The comment by Mr. Baker on an earlier thread that discovery allows information which can not be obtained by even the most dogged reporters (even with industrial bank accounts to support it!) is apt. You suggest that it is not full discovery but directed as the parties seek (and can be intrusively dangerous) but it still produced a lot of critical information in this case that I doubt would have come out otherwise.

Anyone who has shown a strong interest in this case has certainly learned a lot from the limited discovery that has reached the public (but see below) and also from the original 62 page complaint which does not seem to have been refuted by the trial.

The case has also thrown people who are interested into the history of Mr. Welser-Most and it does not take long to learn that criticism of the same kind offered by Rosenberg has followed him since he was 29 years old but he has nonetheless and deftly managed to make a very solid career regardless. As Mr. Baker said, and as many others have pointed out overseas, V-M seems to shine at opera and choral but routinely lets his audience down with instrumental works. “Snoring Through Mahler” said one European critic. Not Franz Welser-Most but “Frankly Worse Than Most” said the London critics during his time there. All of this was “out there” but who cared to look until prompted by the demotion, case and the trial? It clearly tends to validate Rosenberg.

But it would have been impossible in a one-newspaper town (Web or not) for Rosenberg, single-handedly, to get at all the facts, much less report them and they are, all in all, fascinating.

It has to be remembered that even before the PD demotion, the Orchestra itself locked Rosenberg out of his decades-long office, barred him from access to its archives, and refused to allow him backstage on tours.

In an ideal world, courts should not be used as a vehicle to make a statement or gain hard-to-find information but there are sanctions if plaintiffs do not reasonably believe they can win the case.

In an ideal world, Doug Clifton’s remarks to MAA’s Richard Bogomolny would have been adhered to by his successor, Susan Goldberg. He had said to an earlier Bogomolny complaint: “My sense is that Don’s criticism is based on an honest and strongly held belief that Franz is not up to the job. In the end… we must tread lightly on the independence of our critic. To overrule him in the face of protest would make a mockery of the critical process.”

Can anyone who has followed this say that it would not have been better if Ms. Goldberg had toughed it out and followed that policy?

Somehow this story needed to be told and Rosenberg’s remarks that he couldn’t have lived with himself if he had just walked away from it made a lot of sense especially since at the time, he knew so many facts the rest of us did not know. You have said that he is not damaged because he remains an esteemed critic–as if he can go elsewhere and do work of the same caliber as he did reviewing the Orchestra. Highly unlikely, especially at his age, to relocate to another top 5 (or is it now top 7!) orchestra.

Everyone seems to agree that the details of this mess make both defendants look (as you put it) rather “stupid” but was not actionable. Perhaps if there had been another general circulation newspaper, the story could have been told there (and denied without any oaths by the various sides) and of course it could have been told on the Web with a highly uncertain audience. One of the great values of an actual newspaper is that it is more likely to inform somebody who is not looking for a particular niche. People following the Rosenberg story on the Web would, inevitably, “be preaching to the choir” as, to a certain extent, the limited number of commenters on your blog attests!

One fact is true. Rosenberg wrote an important book about the Orchestra, and as disappointing as this latest chapter is, it does belong in that book.

Those who really want to immerse themselves in this trial can do so. The entire trial is available on DVD-ROM for, cough!, $600. The URL is is:

http://shopping.courtroomconnect.com/s.nl/sc.8/category.3272/.f

I was not criticizing your limited audience. I am grateful that you care enough about this issue to create a forum. I was criticizing the fact that few people care as much as you do to search and find it and respond to it.

I agree that Rosenberg’s contract did not allow him to win this case but you agree that Rosenberg’s claimns were not frivolous. Ergo, if it was not frivolous, he had a clear right (to him a duty) to file the case and let the chips fall.

They fell. The PD and the Orchestra do not look good when those “chips” are fairly considered. Rosenberg looks better than he did before filing. If it was not frivolous and the Plaintiff wins on the issues if not on the law, the Plaintiff was probably correct to go forward.

You have said before that corporations will lobby the PD and the PD will bend to those whims but even if it is rampant, we all deserve to know when and how it happens and the Rosenberg case helps us understand that a lot better.

Thanks again.

And David — I’m grateful for your readership and for your kind words about my attention to this matter. I’m commenting as a lawyer. I think Mr. Rosenberg was poorly served by his lawsuit. That’s all. Nor do I think it served the larger community as much as many people seem to think.

David — if he had been fired, it would have been a breach of the Guild contract and he therefore would have had a legal claim. Quite plainly, then, the lawyers would have told the PD not to fire him. There was no basis to. But neither did the newspaper have any obligation to keep him as the reviewer of the Orchestra.

And in fact the vast majority of cases are settled before trial because by the time the parties have had the opportunity to conduct discovery they’ve got a pretty good idea of their chances and can come to some rational monetary settlement without leaving the resolution to the vagaries of a jury. The more emotional the conflict, however, the more difficult it is for such rational calculations to be made.

This case wasn’t, in my very possibly mistaken opinion, going to settle because the PD and the Orchestra had nothing to gain by settling. Their legal positions were very strong, and any settlement by them would have looked like a concession that they did SOMETHING wrong.

After a jury verdict against Rosenberg, however, I think the righteousness Rosenberg plainly stood for in the eyes of most people could only be diminished. Since I thought all along that he would lose, I therefore don’t entirely understand why he pursued the case. When he was reassigned, the righteousness of his position was as high as it ever was. You’d like to ask the jury what would have happened under certain circumstances, but the fact is what we know is the jury found against him entirely.

Not that the lawsuit did the PD and Orchestra much good. But the damage was done when they reassigned Rosenberg. In my twitter chat with Tim Smith last night, he very intelligently suggested that the newspaper could have more creatively and productively dealt with the widespread perception that Rosenberg was beating a dead horse with his persistent criticism of Welser-Most by, say, dividing the reviewing duties between him and someone else.

I think Smith’s idea that the dispute could have been headed off in that or some similar way is a really intelligent one and far more in keeping with my view of what lawyers should do — resolve disputes as productively and efficiently as possible — than what resulted from what happened.

Because I don’t think the lawsuit did Rosenberg any good. That’s all. But if he was advised that he was very unlikely to prevail on any of his claims and he wanted to proceed any way — hey, that’s his choice. He’s the client, and he calls the shots.