TO WIT: AT A LOSS
I knew that sooner or later this unholy winning streak of mine had to end and as usual, I was right. My first defeat in quite some time came recently in the form of an opinion from Judge, delivered by the U.S. Postal Service in just the sort of plain brown wrapper that befit its contents.
It was a case that I shouldn’t have lost, but which one isn’t? To make matters worse, it was a custody trial, and that made the losing especially difficult. Divorce cases are tough, but money, property and spouses can be replaced. The custody part is different. When you lose a custody case, you lose children, and they can be so very hard to find again. I took it badly, and I fully intended to go home and beat the cat.
Opposing counsel was oh so gracious. “You did a fine job for your client,” he said, choosing just the phrase I’ve used for years to rub salt in the wounds of my defeated foes. (Note that I refer to my adversary as “opposing counsel.” Had I prevailed, he would have been “distinguished colleague.” Tough luck, pal. With a little less effort, you could have been distinguished.)
Judge was also gracious. I had made a monumental effort to depict my client as a tender and loving father, and despite a minor character flaw that had reduced his marital vows to a game of chance, he was. “After Plaintiff’s case, I thought your client was a second-rate sleaze,” Judge advised at trial’s end, “but after you put your case in, I realized that to the contrary, he was first-rate. Nice job.”
It was a nice job, the best I knew how to do, and still I had lost. And to make matters worse, I really thought I had the better case, if only by a narrow margin. I hurt for my client, the father, and I hurt for the kids, but I also hurt for me. You see, I really hadn’t lost any sort of case for quite some time, and I was just plain out of practice.
Oh I know, you are surprised that losing takes any practice at all, but then it comes so naturally to you. For me however, the undefeated chess champion of my junior high, the notion of losing had always been anathema. From early on, it was simply not part of my plans.
The jury in my first trial was apparently not privy to my plans. “We find for the Defendant and against the Plaintiff,” the jury foreman announced, “and we do so with great delight.” Ooh, the last part wasn’t necessary.
My plaintiff was a guest passenger in an automobile rear-ended at a stop sign. How could you lose a case like that?
“Perhaps the result might have been different,” offered my partner, “if your client had waited until after impact before she jumped out of the car screaming ‘whiplash.’” It was the first time he gave evidence of the candor that eventually led to the demise of our firm.
Like Houdini, I was not ready for the blow. For weeks thereafter, I couldn’t eat, I couldn’t sleep, I even stopped dreaming of wrongful deaths. It took the sage advice of the kindly old lawyer who had taken me under his wing to snap me out it.
“You’re a bigger jerk than I thought,” he counseled. “Lookit, this is not chess. In law, you can be smarter, stronger, faster, you can make every right move, just like in the book, and it may not get you the win. Sometimes you just plain lose.”
I cannot tell you how my intellect rebelled against such heresy. I, the me who was raised on the Lone Ranger and Superman, the me who needed right to make might each time out, the me who wanted happy endings, I was crushed. Did Perry Mason know this? Did Hugo Black? Arggh!
For a long while thereafter, I couldn’t come to terms with it. Needing a reason to explain defeat, I blamed myself. “Not smart enough,” I chastised, “work harder,” I implored, “wear a different suit,” I admonished, all to no avail. I still lost cases, and with each one, some small measure of my self-esteem. Soon I had none left, and most of my career lay yet ahead.
In time, I came to understand the system that occupies our energies. It’s a system full of judges, juries and other lawyers, and each has their own divine capacity to get in my way. It isn’t the system I had hoped for, but I’ve made my peace with it. With so many chefs, there is certain randomness to the stew, and if some of my victories are not always the result of my efforts, at least some of the losses are not always the result of my shortcomings.
Every once in a while, a very great while, I can make use of the agony of a defeat, just to regain my perspective. I expect there are great many lawyers who, like me, can use a loss from time to time to remind them of the nature of this business, and I am delighted to oblige them. With very little effort, they too can become distinguished, and in the process, they can make my cat so very happy.
Copyright 1986, S. Sponte, Esq.