[D]o not emulate anything you see from either side in this case. Very little of it is remotely connected to what normal lawyers do when engaged in the practice of law. Usually I don't pity federal judges, because they are fairly privileged people with a lot of power and a lifetime job. But in this case my heart goes out to Judge Nancy Gertner because she and her staff attorneys are the only normal lawyers working on this case, so they have to do all the heavy lifting themselves, with no help from counsel for either side.(italics removed). Nesson emailed Beckerman to ask, "what did you find so bad?" Of course Nesson posted the ensuing email exchange to his blog. A few highlights from Beckerman:
In general you are trying to make some kind of statement instead of focusing on the particular case at hand, and the cards which you have been dealt.
If you want to run a holy war against the RIAA’s litigation campaign then do what I have done: take on different cases, for different people, with different factual situations, and try to win each one, or do the best you can with each one. Just because you’ve chosen to confine yourself to one case doesn’t mean you should use it as a platform for changing the world. The judge has her own problems, and she has a job to do; and you’re not helping her to help you when you submit a brief like that.
To me the whole brief was problematic throughout; if one of your students, when in practice, submitted a brief like that, the judge would be laughing at him or her under his or her breath.
You’ve made a series of arguments for which you have no basis other than emotion. And you’re arguing the case as if you are in the Commonwealth of Moot. And you’re arguing the case as if Joel is Jesus.
You should concentrate on real lawyering, not treating motion practice to a judge as if it’s a television drama closing statement to a jury.