Twelve unsuspecting, unbiased, unprepared, uninitiated, and unlikely children were methodically hand-selected for their profound weaknesses. Yanked from their families, these children would soon enough be thrust into an unwitting battle with a power hungry, robe-wearing, menace, the King of all the land, who was notorious for wielding a hammer-like scepter. But let us not jump ahead.

It all started with a royal letter. “BRING FORTH YOUR CHILDREN FROM YOUR DIRTY LITTLE HOVELS LEST THEY BE ENTRAPPED IN MY DUNGEON!” it read. Not surprisingly, the vague letter reached its desired effect. In the month of Adar of that year, every male and female child, throughout the land, was collected and brought to the King’s stables, the stuffiest, sweatiest, smelliest, building in the whole county. The children were most uncomfortable, but nobody was concerned. Throughout the day, a lucky few children (or so they thought) were chosen, at random, to leave the stables, and march over to the royal court (which was nearby, but not near enough). One by one, these “lucky” children were paraded in front of the King, to be evaluated for their potential for subversion.
“Your highness!” one of the King’s henchmen sharply barked, “That child is unworthy to be in the King’s presence!” With a slam of the notorious scepter, the child was immediately dragged out of the royal court by his feet. As the lore would have it, nobody would ever see him again.

Without missing a beat, the henchmen continued to whittle away at the group of scared little children. “That one was caught stealing!” “That one wears baggy pants!” “That one’s skin color is not to the King’s liking!” “That one has access to magic beans!” By the time the henchmen were through, only twelve “pure” children remained in the King’s presence. His Highness looked them over, scanned them with his penetrating eyes, and felt satisfied that he had found the most frail, impotent children in all the land.

In time, these twelve children would learn to rely on each other. But for now, they were too intimidated to even make acquaintances. One precocious speckled child, named Henry, who was obviously underestimated by the obtuse henchmen, seized upon a silence in the royal proceedings to make his voice known. “How long will I be here for?” he whined. Astonished by this brash, high pitch, uncalled for tweet, the wide-eyed henchmen were paralyzed. The King though, grizzled by the battles he had waged to achieve such a lofty position, seemed intrigued, if not willing to entertain this small infraction. Delicately and purposefully, the King said, “My child, do not fear. You will be here only as long as the Law demands it, and not a moment longer.” The scepter slammed creating a loud noise. Even though he was unsatisfied and bewildered by the King’s response, Henry sat down quietly, afraid of the scepter’s power, and chose not to push for more details. Needless to say, the other children in the room were awed by Henry’s courage, and would not soon forget it.

As the sun set on that fateful day, the King retired to his royal palace, in the center of the city. A banquet was being held in his honor, to which he was excited to attend. The children, on the other hand, were carried by the henchmen to a small, solitary, sleeping quarter at the edge of town. When they arrived at the deserted and dark destination, the henchmen bid the children farewell and promised to return first thing in the morning to pick them up for “royal service”. With that cold goodbye, the henchmen departed to their families, who were awaiting their arrival dutifully.

The children were now alone in the darkness, and as any new parent knows, such a lethal combination can cause even the most confident child to unleash deafening cries. Most of the children quickly fell asleep, as if to block out the trauma of the day. Not Henry though. As tears began to slowly crawl out of his sad eyes, Henry’s heavy breathing morphed into a small whimper. Just as he was about to lose total self control, a soft hand brushed his shoulder.

A young girl whispered, “Don’t be sad. Everything will be okay.” The shock of her sweet touch helped console Henry’s nerves. He could barely make out her shadow in the darkness, but just knowing that she was there was reassuring. Henry managed to get out a few coherent words before losing himself once again in emotion. “I miss my mommy. I want to go home.” The little girl nodded in agreement. She could relate to the natural desire to return to the security of the world she knew best. Yet, she persisted, “We can’t go home yet. The King won’t allow it.” Henry, whose anger towards the King had been building furiously since being silenced in court, became enraged at the mere mention of his name. “But the King went home tonight! He got to see his mother!” The little girl listened intently to his emotional outburst, but either brilliantly or ignorantly responded, “You heard the King in court. We will go home when the Law allows it. Not a moment later.” The two children, Henry and Wendy, continued talking into the night, and before long they were both dreaming of memories past.

The next morning, the henchmen woke the children from their slumber. They traveled together from the remote cave in which the children slept, to the royal court. The King was waiting for their arrival. “Welcome, my children” he bellowed. “Welcome to my royal court, where you will have the esteemed honor and privilege to serve the entire county. You have been selected from amongst all the children of the land, because you are the most qualified to listen and carry out my instructions. After all, I am the King, and if what I say is followed, everyone in the county will be better off.” The King slammed his scepter, and the children quivered with fear.

