The March of Time

As we all know, when making a presentation, you really have to know your audience. That applies to comedians, actors, musicians, salespeople and lawyers. Especially lawyers. It’s like the opening lines of The Music Man, “You gotta know the territory”.

I’m a lawyer, the kind of lawyer who goes to Court and tries to get people out of trouble, or at least minimizes the damage caused by bad judgment or worse. A while ago I represented a professional – let’s call him Steve – who had run into significant tax problems. So significant in fact, that the Internal Revenue Service elicited the assistance of the Department of Justice to prosecute him and seek his incarceration. Thus, the gentleman’s arrival on my doorstep. Try as I might, the inevitable occurred. Given the dimensions of the cascade of evidence, a plea bargain had to be constructed. Unfortunately, given the amount of unpaid taxes, the construction was directed mostly by the United States Attorney’s Office. They played the music. We danced.

There came a time when Steve had to appear before a federal judge for sentencing. These events are never happy occasions. At best the final result often falls into the “not bad, considering” category. I was, however, prepared to put on the best face possible for my client.

I entered Court having reviewed the Presentence Report, the Government’s Sentencing Memorandum, and the memo that I had manuscripted with pain and little ammunition. (As Red Smith of the former The New York Times sport section once said, “writing is easy. You just open a vein and bleed.” There had been a lot of bleeding but not too much writing.)

The crux of Steve’s story was that he was born with a significant health problem which, while he was quite young, required major surgery. The health problem was resolved satisfactorily but the emotional fallout was significant. Although physically healthy, Steve was left with a large surgical scar which he saw as a badge of inferiority. It left an abiding insecurity which caused him to be withdrawn and isolated. He was terribly self-conscious. He had three siblings, all accomplished athletes. They worked with him. They got him, ultimately, to a point in high school where his insecurities were replaced by a growing sense of confidence.

Steve went on to complete high school, college and then law school. Once graduated he began a successful solo practice. He married a fellow lawyer, opened his own practice and did quite well. He desperately wanted and tried to have a family. But then he received a devastating blow: he was sterile. He was completely shattered. The insecurities returned. His life was changed. He fell apart. He divorced. He effectively abandoned his practice and sought relief in a bottle and illegal substances. He gambled. He ignored his financial obligations, so much so that it created a huge tax obligation which he ignored and evaded for years. Hence, the prosecution, the guilty plea and the sentencing.

I prepared Steve the sentencing. We reviewed the Presentence Report; and the Sentencing memos from the Government and the Federal Sentencing Guidelines which called for prison. The day for sentencing arrived.

We appeared in Court. I hoped to persuade the judge to impose a sentence lower than the Guidelines. I spoke on behalf of my client. He had an explanation for his actions which, hopefully, when placed in context, would cause the judge to impose a below-guideline sentence.

The judge inquired about our explanation. I told Steve’s story with, I must say, a rather nice touch. He was plagued, I said, by a fragile emotional foundation which was linked to his early medical problems. And that was compounded by the devastating revelation that he could not have the family he desperately wanted. He was shattered. His life spun out of control; I tried to explain. I said that Steve was never able to fully find the security and self-assurance that dealing with life’s problems required. He could never, I said, look himself in the mirror and see a person who was not flawed. That led to his self-destructive behavior and, ultimately, to this Court.

I referred to the movie, “All That Jazz”. It was about Bob Fosse, the Broadway choreographer and director who, plagued by insecurity, struggled to find self-assurance with each performance. I referred to the scenes where Fosse would look in the mirror before each performance and try to convince himself that he was successful and talented. My client, I said, was never able to have that experience, to see that image, because he was plagued by these awful insecurities.

I thought it was a pretty compelling image.

The judge listened. The sentence was imposed, a little lower than the Guidelines but not all I’d hoped for. Paperwork details were attended to. Court was recessed.

As I returned to counsel table, I was approached by my adversary, a gentlemanly federal prosecutor “Willie”, he said, “You should know that All That Jazz was produced in 1979. The judge was born in 1984”.

And there it was: I had failed to know my audience. While the image I cited might have been persuasive to an older judge who’d seen the movie, it was never going to succeed with a judge born a generation after the movie’s release and who had never seen it.

I had forgotten the basics and became a victim of the march of time.