Legendary D.C. lawyer Jake Stein died last week at 94. He was that rarity in Washington and among lawyers, a universally respected attorney who had made few enemies and had few detractors. He was also long regarded as the sage of the profession in D.C., whose thoughtful and erudite essays that closed the bar associations’ monthly magazine, Washington Lawyer, were perhaps the most-read features of the publication.
I was reminded in his New York Times obituary that Stein represented Kenneth W. Parkinson, a former lawyer for President Nixon’s re-election committee, when he was charged with conspiracy and obstruction of justice in the Watergate scandal. Parkinson was the only indicted Watergate figure who was acquitted, and Stein’s skillful defense was considered to be the reason. His closing argument was made unusually dramatic by Stein weeping as he described Parkinson as a pawn of “confessed perjurers,” and pleaded for the jury to consider his client’s character and the wounds the unjust prosecution had inflicted on it. “Doesn’t a lifetime, where you built it up grain by grain, weigh against that?” Stein asked plaintively.
I wonder: were Stein’s tears real, and does it matter?
Many years ago a famous Florida lawyer passed away, and his colleagues revealed that he used an onion juice-soaked handkerchief to make him cry when he thought emotion would benefit his client. Clarence Darrow didn’t need onion juice: he could cry during closing arguments at will, and often did. When he was representing himself in his trial for jury tampering (Darrow was in fact guilty but was found not guilty), his copious tears soaked through multiple hankies, and had many in the jury sniffling.
Darrow had the skills of an actor, as do most of the best trial lawyers, and a lawyer is obligated to use his or her skills to serve the client. If a lawyer lacks a skill, he is obligated to do everything he can to mitigate the disadvantage to his client’s cause. I have no problem with the onion juice trick. The tears that the Florida lawyer used to move the jury were no less genuine than Darrow’s tears. How genuine are flamboyant displays of outrage in a trial, or any other emotion? Are feigned emotions in defense of a client deceptions, or just good, competent representation? I think it’s a close question, but ultimately one has to concede that calculated and convincing emotional displays are legitimate legal advocacy skills.
Back to Jacob Stein: were his tears “real”?
His Times obituary reveals that Jake’s true love was juggling. “If he had to take the L.S.A.T.’s and jump through the hoops of today, I doubt he would have become a lawyer,” his daughter told the Times. “His backup would have been to run away and join a vaudeville show or to become a juggler.” So Stein was, at heart, a performer, with an ethical performer’s dedication to refining his skills. Speaking once about his juggling aspirations, Stein said, “I thought that would be a wonderful life…to do something to perfection.”
Few who worked with Stein or observed his career would deny that he mastered the law to perfection, and that meant refining and perfecting his skills in persuading juries. Tears were just one more legitimate tool to have ready when needed by his clients.
Ethics Alarms 
Who was it that said, “Sincerity is the most important thing in politics. Once you can fake that, you’ve got it made.”?
Answer: Lots of people, but as to who said it first, nobody knows! See: https://quoteinvestigator.com/2011/12/05/fake-honesty/
The credit for the original concept usually goes to Jean Giraudoux, the playwright and novelist responsible for one of my favorites, “The Madwoman of Chaillot.” The linked article, however, was unable to verify it.
I was betting on Will Rogers, who did have his own version: “If you ever injected truth into politics you’d have no politics.” It also sounds like something Darrow might have said.
I was first told that line by a very, very slick senior partner during my interview at my big firm. He never liked me but I got the job (but was passed over five years later for partner in what became known as the Tuesday night massacre when almost my entire class were passed over due to a power struggle between the litigation partners and the transactional partners). Anyway, he attributed the line to Louis G. Mayer of MGM fame. He also embodied the sentiment.
Of course, the counter part to the line, given to me by the senior securities law partner, is, “Bill, you can’t kid a kidder.”
Boy, he wasn’t even CLOSE. Mayer isn’t the Hollywood mogul sometimes credited with the line; it’s Sam Goldwyn
It was 1980. Maybe he said Goldwyn. But trust me, neither sincerity nor accuracy were any of his trademarks. His wife had to correct him when he misidentified his children while introducing them to me and Mrs. OB at a firm picnic.
I suppose that the obverse of an old saying is that it’s a wise father that knows his own child.
I did once hear of a woman telling her divorce lawyer that her husband was unfaithful because she was pretty sure he wasn’t the father of one of her children.
That sounds like something out of Faulkner. Tremendous. Thanks, PM. I’ll use that in my big firm comic novel.
Considering the general intelligence of the average jury, I fear that too many will be swayed by these tactics to ignore damming factual evidence of guilt of defendants.
I take no one seriously who cries on the job. I would consider it unprofessional and a gimmick that is an attempt to distract from the truth.
A fellow student found that out the hard way. She had a habit of tearing up when she couldn’t do something and getting by with it. In her 2nd year exam in graduate school, she burst out crying when asked a difficult question. I am sure they expected to give her sympathy, but an elderly professor asked her to leave the room, then insisted that she be failed and thrown out of graduate school (the penalty for failing). His reasoning was that crying when confronted with a difficult question showed a lack of the required maturity and professionalism for a graduate program.
When I was asked a question I couldn’t answer in that exam (and everyone is asked a question they can’t answer), I stated that I didn’t know how to solve the problem and passed the exam. Understanding that you don’t know the answer and admitting it was part of the test.
Let us not forget the Leopold and Loeb Trial and the weepy judge: https://famous-trials.com/leopoldandloeb/1741-home
On the other hand, “There’s no crying in Baseball!”