The children were immediately put to work. Annabelle, Aaron, and Alex, were ordered to shine the King’s shoes. Billy, Bertha, and Bethany, buffed the King’s throne with toothbrushes. Charlie, Camille, and Carlton, polished the royal goblet. Finally, Henry, Wendy, and Mendy, were sent to wash the royal lavatory. Although the King often relied on his henchmen to interact with the children, every so often His Highness would speak (down) to them directly, usually to reassert his dominance. Months went by, and nothing changed.

Since there were only two henchmen, and one King, one of the four groups of children was always left unsupervised. On this particular day, Henry, Wendy, and Mendy, were left to their own devices. Henry and Wendy had become fast friends since that first night in the cave, many months ago; Mendy was more than happy to act as a third wheel. As the trio was scrubbing the royal shower, Wendy began crying. “I’m sorry” she said, directed at Henry. “We have been serving the King for so long. When I met you, that first night, I sincerely thought that a day would come when the Law would no longer be in need of our services. Now I fear that that day will never come.” Henry tried to reassure her, but nothing would quench her despair.

Suddenly, Mendy stood up. Something in Wendy’s words resonated deeply with him. Mendy, who was ordinarily the silent type, could no longer contain himself. “The Law?” he asked skeptically. “I have never even seen the Law. How can something invisible keep us captive?” Henry and Wendy were astonished. Not only was Mendy speaking (to other people), but his words were inflammatory, and showed the promise of subversion. Just at that moment, the door swung open and none other than the King was standing there.

The children were frozen in fear, and after bowing in respect, they quickly shuffled out of the facility to give His Highness his royal privacy. Fortunately, the King had not overheard their conspiracy. He had simply come to take a shower. The children breathed a sigh of relief, but Henry, inspired by Mendy’s passionate display, felt impelled to act on all of their behalf. He quietly reentered the royal lavatory, tiptoed as silently as his tiny child feet would allow for, and without knowing what exactly he was about to do, he stole the royal hammerhead scepter, as the King was busy bathing. As Henry turned to escape, Wendy and Mendy were standing beside him, holding the royal robes. The three children quickly ran out of the bathroom, unsure of what they had done.

Suddenly, a deep, resonating voice blasted forth from their stolen spoils. The entire palace shook with vibrations. The other children came running, as did the fresh faced henchmen. The King, still covered in shampoo, stumbled furiously out of the lavatory, screaming incoherently. Without his robes and his scepter, the King looked just like a little boy, and could have easily blended into the other children. The hammerhead scepter began to speak. “I am the Law!” And then, as if taking on a personality of its own, the scepter looked squarely at the King, and said, “And who the hell are you!”

The End.

here’s my motion to judge gertner which i did not file because my team thought it disrespectful. i mean and meant no disrespect. my effort was to communicate my objection and my thought directly. i feel the pace of the case requires fluid direct response lest the message be lost in falling over itself in form as this objection was lost because my team thought it in bad form. then let this be a teaching and learning moment. is this bad form, and if so why, and should it make a difference if the alternative comes at cost?

MOTION TO RECONSIDER ORDER PROHIBITING DIGITAL RECORDING OF A DEPOSITION

I ask you to reconsider your order prohibiting me from digitally recording a telephonic deposition. I ask you to distinguish rhetorical space for the function of telephonic conference among judge and lawyers from the different rhetorical space suited to the function of on-the-record deposition. I am not here asserting either the right or the intention of immediately serving the digital record of this deposition to the net (thank you to my opponents for their parentheses). I will accede to your considered judgment whatever it may be, albeit with retained objection.

In response to a request from opposing counsel to agree to this deposition by telephone I said yes if I can audio record it. I am not available at the time scheduled for the deposition, nor for certain are any of the five students who have been admitted provisionally to the bar of the court to practice with me in this case. But I would like to listen to it and be able to use a record of it in conferring with my team. If the deposition is to be used at trial I would like to have the deponent’s voice and tone as well as the stenographer’s text (which we protest at having to purchase if we are to have a record at all). My assistant is able without cost to call in on the conference line and audio record what transpires with my digital recorder. As I read the federal rules of civil procedure I am at least entitled to an exercise of your discretion to permit this.

I claim a right to audio record this deposition as part of Joel’s right to counsel. This is the cheapest and most efficient way of evidencing it.

[snip]

Respectfully submitted,

Charles Nesson
Counsel for Joel Tenenbaum

Dated: May 4, 2009