Winning is completely different than not losing.   Winning, which is creating something positive, is substantially different than not losing, which is merely avoiding a negative.  Winning is considerably harder to do than simply not losing. Winning requires a completely different vision. Winning is, like these articles, sui generis…a thing unto itself.

        We often proclaim that we wish to “win,” to be “victorious” in a given transaction, but almost as often we make it virtually impossible for us to achieve that win or that victory.  Indeed, it appears that there are more of us who undermine ourselves than those of us who allow ourselves to win.  As a collective whole, we seem unwilling to actually win but instead appear to be content with just not losing.

        I do not write as any sort of a therapist, psychologist or other similar kind of professional for I am not any of that kind of professional.  I am not here to analyze the reasons for the behavior.  As the article indicates, those issues are beyond the scope of this article and are thus not the subject of this article.   Instead, I write from the point of view of an experienced attorney and business person and as an observer of people.  This article is
about discussing the issues in the hope that, by doing so, it can enable all of us to make better deals.  To the extent that that benefits that which we call “society” as a whole, that is also acceptable. [Read “Capitalism” and “The Law”]

The Need for Vision

        Vision is a significant part of winning, of achieving that which we proclaim we want to achieve.  If we cannot vision winning, it is not clear how we can win.

        I have already written a great deal about the need for vision. [Read “What Business Are You In?,” “Set To Fail” and “The Need for Vision”]  I am, however, slowly, if reluctantly, coming to see that having vision may be something that cannot be taught and we either have it or we do not.    What I believe can be taught, however, is the objective reality that if we know we do not know something, that we at least have the internal ability to recognize that and take appropriate legal and business steps to to correct that situation.  What I believe can be taught is that if a transaction seems complex to us, it probably is and thus may very well be beyond our capacity to handle on our own and that having vision includes knowing when we are in over our head and reaching out for help.

        However, what often blocks this recognition, blocks reaching out, is stubbornly believing we know more than we actually do.  Or refusing to acknowledge what we do not know.  I believe this is the egotism that comes, ironically enough, from knowing we do not know.  That egotism prevents us from acknowledging this because we may see this lack of knowledge as some form of shortcoming.  (As indicated, the reasons for this vision of ourselves are beyond the scope of this article.)   We all do some things very well and other things not so well.   But instead of recognizing this objective reality, we may personalize and see those things that we do not do so well as a “failing.”  As a result, we refuse to acknowledge that “failing” and thus we try to be all things--generally to our detriment, at least when it comes to the law and business.   [Read “The Do It Yourself Publishing Lawyer” and “Dignity for Designers”].

        This is probably the basis for the hackneyed, gender-biased cliché that “real” men refuse to seek driving directions. “Macho” men cannot be seen as needing help.

        Within the context of business and especially intellectual property, some of us do not even give ourselves a chance to be victorious, preferring instead to set ourselves up so that the only possible outcome of a given transaction is for us to lose.  No matter what the outcome.  If our project is not successful, we lose.  If our project is successful and we have inappropriate, unsatisfactory or legally deficient agreements or have not set our legal rights up properly and others make the money that we should have, we lose.  We thus approach our business lives so as to make winning virtually impossible.  We undermine ourselves from a legal and business standpoint. [Read as but a few examples “The Fundamental Principle Under United States Copyright Law,” “What Business Are You In?,” and “Private Laws”]  We fail to preserve our dignity in the deal. [Read “Dignity in the Deal”]

        And then of course what happens is that if that “do it yourself” approach turns out to be ill-advised and the other party makes the money and the do it yourselfer does not, that reinforces the do it yourselfer’s feeling that they have “failed.”  This then often breeds a further adamant refusal to reach out for help because to do so might be seen as an admission of inadequacy.  To return to the hackneyed, gender-biased cliché, the more lost the masculine driver becomes, the more staunch his refusal to seek assistance becomes.

        If victory is actually our goal, then it would seem appropriate for us to try to be victorious in a given transaction.   But for many of us, trying becomes the be-all-and-end-all.  Trying is the end goal.  Not succeeding.  Not winning.  Just trying. (Again, the reasons we continue to try and continue to “fail” are also beyond the scope of this article.)

        The only advantage to this “foregone conclusion” approach is that it is a foregone conclusion.  At least we can wake up each day knowing that we have a road map for the day, which is to not win.  And when we do not win at least we can say to ourselves: “See I told you so!” And then we can more easily relate to the others similarly situated.

Society is a joint-stock company, in which the members agree, for the better securing of his bread to each shareholder, to surrender the liberty and culture of the eater.  The virtue in most request is conformity.  Self-reliance is its aversion. It loves not realities and creators, but names and customs. [Emerson, Ralph Waldo, “Self-Reliance” 1841]
        Comforting?  Perhaps.  Easy?  Perhaps.  Better that than to change.  Changing,…well that is a different matter.

Fear of Winning

        Moreover, what is peculiar to me is how the idea of winning, at least in the business, intellectual property law context, has become so perverted in many of our minds so as to be-- what shall I say?—politically or otherwise incorrect.  Despite the absolutely clear and probably instinctive goal of protecting our self-interest that most of us in business seem to state as our goal, in truth some of us seem to be afraid to win.  We appear to have substantial conflict about whether winning is a good thing, somehow believing that to win is, in some ill-defined manner, wrong.  Even though we may admire or secretly envy those who have “won,” we appear to decry the concept of winning, perhaps because we secretly envy those who have won.  Disparaging winners appears to be a national past time second only, apparently, to consuming high fat foods.

        Often as not, it seems easier to envy, decry and disparage than to change.  The first requires little talent and comes with plenty of company, as Emerson indicates above.  The second, changing, or in this context, winning,… well that is a different matter.  That requires a much more “go it alone” attitude, an approach that requires us to stop being part of the crowd.  That is, for many, a scary thought.

It is easy enough for a firm man who knows the world to brook the rage of the cultivated classes. Their rage is decorous and prudent, for they are timid as being very vulnerable themselves. [Emerson, “Self-Reliance” Note: the gender bias in this quote comes from Emerson, writing in 1841.  The idea applies equally to women.]
        Thus, clearly related to the lack of vision and the reasons for such lack of vision, is the fear of winning.  And the reason I call this a fear of winning is because if we actually won, if we actually were victorious, successful etc., it might require us to let go of every definition we have ever had of ourselves or which were imposed upon us by our view of our past.  (As above, the reasons for these views are also beyond the scope of this article.)  Changing those definitions or those views would be very scary indeed and it is that fear of such change that keeps us stuck.   If we cannot see ourselves as not winners, as not being victorious, if we cannot see ourselves as constantly envying, decrying and disparaging, well what can we see ourselves as?

        So for many of us it is just easier and less fearful to stay within what we believe ourselves to be rather than open up to the fear of venturing out into the unknown areas of who we are.  Or might become.

        Thus the fear of winning is integrally tied to the need for vision.  We often choose not to see with vision because we are afraid to win.

        We are not victims of winning…any more than we are victims of losing.

        Winning means getting out of our own way.

Copyright © 2003 Ivan Hoffman.  All Rights Reserved.


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by we.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship.


No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.



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