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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    interesting (none / 0) (#1)
    by cpinva on Wed Mar 21, 2007 at 12:32:14 AM EST
    i'm sure he's nice to his dog, too. of course, so was hitler, until he poisoned it. which is a nasty way of saying "so what?". what does any of this have to do with the issue at hand? that's unfortunate about his son, but what does that have to do with the accusations of insider trading, which is what the trial is all about?

    with respect to the technical aspects of stocks, and other types of securities, it's the govt's job to explain that to the jury. presumably, during jury selection, they took that into account.

    as well, mr. nachio's domicile, and helping to feed the poor, has nothing whatever to do with the case at hand. it would still be insider trading, even if he bought a house and moved to denver full-time.

    i know this is meant to make the defendant "human" for the jury. however, were i on that panel, i'd just feel that my intelligence had been insulted by his attorney.

    not a good way to start a trial.

    I disagree, in part (none / 0) (#3)
    by scribe on Wed Mar 21, 2007 at 08:00:31 AM EST
    with your hypothesis that Nacchio's finer qualities are "so what".

    The point of saying the contract was left on his chair in Denver, while Nacchio was delivering food to the poor in Appalachia is twofold - first, to show what a great guy Nacchio is (and that he helps ordinary folks, contrary to the press reports and propaganda that he acts to destroy the livelihood and retirement of many to enrich himself).  Second, as perhaps as importantly, it seems a little bit of an alibi defense.

    As to the helping the ill son and reworking his life and work to facilitate that, I can see that as positive with a jury, as a lot of them have had some experience - directly or indirectly - with working around and through that problem in their workplace.

    Finally, as to Judge Stern and the trial judge - Nacchio may well have gotten a "perfect fit" of attorneys.  Stern was (and is) the retired federal judge who was appointed by the federal Court in New Jersey to unscrew the mess of corruption at the University of Medicine and Dentistry.  In short, that state-run med and dental school was a patronage mill, rife with no-bid contracts and barely-show jobs, and machinations and double-billing medicare/medicaid to beat all.  The feds almost shut them down - it was the appointment of Stern which likely prevented that.  If there's anyone who can take apart the government's case, part by part, it's the guy who gets called in to clean up a mess of (alleged) corruption and mis-operated institutions.

    I have no knowledge about the trial judge, and what follows is therefore speculation (based on human nature) but I opine that such "jumping on" lawyers is just one of the ways judges use to make sure everyone remembers who's in charge of the courtroom.  It's a territorial thing, I guess.

    Because Stern's a retired federal judge, there's almost inevitably an additional level of interpersonal dynamic between him and the trial judge - something along the lines of professional rivalry.  I wouldn't be surprised if at some time during the trial the trial judge says something to the effect of "you can rule that way in your court but not in mine" or the like.  

    By way of analogous example, I recall an incident with a former NJ judge who quit the bench (to make money for his kids' college, it was said) and now works on Fox Noise as a commentator, too.  A few months later, lawyering, he attended the weekly calendar call held in a large city, where the judge was notorious for berating counsel - for lateness, asking for adjournments, not knowing where their case lay on the calendar, stammering, snow falling, anything.  Just abusive.  This judge make some sort of naming-without-names remark about judges abandoning their jobs for greener pastures, and the former judge walked out.  I've heard there were threats of contempt tossed at his receding back, but that broke the reign of that sitting judge.

    While that won't happen here, we need to remember that judges are people, too.  They are subject to all the foibles and emotions everyone else is, and are just as fallible and just as susceptible to baser, and finer, instincts and reactions.


    You make valid points (none / 0) (#2)
    by Deconstructionist on Wed Mar 21, 2007 at 07:32:37 AM EST
      and certainly some other people would react as jurors in the way you would.

       Remember, though, in cases such as this state of mind is often a crucial issue. That means the jury must decide if arguments that the defendant might have made honest, even if serious,  mistakes rather than acted with criminal intent. So, the "humanizing" tactics are not merely ploys to evoke sympathy but also can establish grounds for jurors to believe explanations other than the prosecution's for the facts.  

    best USA trial lawyer (none / 0) (#4)
    by Screwloose on Wed Mar 21, 2007 at 09:12:21 AM EST
    I vote that Herb Stern is the best trial lawyer in America, better even than Michael Tigar and Gerry Spence. I envy you being able to watch any stage; wish I could watch every second . . .

    Mostly Off Topic (none / 0) (#5)
    by Gabriel Malor on Wed Mar 21, 2007 at 09:41:50 AM EST
    Question: I often come across the term "humanize" or its horrific, Latinate cousin "dehumanization" when I am editing the articles and papers of faculty and students (which I do for a little spending money). Most often, they are used in the same context that Jeralyn uses in this post: to refer to the process by which jurors are made to sympathise with defendants and see them in a different light than that of merely a criminal defendant.

