Eight volumes speak strategy
Herbert Stern, author and lead attorney for the ex-Qwest CEO,
will stress key points and try to get jurors to argue his case
By Andy Vuong and Greg Griffin, Staff Writers
Sunday, February 25, 2007
Herbert Stern, Joe Nacchio's lead attorney, will come out firing
in the criminal insider-trading trial of the former Qwest chief
Stern will lay out his case early in his opening statement. He
will move through his points quickly but will make sure the jury
hears his most important material more than once. He'll
"hitchhike" -- or extract helpful information from the
prosecution's witnesses during cross-examination.
And during closing arguments, he'll try to teach his "friends"
-- jurors who believe Nacchio is not guilty -- how to argue
against others in the jury room.
Stern offers those tips, and many others, in an eight-volume set
of books titled "Trying Cases to Win." The first was published
in 1991, the last in 2004.
Stephen A. Saltzburg, co-author of three of the books, said
Stern will follow the framework outlined in his books.
"He's going to do exactly what he writes that you should do,"
said Saltzburg, a professor at George Washington University
School of Law in Washington, D.C., who has known Stern for more
than 25 years.
Stern declined to comment.
Nacchio's trial is set to begin March 19 in U.S. District Court
in Denver. If convicted, he faces a maximum penalty of 10 years
in prison and a $1 million fine on each of the 42 counts of
illegal insider trading.
Saltzburg said prosecutors would gain an advantage by reading
Stern's books before the trial.
"It's always a good idea to read what your adversary has
written," he said. "It's kind of like having tried a case
against somebody who you've known before. You have an idea how
they approach litigation."
Department of Justice spokesman Jeff Dorschner declined comment
when asked whether any of the attorneys on the Nacchio case has
read Stern's books.
Ten- and four-hour-long videotaped lectures covering key points
in Stern's books are available at the Justice Department's
education facility in Columbia, S.C., which trains federal,
state and local prosecutors.
Stern served as a federal prosecutor and judge in New Jersey for
many years before going into private practice.
Attorneys who have read Stern's books give them high praise.
"The author's comments on direct and cross-examination are
cogent, well-organized and practical," University of Florida law
professor and former attorney Bob Dekle writes in a review on
Amazon.com. "The rookie advocate would do well to heed his
teachings, and the old warhorse could also pick up a thing or
two to help hone his techniques."
"It's obvious he knew what he was talking about," Dekle added in
San Francisco attorney Robert Spanner said the books were
helpful to him but are "not wildly popular."
"I don't think I recall a single person who has referred to
those books in any context," said Spanner, who has practiced law
for 30 years.
Swaths of testimony
Many of the books feature large swaths of testimony from old
Stern begins one of the volumes with a 12-page prologue
examining the 1820 adultery trial of Queen Caroline of England.
The point? Lawyers should be careful about what they say in
court. A verbal misstep by one of her lawyers nearly cost her
Many of the other trials Stern quotes at length were his own
during his time as a federal prosecutor in New Jersey, where he
put away corrupt politicians and mobsters.
In the fifth volume, the entire transcript of a case is printed
Spanner said the most important tip he got from reading the
books is to not "make your case a response to the other side's
case because that puts you on the defensive."
Among other points, Stern writes that the opening argument is
more important than the closing.
"If you have a defense, open on it," he writes. "Open on it
fully, powerfully, proclaiming it as the truth."
Thus, Stern's opening argument in the Nacchio trial may serve as
a billboard for the rest of his defense, Dekle suggests.
"Listen to the first paragraph or two of his opening statement
and you can probably glean his case theory from that," he said.
If he follows his own advice, Stern won't call any of the
prosecution's witnesses liars during the opening argument
because he fears he won't be considered a gentleman if he does
so. He'll save that for the end of the trial.
"Most of us grow up in court with the advice to never call
anyone a liar during your opening because you will not be
considered a lady or a gentleman; wait until summation," Stern
Stress key evidence
When dealing with jurors, Stern writes that attorneys should
often repeat the significance of key evidence.
"It is essential that your jury, or for that matter your judge,
hear your important material more than once," he writes. "Every
seasoned trial lawyer knows not only that once is not enough but
that even twice may be insufficient."
He stresses the importance of moving quickly and not calling a
"Legend has it there are two kinds of trial lawyers: the quick
and the dead," he writes.
Stern said closing arguments are not the end of the trial -- but
rather an important preface to deliberation of the client's fate
in the jury room.
"The purpose of the summation, particularly after a trial of
length, is to teach your friends on the jury how to successfully
argue with your enemies on that same jury -- because the 'final
argument' will not take place in the courtroom but rather in the
adjoining jury room," he writes.
The Nacchio trial could last up to eight weeks.
Stern gives quirky names to a number of his tips, such as the
Wimbledon and Charlie Chaplin effects. Wimbledon encourages a
smooth dialogue between attorney and witness during direct
examination. Charlie Chaplin discourages questioning a witness
from a prepared script.
"But remember that we all think, talk and write about the trial
of cases much better than we could ever try them," Stern writes.
Staff writer Andy Vuong can be
reached at 303-954-1209 or
"When lawyers question from a prepared script of questions, they
produce what I call the Charlie Chaplin Effect. ... In the
earliest Charlie Chaplin silent films, you see a herky-jerky
Chaplin who bounds across the screen in choppy steps. ... The
viewer of the courtroom scene is similarly disconcerted by
questioning from a script."
- from "Trying Cases to Win"
A lawyer's words to that effect
Some additional excerpts from Herbert Stern's eight-volume set
of books titled "Trying Cases to Win."
The Wimbledon Effect
During direct examination, the goal is " ... to achieve the
Wimbledon Effect as you argue your case right through your
witness. By Wimbledon Effect I mean that the jurors' heads
should be swinging back and forth between the attorney and his
witness, as though the two figures were at each end of the well
of the court -- and the jurors were positioned between them much
like spectators and, hopefully, fans in the viewer benches. ...
If a lawyer on direct is standing at the end of a jury box ...
with the jurors' heads swinging between him and his witness ...
then this lawyer is making hay with that jury."
The Buster Keaton Effect
"Training witnesses to give long narrative answers, rather than
short responsive ones to specific questions, leads to what I
like to think of as The Buster Keaton Effect. In Keaton's films
we see him take every step. But he takes them so quickly that
we cannot comprehend them."
On lawyer and jury
"An advocate does best when he is perceived to be correct. Do
not strive to be witty, or to be charming, or to be loving or
even to be loved. Just be thought to be right! If you achieve
that, the rest will invariably take care of itself."
On use of literary and Biblical quotations
"Analogies and quotations are always dangerous to those who
invoke them, ... for nearly every such business can be turned
around to bite one in the back."
On unpredictability of trial
"Once the trial is underway all our pretrial plans, predictions
and stratagems are reshaped by an unfolding reality which is
never even approximately predictable. ... Nothing ever happens
exactly as planned. The courtroom contest is as much a place of
constant readjustments as any other of life's playing fields."
"In every bullfight the matador enjoys one great advantage over
the bull. It lies not in the matador's speed or agility, for
the bull is faster. ... It lies in a piece of wood that stands
close to the side wall of the bull ring. ... Whenever the
matador finds himself in trouble, he runs as fast as he can
behind this wooden barrier until the bull passes by. ... So,
too, it is in argument. ... Whenever the advocate falls under
attack ... he runs behind his strongest arguments ... and lets
the bull go by."