Stern's approach in front of a jury: "Don't be brilliant. Just
By Al Lewis, Staff Columnist
Sunday, March 18, 2007
Twelve will be selected this week to decide the fate of former
Qwest CEO Joe Nacchio.
Herbert Stern, the New Jersey lawyer who heads Nacchio's legal
team, will not waste time getting to know them.
"It's not to get information out of them," Stern has said of
jurors. "It's mainly to put information into them."
Stern discusses his jury-selection tactics in a 1985
instructional video for trial lawyers called "Jury Selection:
The Seven Deadly Sins." He advises attorneys to craft jury
questions that set up key elements of a defense or prosecution
before opening statements even begin.
Stern declined to comment, but on his tapes he warns against the
No. 1 sin of jury selection: "Don't concentrate on the humdrum
details of jurors' lives."
"How much information are you really going to find out from
these people?" he asks his live audience of about 250 trial
attorneys in Tucson.
Yet, he says, "this is life and death in the case, any case. ...
What wouldn't you give to be able to speak to each juror's
psychiatrist, mother, husband, wife, father, whatever. ... We
yearn to know the answer to that question, 'Do you love me or
don't you? Do you love my client or don't you? How do you feel
about crime and punishment?' ... We would love to know those
things, and yet it is denied."
Mostly, what lawyers should know about jurors, Stern opines, is
that they are lowbrows. They are not bankers or doctors. Those
people got excused. "The people that you have there are people
who are making more money being there than not being there,"
In another video I watched, called "Trying Cases to Win," Stern
critiques an attorney's performance by joking that this attorney
was talking to the jurors as if they were "undershirted beer
suckers." Asking jurors what they do for a living and how they
do it is of no use. "All you are doing is forcing these people
to humiliate themselves," Stern says. "That's all."
Stern is a former federal prosecutor and judge who has taught
law at Harvard and Yale. He heads a legal defense that could
cost tens of millions of dollars.
If actors can be worth millions for a single film, Stern could
be worth it for a single case. His performances reminded me of
Al Pacino. He fires off words in staccato bursts, swaggering on
a stage in a dark suit, pointing fingers and beaming intense,
challenging stares that leave little room for debate. "Don't be
charming. Don't be clever. Don't be quick, Don't be
brilliant. Just be right," he says. "If that's the feeling
they come away with, they will be yours and you will be theirs
for as long as it matters."
He talks about a brilliant trial attorney who could remember
names of scores of people, even as they switched chairs, during
jury selection. "I was overwhelmed," Stern says. "I can't even
remember the names of my friends."
But Stern calls that feat a mistake.
"Everybody understands how hard that is to do. And that's the
very reason why you must never show that you are able to do it.
True? Do you want those people to believe you are the smartest
human being they ever met? ... Who does the jury believe gets
the best lawyer? The guilty. The ones who need them. ... Don't
show that much power when it doesn't even count. ... The abiding
feeling your judges and juries should have after every case you
try is, 'well, you know, she's a pretty good lawyer, but gosh
she was lucky to be on the right side of this case."'
As to choosing who should be on a jury, Stern says he does not
"I have read drivel in books. There was a book, 'Trial
Diplomacy,' ... in which it was written, 'Look, don't have
skinny people on the jury if you're for the plaintiff. They're
mean. Big fat people, they love life. They are jolly and
happy.' Isn't that ridiculous?...
"Clarence Darrow thought he knew how to do it. ... He wrote ...
'If your defense is drunkenness, have a lot of Irishman on the
jury.' ... That's close to witch-doctorism where I come from.
"I don't want to try a case based on my assessment of who these
people are and what's going to move them. I will not tailor my
case to the idiosyncratic tendencies of anyone. I want to
tailor my case so that just about anybody will be moved by it."
Al Lewis' column appears Sundays, Tuesdays and Fridays.
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