"What Actual Lawyers Do"

For reasons related to business, Dr. M’s cousin Michael visited us from New York twice recently in the course of ten days.  Cousin Michael, age 43, is a partner in a major New York law firm, one of whose clients, to give you a sense of the scope we’re talking about, is the City of San Diego.  

That’s right.  Cousin Michael’s law firm represents an entire city.  I wonder where they hold their client meetings.  And where they get enough chairs. 

“Did everybody get a bagel?”

It must be a logistical nightmare.

Cousin Michael’s claim to fame is that, when he worked for the U.S. attorney’s office, he was one of the two-lawyer prosecutorial team that put away Martha Stewart.  This caused some friction in our family (See:  “A Family Torn Asunder” somewhere in the archives), as my daughter Anna’s life-long hero – for her crafts abilities not her insider trading – was the very same Martha Stewart. 

This issue became so tenous that, during the trial, Cousin Michael actually called Anna and apologized, explaining that he had no choice but to prosecute her, because Martha Stewart had committed a transgression that was impossible to ignore:  

She had lied to Cousin Michael. 

Which in fact was what Martha was eventually convicted of.  Not lying to Cousin Michael – Cousin Michael’s name is not specifically in the statute; “You could lie to anyone else, just not him” – but of lying to the prosecutor (in general.)  

(Did Anna ever forgive Cousin Michael?  Well, it’s Anna, and she learned from me.  So, not entirely, no.)

Okay, so on the first visit, during dinner at our house, Cousin Michael makes a comment I do not understand, which is this:

“There is no statute passed by Congress stating that it is illegal to engage in insider trading.”

Little explosions immediately go off in my head.  I had thought Martha Stewart had gone to the slammer for lying to the prosecutor, concerning the issue of engaging in insider trading.  But if there is, in fact, no statute stating it is illegal to engage in insider trading, how do you then go to the slammer for lying about engaging in an activity that is itself not illegal?  If a person can be convicted for lying about something that itself is not illegal, wouldn’t all of us be in jail?

“Did you leave the top of the peanut butter jar?”

“No.”

Bang! (with the gavel) 

“Six months!”

During his first visit, Cousin Michael carefully explained why Martha Stewart, despite lying about an activity that is not illegal, was nonetheless required to go up the river (where she sweated out six months knitting a poncho.) 

And I did not understand his answer.

My not understanding was revelatory to me.   My “road not taken” is “lawyer”, and a real life lawyer had explained a simple but critical distinction concerning this issue, a distinction that would send Martha Stewart to the (knitting) calaboose for lying about an activity which is not itself a crime. 

And I just didn’t get it.

I mean, this is what lawyers do for a living.  If I couldn’t get my head around the reasoning, then forget about, “I couldn’t be a lawyer, because I could not handle the responsibility of my clients’ relying on me”, I couldn’t be a lawyer, because, despite my (rather elevated) regard for my intellectual capacities, I was simply not smart enough.

(We pause for a moment for my [lawyer] brother’s line:  “The job of the lawyer is to make distinctions between identical situations.”  That’s a funny joke.  And it may actually be true.  But more likely what’s true is that the distinctions, though not exactly identical, are extremely difficult to distinguish.)

The result of Cousin Michael’s explanation – which I was unable to understand – made me unsure that, had I become a lawyer, I would have possessed the patience, precision, and the intellectual firepower to decipher such distinctions.  Also, and possibly more importantly, during my preparation and subsequent argument in front of human beings, I am not entirely certain I would be able to explain these microscopic distinctions between exceedingly similar situations

With a straight face.

Because – were there nothing important weighing in the balance –

It’s funny.

“Mr. Pomerantz, are you saying these situations are different?”

“I am, Your Honor.”

“Then why are you giggling?”

Okay.  I am not going to be a lawyer, and I’ve discovered exciting new reasons why it would never have worked out.  Still, I need to follow up with Cousin Michael, one, to clarify the mystery of incarcerating a woman for lying about something that is not against the law, but two, and more importantly, because I needed, for my own satisfaction, to see if, after an additional repetition, I could understand the explanation.

Cousin Michael’s second visit provided the opportunity.  Before dinner, I spirited him away to a private area of the house, and I asked him to tell me again – slowly – how a person can go to jail for lying about doing something that is statutorily not a crime.

Cousin Michael’s explanation was, by non-lawyerly standards, not simple, but it was followable.  Which was a welcome boost to my intellectual insecurities.  (Still, this was just one “distinctions with hardly any difference whatsoever.”  And as a lawyer, these issues would come flying at you day and night.)  

Cousin Michael’s answer?  (A shortened version):  Although there is no statute prohibiting insider trading, there is a statute prohibiting “fraud and deceit.”  So if the insider trading situation rises to the “fraud and deceit” standard – as they say in Law & Order – Chung!  Chung!  (Or whatever we decided that sound is.)

Sometimes, it was explained to me, insider trading is seen to meet the level of “fraud and deceit”, and sometimes, it isn’t.  The nature of that distinction, at least from an outsider’s perspective, is screamingly imperceptible; in the end, it is up to the judge to decide.  (After the fact.  Which means, you might believe – and have been advised by your attorney – that what you were doing was acceptable, only to find out later that it wasn’t.  What a hoot, huh?)

As we headed in to dinner, Cousin Michael volunteered that what he was involved in is at times a “Through The Looking Glass” experience.  Meaning, the decisions he must accept can be arbitrarily inconsistent from case to case.  When I followed up on this after dinner, Cousin Michael seemed to reverse himself, asserting that an answer (for example, when advising his client) can always be determined, depending on the specific facts of the case.

To me, this sounded like a guy unwilling to admit that, at least sometimes, what he did for his lavishly remunerated living, did not entirely make sense.

This could, however, be the self-serving interpretation of a man who decided to do something else.   

Show business?  That makes sense,

All the time.