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Judge Tells RIAA To Stop 'Bankrupting' Litigants
NewYorkCountryLawyer writes "The Boston judge who has consolidated all of the RIAA's Massachusetts cases into a single case over which she has been presiding for the past 5 years delivered something of a rebuke to the RIAA's lawyers, we have learned. At a conference this past June, the transcript of which (PDF) has just been released, Judge Nancy Gertner said to them that they 'have an ethical obligation to fully understand that they are fighting people without lawyers ... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it ...' She also acknowledged that 'there is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,' and also stated that the law is 'overwhelmingly on the side of the record companies,' even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."
Too bad that our legislators aren't as honest and bright as this judge.
Yeah, uh, no. The judge basically said "this is wrong, and I'm not going to a damned thing about it."
The judge has bent over backwards to make the trial as one-sided as possible. This statement is just meaningless hot-air, since the judge has absolutely no intention of doing a damned thing about it.
I'm going to quote directly from the linked article - part of it is already quoted in the summary, but this part is important:
[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]
I suppose I shouldn't be surprised, it is Boston, the city that rewarded its police for demonstrating "valor" when they opted to not kill an MIT student who had a few blinking LEDs on her shirt...
I believe the point is that the record companies are repesented by lawyers, hundreds of lawyers, who are trained in the law, and who have experience not just in the strategic use of the law, but in its tactical uses as well. The strategic uses include choice of venue, points of law to be briefed and argued, witnesses to prepare and examine, etc. The tactical uses include the taking of depositions, issuing subpoenas, and requiring access to documents and accountings. All of this can be arcane and difficult to fathom for a non-lawyer, and compliance can be expensive. Non-lawyers are at a disadvantage in both depolying these strategies and tactics and in executing them to the satisfaction of a court. It is not that the defendants were not permitted to speak. It is more as if they could not find the right words to say.
Summary author is a Lawyer who has been fighting the RIAA for years now. I believe he does understand the role that judges fill, one is to make sure that the court is fair to both sides.
Thank you, Gutboy. I've actually written an article about the very issue of the economic "imbalance" in these cases, and the unlevel "playing field", Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations. It was written for the "equal access to justice" issue of the ABA Judges Journal.
Ray Beckerman +5 Insightful
Regarding the Eighth Amendment, the Supreme Court has held the "excessive fines" clause inapplicable to civil jury awards of punitive damages in cases between private parties, "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." (Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989)) Therefore, while leaving open the issue of whether the clause has any applicability to civil penalties, the Court determined that "the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government." (Id. at 268.)