AUSWR
The Association of U S West Retirees
 

 

 

Stern's approach in front of a jury: "Don't be brilliant. Just be right" 
By Al Lewis, Staff Columnist 
Denver Post
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," Stern says.

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 know.

"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. Respond to Lewis at denverpostbloghouse.com/lewis, 303-954-1967 or alewis@denverpost.com.

http://www.denverpost.com/business/ci_5457849