Billing at rates as high as $700 per hour and taking home paychecks that can run to seven figures, top white-collar defenders are well compensated for handling such pressure. But many say they are in it for more than the money. Keker, for example, relishes the complex legal questions that arise in white-collar defense. "There is always a mental element to a white-collar case," he says. "A lot of these people didn't really think they were committing a crime. They don't think, 'I'm committing a felony,' in the way that someone who sticks a gun in your face and takes your purse knows he's committing a felony."
Such ambiguities keep white-collar practice interesting, agrees Richard Janis. "There's a tendency when you're a prosecutor to think someone is either good or bad," he says. "But in the real world, you can have very good people make a really bad mistake, or you can have people who are unfairly accused."
In the end, the top white-collar defense lawyers take unpopular and seemingly unwinnable cases like those of the Enron and WorldCom executives simply because somebody has to. "An important part of our criminal justice system is having defense attorneys who will zealously defend their clients. If that wasn't there, the government would run roughshod over people who are innocent," says David Schertler. "That is just as true in white-collar as in traditional street crime."
Kate O'Sullivan is staff writer at CFO.
Cream of the Crop
In a 2003 poll of white-collar criminal defense attorneys by newsletter Corporate Crime Reporter, the following attorneys were selected as those the respondents themselves would hire.
1. Dan Webb;
Winston & Strawn; Chicago
2. John Keker;
Keker & Van Nest; San Francisco
3. (tie) Reid Weingarten;
Steptoe & Johnson; Washington, D.C.
3. (tie) Brendan Sullivan Jr.;
Williams & Connolly; Washington, D.C.
4. Robert Bennett;
Skadden, Arps, Slate, Meagher & Flom; Washington, D.C.
5. Thomas Green;
Sidley Austin; Washington, D.C.
6. Earl Silbert;
DLA Piper Rudnick Gray Cary; Washington, D.C.
7. Daniel Reidy;
Jones Day; Chicago
8. Robert Fiske Jr.;
Davis Polk & Wardwell; New York
9. (tie) Theodore Wells Jr.;
Paul, Weiss, Rifkind, Wharton & Garrison; New York
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.
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