Last night we watched the Academy Awards presentations. We’re never sure why we do this. Why do we care about the film preferences of a notoriously unreliable, insular group whom you might meet at Nate n’ Al’s, but never at Home Depot? Then again, our whole business is built around other peoples’ opinions — judges, juries, clients. (No comment on their reliability or insularity.) We confess to being utterly riveted by the screen shot of the nominees at the moment the winner is announced. It’s the image of the losers that is most arresting — that flash of disappointment shifting seamlessly into a strained smile. We’re not supposed to think of winners and losers when it comes to the Oscars. In the old days, the presenters would tear open the envelope and say “And the winner is ….” Now they say, “And the Oscar goes to….” The artist will consider the idea of picking winners and losers to be crass. That was the reason given by George C. Scott for declining his Best Actor award for Patton.
We often hear that the real honor is just being nominated. That sounds like a mealy-mouthed rationalization, but it’s true. Nominations recognize merit. Who actually wins can seem a matter of happenstance and caprice. To be sure, we’re not saying the nominations always get it right. For instance, how is it that Gary Oldman has never been nominated until this year? There’s also the embarrassing example of Hoop Dreams, which might have been the best film in 1994, but it wasn’t even nominated as Best Documentary. One theory is that, at almost three hours, it was just too long for the voters (median age 62). They needed bathroom breaks.
But what really stands out over the years are winners and losers that make no sense. When you remember that Ordinary People beat out Raging Bull for Best Picture, that Oliver! beat 2001: A Space Odyssey, that How Green Was My Valley beat Citizen Kane, that the same year Hoop Dreams got stiffed Forrest Gump beat Pulp Fiction, and that Hitchcock never won as Best Director, you merely shake your head. Forget about it; it’s Chinatown. (A well-deserved winner.)
One of the nominated pictures this year was Moneyball, which is about how the general manager of the Oakland A’s adopted new analytical methods and metrics to gain a comparative advantage and win more games than better financed baseball clubs. But it turns out that the comparative advantage could only get the team into the playoffs. Once it all came down to short series, anything could — and did — happen. Maybe Derek Jeter would make an unreal defensive play and snuff out a rally. Ultimately, winning and losing has more of a freak-factor than we want to acknowledge. We Phillies fans are pretty certain we were rooting for the best club in the major leagues the last two years, but we ended up running into so-so teams that happened to get hot at exactly the right time. We’re not sure what to think about the Buffalo Bills. No other team made it to four straight Super Bowls. It is an incredible accomplishment. But to lose all four of them makes you wonder whether it was bad luck (a missed field goal or missing helmet), some fatal deficiency, or, as suggested in an episode of The X-Files, the result of a vast conspiracy headed by the Cigarette Smoking Man.
We’re not Citizen Kane or the Buffalo Bills, but we’re happy that this blog consistently gets nice nominations for being the best at what it does. We’ve never played the game of trolling for the popular votes needed to crown the “winner.” No Weinstein Company Oscar campaign for us. Some blogs do seem to do that, and that’s fine. Honestly, it’s an honor just to be nominated. As Justice Hugo Black said, “It is the paradox of life that the way to miss pleasure is to seek it first.”
But in our day jobs as litigators, we care about winning. Our clients certainly care. We are the help. Good lawyering definitely makes a difference. Still, nothing guarantees winning. Some of the very best trial lawyers out there have experienced horrendous losses. Stuff happens, and not just at midnight in Paris. Every day, courtrooms set the scene for stealth jurors, batty rulings, and unforeseeable witness implosions that steal defeat from the jaws of victory. Sometimes, too, the facts are simply difficult. For whatever reason, something weird and unexpected is bound to show up at trial, like those dinosaurs in Tree of Life.
We know an in-house counsel who likes to ask outside lawyers to name their biggest loss. His theory — and it makes a lot of sense — is that a truly good lawyer has been given some gruesomely tough cases. It’s simply not possible to win them all. When a lawyer brags about an unblemished record, we tend to react with either skepticism or a suspicion that the lawyer shies away from, or isn’t trusted with, the hardest cases.
When we worked at the U.S. Attorney’s office, we frequently sought advice from the head of the Criminal Division. He had been there for decades and was a brilliant curmudgeon. Real old school. A war horse. On the wall behind his desk was a poster of Winston Churchill pointing at you, with the words “Deserve Victory” writ large across the bottom. It was from World War II, but it was the best possible creed for what we were doing on a day-to-day basis. It’s been 20 years since we first stared at that poster, and now we have our own copy of it. We continue to find it inspiring. Winning or losing involves some things you can control and some things you can’t. Immerse yourself in the facts, be diligent and creative in arguing the law, and forge an emotional connection with the audience. If need be, get extremely loud and incredibly close with a witness. You might not win, and you certainly won’t be handed an Oscar, but you will deserve victory.
(By the way, we thought last night that The Descendants deserved to win, and not just because it involved the Rule Against Perpetuities.)