Trial may show whether Stern is man of his
By Al Lewis
Sunday, February 25, 2007
When former Qwest chief executive Joe Nacchio is tried on
criminal insider-trading charges next month, his attorney,
Herbert Stern, just might arrive at the courthouse in a Chevy.
That's what I learned thumbing through Stern's eight-volume set
of books called "Trying Cases to Win." In a volume penned in
1991, Stern offers this advice for wealthy trial lawyers:
"For those of you who own Cadillacs, Maseratis and Mercedes,
give those cars back to your spouses on the day you go to
court. Go to court in a Chevy."
Stern, who declined to discuss his books with The Denver Post,
heads the legal defense of a scandalized CEO that may cost up to
He's a highly accomplished attorney with five honorary degrees.
He has taught at Harvard, Yale, Columbia and University of
Chicago law schools. But it's best if jurors don't know all of
"Remember, those jurors of yours are not a fair cross-section of
the community," Stern wrote. "There are virtually no bankers,
nuclear physicists, or surgeons on the jury. Those people wrote
the judge and many got excused. Your jurors are people who ...
come from an economic class different from yours. When they
leave the courtroom, many of them will go to neighborhoods
different from yours, and houses that do not look like yours.
And your job is to avoid reminding them of that. ...
"The more elegant you are, the more you speak lawyer-type talk,
the more you quote Shakespeare or poetry, the more you remind
jurors of the socioeconomic gulf between you and them."
Speaking strictly to lawyers through his books, Stern isn't
afraid to quote the Bard, Aristotle, Quintilian and other
classics. He also makes use of a line from Charles Dickens:
"The law is an ass."
It appears that to Stern, the law is not the only donkey in a
courtroom. Under a section titled "Using Pathos," he writes:
"Not only do people (judges and jurors) decide on the basis of
emotion and not reason; they do not know they have done so. ...
They will rarely give you the real reasons for their decision
because they themselves either do not know or are unwilling to
admit -- sometimes even to themselves -- what those real reasons
are. This syndrome explains why it is not particularly valuable
to question jurors after a verdict."
Most jurors are incapable of impartiality and objectivity, Stern
opined. "No trial lawyer really wants a neutral juror," he
wrote. "At best, we will settle for one, assuming such a
possibility. What we all want are jurors who are inclined to
see things in favor of our client."
It appears from Stern's book that he has experience representing
guys named Joe. But he will never say this name in court.
"Never try to warm a jury up by calling your client by his first
name -- 'Now, I represent Joe, and Joe, you know, is accused of
going too fast on the highway. ...' We hear that sort of thing
done all the time. It's bad. Why? Because it is an obvious
attempt to woo the jurors. ...
"The court is not the kind of place where it is natural to call
anybody 'Joe.' ...
"Only a hopeless elitist would believe that you could fool all
six or 12 jurors into believing you were doing anything other
than trying to ingratiate yourself with them by this tripe."
Stern writes that "a trial lawyer needs more than the appearance
of humility to win. ... He must appear to care more about the
truth than about winning."
He advises lawyers to avoid boasting about their brain power.
"Remember the advice, 'Never try to impress the jury with your
brilliance.' Such demonstrations will only make your job as a
salesman harder if they succeed in persuading your customers
that you are so smart that they have to watch you closely."
Stern concedes that jurors are not completely stupid.
"Well, make no mistake," he wrote, "your jurors are not so
stupid that they do not understand that they are your judges.
They have the power ... to send your client home or send him up
the river. ...
"Jurors know that you are an advocate for profit. That means
they know you are in it for the money. And, of course, you
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