Home -> Law Blog Directory -> Corporate Governance Blogs -> The Race to the Bottom

Corporate Governance

: The Race to the Bottom

US v. Nacchio (En Banc): The Government Speaks (In A Churlish Manner)

By J. Robert Brown

The brief takes some shots directly at Herbert Stern, counsel for Defendant, Joe Nacchio.  To support its position, it cites Herbert Stern, lead counsel for the Defendant.  As the brief notes:

• Nacchio?s trial counsel has written that Kumho ?makes it clear that whether to hold a hearing * * * is left to the discretion of the trial judge.? HERBERT J. STERN ET AL., TRYING CASES TO WIN: EVIDENCE, WEAPONS FOR WINNING, Vol. 3 at 223(2004); see id. at 213 (observing that, after Kumho, ?appellate courts * * * will defer to the trial judge?s decision on how to determine reliability (e.g., to hold a hearing)?).
  

In one sense, the strategy could be construed as little more than a dig at Stern, something out of place in a dispassionate legal argument.   On the other hand, the meaning of Kumho is critical to the case and cited frequently by both parties. 

Having said that, it was a churlish thing to do.  Whatever Stern's past views, they carry no weight in the disposition of the legal issue before the Tenth Circuit.  The brief would have been better without the citation.

The entire brief is posted on the DU Corporate Governance web site.

Full post as published by The Race to the Bottom on September 08, 2008 (boomark / email).