    Does anyone know of another way of saying what we mean by "humanize" or "dehumanize?" Those words always kill the flow of a good sentence (especially "humanization" and "dehumanization"), but I've never really found a good way to convey the same meaning except through the word "personalize," which is hardly better.


    presumptively (none / 0) (#6)
    by cpinva on Wed Mar 21, 2007 at 09:45:56 AM EST
    the govt has sufficient documentary evidence to support its assertion that his actions were intentional (the "state of mind"), and not some random act.

    to build a case for fraud requires not just one document, but a chain of evidence, leading to an inescapable conclusion: the individual intended to do exactly what he/she has been accused of.

    in the absence of that critical chain, charges shouldn't be brought. a single document doesn't a defense make. he could be mother theresa's right hand man, if he committed the act, he's guilty. on the other hand, he could be satan's accolyte, if he didn't commit the act, he's not guilty.

    Sympathy is the word (none / 0) (#9)
    by Dadler on Wed Mar 21, 2007 at 12:35:49 PM EST
    Just like popular fiction loves "sympathetic" protagonists, the attorney attemtps to present their client in as sympathetic a light as possible.  

    Oops, the above was for Gabriel (none / 0) (#10)
    by Dadler on Wed Mar 21, 2007 at 12:36:18 PM EST

    Hmmm (none / 0) (#11)
    by Gabriel Malor on Wed Mar 21, 2007 at 01:37:23 PM EST
    Thanks, Dad. It's not actually that important of a thing. It's just something that's bugged me continuously for a while now. I suppose the opposite of "sympathise" meant in this way is "alienate" or "dissociate" (more Latinate vulgarities), but "alienate" carries such baggage these days (thank you Marx) and "dissociate" is prone to the same eye-stopping usage that got me started with "humanize" in the first place.

    I suppose I could always accept that the English language is what it is and I'm stuck with "humanize."


    The piper has played. (none / 0) (#7)
    by jimakaPPJ on Wed Mar 21, 2007 at 11:02:39 AM EST
    In the 90's Denver was a hot bed of the Internet and telecommunication bubble. Qwest had a presence in Denver of about three people in '95. They took off on a plan to build a national long distance network, and did it. A truly remarkable accomplishment in both time, technology deployment and overall management.

    Then two things happened.

    The bubble burst. That anyone believed the numbers for growth that was floating around is, now, unbelieveable.

    Qwest purchased US West. A tradaitional telephone company that had a huge, mostly rural, footprint, and one that been sustaining itself for years by shedding people and coming up with a new "plan" every 6 to 12 months.

    So you have a team of go-go people trying to manage a team of service orientated people. That the merger was difficult is not surprising.

    But the real problem was that the atmosphere encoraged risk taking to the nth degree. It also encouraged senior managers to take pre IPO stock options in manufacturing companies that were being evaluated by their company for contracts that, if won, would make the IPO ballon based on the award of the contract, which was based on a successful evaluation.

    I don't say any of this was illegal, or that anyone did this in an attempt to become rich in an illegal fashion. I just say the piper has played. Now it is time to see if he must be paid.

    just remember a couple more things (none / 0) (#8)
    by scribe on Wed Mar 21, 2007 at 11:30:37 AM EST
    1.  the bubble burst for everyone.  
    In reality, the bubble started bursting a few months before the end of 1999, when everyone realized that they had updated their hardware to avoid the possibility of the Y2K bug.  Once that hardware was bought and in place, there was no need to buy more.
    Similarly, with tech and telecoms, the bubble was burst about the time the guys down the hall from me (literally) would tape the stock pages from the WSJ on the walls of the break room and play darts.  Again, late 99.  That one guy made about 20k doing that made the game all the more interesting.

    That Qwest tanked means nothing, absent actual manipulation.  All the other telcos tanked, too.

    1.  If Nacchio was selling, the terms and conditions of his contract(s) may have placed time limits on exercise of options - and he may have had serious adverse tax implications (or even breached his employment contract(s)(!)) if he didn't sell.  We all remember people getting hit on their taxes over unrealized gains.  Vaguely remember, I know - it's been about 6 or 7 years, an extended recession and a couple lost wars in between.

    2.  you have a great point on the culture clash in the merger - but I don't see that as mattering much in whether there was insider trading.

    Having lived through it and in it... (none / 0) (#12)
    by jimakaPPJ on Wed Mar 21, 2007 at 06:13:10 PM EST
    Your timing is off about a year as far as telcom is concerned. I put my dart in my desk drawer in 9/00. Didn't ride it to the top, but I enjoy what it bought me, everyday.

    My pet peeve was the IPO thingee and the evaluation thingee....  That was just flat wrong.

    We all remember people getting hit on their taxes over unrealized gains.  

    Yes, we do. Yes. Yes. Yes.

    I have a daughter that still lives in Denver. If I thought I could get a seat I swear I'd fly out and go to the trial.