9. (tie) Plato Cacheris*;
Trout Cacheris; Washington, D.C.
10. Robert Morvillo;
Morvillo, Abramowitz, Grand, Iason, & Silberberg; New York
* With Baker & McKenzie in 2003
Source: Corporate Crime Reporter
Taking the Stand
Sometimes it’s better to say nothing at all.
Should an executive on trial testify in his own defense? That is “perhaps the single most difficult and important decision in trial strategy,” says Jeffrey E. Stone, a partner at McDermott Will & Emery. The results can vary widely, and can depend as much on the defendant’s personality as on the facts of the case.
Juries often expect to hear accused executives present their side of the story, say defense attorneys. However, “if you put a client on the stand, the entire focus of the case will change immediately,” says Dan Webb, a partner at Winston & Strawn in Chicago. Although the burden of proof rests with the prosecution, juries tend to forget that when a defendant testifies. “Jurors are no longer focused on the government; they’re focused on my client,” says Webb. “The entire case will rise and fall on whether they believe my client.”
The tactic has had mixed results for finance executives recently. On one hand, the testimony of former McKesson Corp. CFO Richard Hawkins about his role at the company formed a key part of the defense that led to his acquittal in a trial before a San Francisco judge. Former Tyco CFO Mark Swartz, however, was not as convincing on the stand. Swartz was convicted by a New York jury and is appealing his 8 1/3-to-25-year prison sentence. — K.O’S.
The Human Touch
Revealing the Person Behind the Numbers
One of the toughest tasks a defense attorney faces is humanizing a rich, white-collar defendant to a middle-class jury. In the Tyco case, for example, “the bonuses involved were greater than the combined lifetime income of the jury,” says Charles Stillman of Stillman & Friedman PC, who defended former Tyco CFO Mark Swartz against fraud and larceny charges. “You have to figure out a way to explain that without offending the people you’re talking to.”
One technique is to “front the evidence” and deal with the salary and bonus numbers before the prosecution does, say attorneys. “The numbers can be blinding in these cases,” says Jeffrey E. Stone, a partner with McDermott Will & Emery in Chicago. To help jurors look beyond outsized pay packages, attorneys explain the responsibilities involved with the CFO role. “You say, ‘Yes, this person got paid a lot of money. He got incentive pay because he did a good job,’” says Stone.
Talking about family, philanthropy, and other non-work-related activities can also help a jury warm up to a CFO defendant, says Stone. “It’s important that they not be perceived as someone in an austere blue suit who doesn’t speak.” — K.O’S.