How to Humanize a Defendant
This is mostly for the trial lawyers reading TalkLeft.
We all know how important it is to use opening statements as a vehicle to humanize our clients, to show a wrong has occurred and to convey the idea of their innocence of the charges against them.
Defense attorney Herb Stern (a former federal judge and prosecutor) did an excellent job in opening arguments today of humanizing his client, former Qwest CEO Joseph Nacchio, charged with insider trading.
First, he told the jury, "I'm going to tell you something no one has ever known." Everyone, jurors and those of us in the media room, leaned forward. Big pause.
Then he says, one of Joe Nacchio's sons was seriously ill, not physically but emotionally.
(Nacchio has been criticized as being a carpetbagger, a New Jersey-ite who took over Qwest, headquartered in Denver, and never spent enough time here.)
Stern wove that into: Phil Anschutz, the billionaire owner of Qwest, approached Nacchio, not the other way around, to head up Qwest. Nacchio didn't want the job because of his son's illness -- he didn't want to be spending all his time in Denver. He needed to be close to his family.
But Anschutz wanted Nacchio so badly he built into the contract that Nacchio didn't have to move his office from New Jersey. He could keep it. And he'd never have to spend more than four days a week in Denver. Stern said that was so he could be with his emotionally ill son. Stern said, "I'll prove it to you. I'll introduce the contract."
Two more examples. The Government made a big deal of a memo that Qwest President Mohebbi wrote to Nacchio purportedly warning that Qwest might not make its financial targets.
Stern countered with telling the jury, first off, Mohebbi didn't mail the memo, he left it on Nacchio's chair at the office in Denver. But Stern will call a Catholic Abbot who will testify that the week the memo was written and left on Nacchio's chair, Nacchio was in Appalachia spending the week with the Abbot delivering food to the poor. The implication being, multi-millionaire Nacchio cared about the poor even before he was accused of wrong doing, enough so to take a week out of his life to hand-deliver meals to the poor people of Appalachia.
Then there was this: Another big hush as Stern said he had another secret to share.
At the end of January, 2001, his emotionally ill son attempted to commit suicide. He went into one hospital, then more hospitals. For more than 30 days the boy was confined in hospitals.
Nacchio, hearing his lawyer say this, is looking down, his hand over his eyeglasses. He’s crying. He wipes his eyes. I was sitting close enough to him to see they were real tears.
His lawyer says, Nacchio came to Denver in February. He had an out. He could have resigned. He could have used his son’s difficulties as a means to get out. He didn’t. He committed to staying. Qwest wanted him to sign a new contract since his original contract expired at the end of 2001. He will put the new contract in evidence. It had the same provisions about the New Jersey office and limited travel to Denver. He signed the contract in October. This, his lawyer argued, showed his devotion to both his son and the company.
So Stern did an excellent job of humanizing his multi-millionaire client. But the Judge might not have liked it. Immediately after Stern's opening, at 4:15 pm, the Government called its first witness. I left before the witness testified, but here's what the Denver Post reports happened:
The trial is expected to last eight weeks. Which will the jury remember, the defense opening humanizing Nacchio or the Judge's criticism of defense counsel? I guess it depends on how often the Judge jumps on them. This is a judge who in my experience is quick to jump, but he jumps on both sides. So it may be too soon to tell. But Stern scored some points today in recasting the image of his client. But the point is, you may have a client whose only redeeming quality is that he loves his mother. It's up to you as his lawyer, to bring that out. The jury needs to see your client as a human being. We are all greater than the sum of our misdeeds. And the jury needs to know it.
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