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Nottingham getting stern with Stern
By Tom McGhee, Staff Writer
Denver Post 
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 a tongue-lashing.

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 week.

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 federal prosecutor.

"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 Denver Post.

"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 said.

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 charts?"

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 at me."

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 tmcghee@denverpost.com

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