Monday, April 16, 2012

The Long Goodbye

Coming up with a last line is not easy. A good conclusion is both a summary and a revelation. Think of Thoreau's Walden: "There is more day to dawn. The sun is but a morning star." Or The Great Gatsby: "So we beat on, boats against the current, borne back ceaselessly into the past." Those exit lines are beautiful in themselves. They shine. They stay with us.

More often, a last line acquires force through context. Examples include 1984 ("He loved Big Brother"), The Invisible Man ("Who knows but that, on the lower frequencies, I speak for you"), and Lolita ("And this is the only immortality you and I may share, my Lolita").

A lot of people think the greatest last line in cinematic history is from Some Like it Hot. The line is simply, "Nobody's perfect." It is what leads up to that line that makes it shocking and hilarious. Some people prefer the ending of The Maltese Falcon: "The stuff that dreams are made of." But in fact the last line in that film is the cop's puzzled response: "Huh?" Not so inspiring. Our own favorite movie ending is from Richard Linklater's Before Sunset: "Baby, you are gonna miss that plane". "I know." Again, it's all in the context. And it doesn't hurt to have a sultry Julie Delpy uttering the line. Most great movie endings leave one exhilarated or numb because of the way they comment on, or undercut, everything that happened before it. "Louie, I think this is the beginning of a beautiful friendship." "I was cured all right." "Forget it Jake, it's Chinatown."

Television has a mixed history of finales. They range from wonderful (Newhart and Six Feet Under) to weird (St. Elsewhere and The Sopranos) to wretched (Seinfeld and Cheers). The Fugitive was an early example of a show that wrapped things up successfully. M*A*S*H ended on a surprisingly maudlin note, but that did not prevent it from commanding a record-setting audience. The Mary Tyler Moore show ended in a group hug, with the cast members displaying their reluctance to part ways. But can anyone out there explain the ending to The X Files? And how could Roseanne, which had always been a sharply-written show about blue collar reality, descend into an ending that managed to be surreal, pompous, and stupid? The better the show is, the more betrayed we feel when the last episode disappoints. That disappointment ends up coloring our perception of the whole series.

Last lines matter in litigation. Trial lawyers exploit the rules of primacy and recency. Get the audience's attention up front and zing them at the end. As a trial-line Assistant U.S. Attorney, we sometimes lifted a closing by the DA (Michael Moriarty, not Sam Waterston) in Law & Order: "I represent the people. It's been my job to show you the defendant's crimes. Now it's your job to do justice". (Now comes "the Clang" -- the chung-chung notes that sound vaguely like a judge's gavel. Richard Belzer, one of the actors in the series, says the sound is actually the producer's cash register ringing.)

Once we tried out a clever rebuttal passionately daring the jury to acquit the defendant if they believed his crazy story. Guess what? They did. We were shocked and dismayed at this result. How could a jury buy the defendant's absurd tale that he had accidentally found 15 social security checks in the slot of a dumpster? Then, two years later, we investigated a mail-theft ring, where the villains traipsed through East LA neighborhoods on the 1st and 15th of the month pilfering government checks. After being purloined from mailboxes, the checks were then hidden in drop points. One of those drop points was -- wait for it -- a dumpster. In retrospect, we have never been so happy to have lost a case.

It is harder as a product liability defense lawyer to strike gold with the last word. The reason for that is self-evident: it is the plaintiff who gets the last word. Even if the defense lawyer comes up with a nice riff, the plaintiff lawyer can turn it around. One common motif is to talk about the verdict and the truth. The defense lawyer can end by telling the jury that the word "verdict" means to speak the truth. 'And the truth is that the plaintiff never showed that the product was defective. The truth is that the plaintiff never showed a safer alternative. The truth is that the plaintiff never showed that the product, rather than an alternative cause, played any role in harming the plaintiff.' Etc. Great. Then the plaintiff lawyer can rush up to the lectern and say, 'You want to talk about the truth? The truth is that the plaintiff enjoyed a happy, healthy life before using this product. The truth is that it would have been simple and easy for the defendant to tell the truth about the product's risks.' Etc. Cue the Clang. The plaintiff can completely appropriate the emotional force of the defense peroration. Often the defense closing contains a pathetic plea to the jury along the lines of, 'The plaintiff gets the last word because she bears the burden of proof. I won't have the chance to come up here and answer the plaintiff's arguments, but you know that I would have answers to each and every one of them. I am asking you to think about what my responses would be.' Good luck with that.

Last lines are important in written arguments, too. Our eyes burn when we read the rote conclusion, "For the foregoing reasons, the defendant's motion should be granted." Really? How colorless and perfunctory can you get? Why squander a final chance to remind the judge of your key argument? It is not especially hard to say something like, "Because the plaintiff's failure-to-warn claim is completely foreclosed by the Buckman decision, this Court should grant summary judgment." That conclusion does not exactly contain poetry, but at least it's an argument rather than an empty gesture.

We were hoping to come up with sparkling last lines from judicial opinions. But it turns out that judges (even Posner) do not write like Thoreau or Fitzgerald. Nor should they, we suppose. Let's be honest: the most important, riveting words we look for at the end of a judge's decision are GRANTED, DENIED, AFFIRMED, or REVERSED.

When we talk about final lines, we end up talking about farewells. If last lines are hard, farewells are the hardest. If you made a film of your life, many of the most poignant scenes would be of farewells: the kiss at the threshold of the jetway (at least before airport security tightened up and squashed all the romance out of departures); leaving a family gathering and spotting, just as you were about to drive off, a five-year-old pressing his face against the window and forlornly waving bye-bye; and sitting in a hospital room and struggling to say something meaningful but not awkward.

This Summer, on some too-far-away college campus, we will be saying goodbye to the Drug and Device Law Daughter. We can hardly write that sentence without blurry eyes. This Monday column has previously alluded to the Drug and Device Law Daughter's proclivity for challenging and vexing her father, but we will miss her far beyond our poor power of expression. (By the way, we recognize that there is something presumptious in referring to the Drug and Device Law Daughter. Several of us who work on this blog have daughters. But permit us one last time.) The DDLD hasn't been at all shy about criticizing things we have said and done. An ongoing source of complaint is her name, especially her middle name. She objects that we assigned her the name of a frivolous male character from a 90's sitcom. Not so. We were thinking of the last name of our favorite 20th Century American (at least from Los Angeles, where the DDLD was born) writer. Raymond Chandler wrote some of the best last pages in American literature. Check out the ending of The Big Sleep, for example. You might not know who actually committed the murder, but you almost do not care. Some higher truth is at stake. In The Long Goodbye, Chandler writes that to say goodbye is to die a little.

This is the last Monday post by this particular writer. It's been a pleasure. Some of you took issue with the columns, attacking moldy or biased thinking. Sometimes you were right. That's okay. Nobody's perfect.

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