Nottingham getting stern with Stern
By Tom McGhee, Staff Writer
Monday, March 9, 2007
If attorney Herbert Stern has proven anything in his defense of
former Qwest chief executive Joe Nacchio, it is that he can take
Stern has repeatedly withstood the wrath of U.S. District Judge
Edward Nottingham, a jurist known for rough handling of
lawyers. The trial began three weeks ago, and barring
unexpected developments, is expected to go to the jury this
In mini-eruptions throughout Nacchio's trial for illegal insider
trading, Nottingham has admonished Stern with scathing
pronouncements like: "You need to be organized before you begin
your examination," "Chill, chill, chill," and "Don't try that."
Nottingham has unloaded on the government's lawyers as well, and
has issued rulings that some see as constraining them. But he
hasn't chastised the prosecution with the same frequency or
intensity as he has Stern. Stern served as a federal prosecutor
and federal judge in New Jersey for many years before going into
private practice. And he is the author of an eight-volume tome
titled "Trying Cases to Win."
It was almost inevitable that sparks would fly when he got into
a courtroom with Nottingham, who has a reputation for strict
adherence to rules, said Denver lawyer Tony Leffert, a former
"He was a federal prosecutor and a federal judge himself. This
is a high-profile case. You have a high-profile lawyer from New
Jersey who has experience as a prosecutor, has written books and
clearly is someone who has a healthy ego. You put that
situation in front of Nottingham, who is a very strict judge and
insists on lawyers doing what he tells them to do. It is not
surprising that there will be conflict."
The contentious dialogue goes beyond the normal dueling between
lawyers fighting for strategic ground and judges insisting on
control of the courtroom, said University of Denver law
professor Jay Brown, who is working as a legal analyst for The
"Always when there is conflict with a judge, it is about
strategy and control of the courtroom, but you have to wonder if
the conflict here is more severe because of particular styles of
behavior," he said.
Stern's courtroom style was honed in courthouses in New Jersey
and Nottingham's was honed here in Colorado. Legal cultures in
the two states could differ in ways that lead to conflict, Brown
And the defense has sometimes seemed disorganized, a condition
that is bound to raise the hackles of a judge known for keeping
a trial moving forward on schedule.
On Thursday, after jurors left the courtroom and the defense
asked for time to produce documents for prosecutors, Nottingham
engaged in a particularly testy exchange with Stern and his
fellow defense attorneys.
Nottingham: "Are you telling me you haven't prepared these
Stern: "You're yelling at us, so I'm trying my best to not
offend the Court but represent a client."
Nottingham: "Look, don't engage in this gratuitous
self-effacing approach to things. Just answer my question."
The exchange became more heated when the defense asked for a
break to talk to a potential witness.
Nottingham: "As I have told you continuously throughout this
trial, when the jury is here in the jury room, I want to do my
best to see that they're not twiddling their thumbs in there."
Stern: "Your Honor, I speak to you respectfully and in a
moderate tone. I would appreciate it if you would stop shouting
Nottingham: "Mr. Stern, do you want to answer my question, or
do you want to sit there and make speeches?"
Stern: "I'm standing, and I'm not making a speech."
Nottingham: "Sit down."
Brown, who read a transcript of the exchange, said he could see
why Nottingham was upset.
"Nottingham has been irascible all through the trial. He has
been colorful in his expressions, but in terms of the hearing on
Thursday, I think he had reason to be angry. I think he viewed
the defense as unprepared, and in his courtroom one thing we
have been seeing is, the trains run on time," Brown said.
Jurors didn't hear the exchange, and the skirmishes they have
witnessed have largely been less rancorous.
When a jury witnesses a judge dressing down a lawyer it can have
an effect on the outcome of the case, Leffert said.
Jurors see themselves as an extension of the court and generally
align themselves with the judge. Constant scolding from a judge
can turn a jury against a lawyer and his or her client.
But a dressed-down lawyer can also win sympathy for the client
if jurors believe the judge is unfair.
A good lawyer will take action to minimize any damage a judge's
admonitions are doing to his client, Leffert said.
"If it rises to the level where you feel it is going to
prejudice the client's case, you say, 'I would like an
instruction to the jury that these outbursts aren't going to be
held against the client,"' Leffert said.
Staff writer Tom McGhee can be reached at 303-954-1671 or