Saturday, May 27, 2006

Enron Verdict: Props to a Losing Attorney

After the verdict came in this week on Jeffery Skilling and Kenneth Lay for their part in the Enron fiasco, I watched some clips of the post-verdict press conference with Mr. Skilling and his attorney, Dan Petrocelli. And, I've just got to say, I have rarely been that impressed with how an attorney conducted themselves at a press conference after such a high-profile loss. Whether spontaneous or well-orchestrated, Mr. Petrocelli put on a school for how to handle a high-profile loss (and I'm assuming how to prepare your client to handle themselves as well). There were no harsh or abrassive words for the judge, the jury or the verdict. The most antagonistic words from Mr. Petrocelli regarding the outcome of the case were "We will have a full and vigorous appeal" and "Obviously it did not come out the way we had hoped. Doesn't change our view of what happened at Enron and certainly doesn't change our view of Jeff Skilling's innocence." For Mr. Skillings part, the most defiant thing he had to say was "Obviously, I'm disappointed."

It doesn't do a defendant any good for them or their legal team to throw a tantrum after a verdict. Judges tend to frown on that and it can come back to bite a defendant at sentence. But, I think the way this press conference was handled sets up an interesting scenerio for sentencing. It's one I've dealt with before - even as recent as a jury trial I had two weeks ago. It would not suprise me if the argument made at sentencing is that Mr. Skilling maintains that he, subjectively, believes that his actions were not carried out with any improper motive or intent but that he understands how a jury can reach that conclusion based on the evidence presented. On that basis, the defendant will profess his/her utmost respect for the jury's decision. A wise defendant then always claims that the lesson they've learned is to refrain from any actions that could be interpreted or misinterpreted as improper or criminal. Based on Mr. Skilling's defense and his testimony at trial, I don't think a judge will think Mr. Skilling is sincere if he does not maintain some semblence of a claim that he subjectively believes he did not commit a crime. So, the thing for Skilling to do is respectfully stick to his position while giving unconditional respect to the jury's verdict, express what lessons he learned from the incident, and, of course, beg for mercy.

Before I end, I will give a tip of the hat to Sean Berkowitz and the Enron Task Force that was responsible for the prosecution of the Enron mess. What a daunting task! The pressure to obtain convictions was, no doubt, tremendous. And, what a group of witnesses to have to rely upon to obtain a verdict. As my former boss once told me about such cases: you just hope the jury understands that when you cast a play in hell, you don't have angels for actors.


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