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.