Since Lombardi's philosophy was, "Winning is everything." Lou Holtz used to quip, "Winning isn't everything at Notre Dame, but it ranks right up there with heaven."
As lawyers, winning is of paramount importance to us. Popular culture reinforces the belief that winning is the badge of a good lawyer. Our clients demand it. The lay public, and some of us, see winning as a jury's verdict or a judge's decision in our favor.
Some of us become so focused and obsessed with winning, defined as a favorable judge or jury decision, that we rationalize using almost any means to achieve it. We convince ourselves that the end justifies the means.
Although it does not follow that we have to be uncivil to win, it is obvious that this competition to win does breed and contribute to incivility among the profession. Those lawyers who do not know how to win believe that if they can somehow gain a technical advantage they will have a better chance of winning. As a result, they engage in what some of us refer to as "ankle grabbing" conduct. They refuse to consent to routine extensions of time. They send out deposition notices without attempting to mutually schedule depositions with the opposing party. They object to every discovery request regardless of whether the objection is valid and requires time-consuming and unproductive motions to compel. They engage in ad hominem attacks on opposing counsel. They file for punitive damages even though they know there is no justification for such damages. They move to take the deposition of the CEO, even though they know the CEO has no relevant information.
The truly good lawyers, however, know how to win, and they do not necessarily define winning as achieving a verdict or judgment in favor of their clients. To the true lawyer, winning is successfully carrying out the professional duties and responsibilities of a lawyer.
These responsibilities are defined by the Preamble to our Rules of Professional Conduct, which, among other things, prescribes:
A lawyer is a representative of clients, an officer of the legal system and public citizen having special responsibility for the quality of justice.
As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.
In addition, our code instructs us that a lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. If we observe these simple rules, if we advocate our clients' positions in a zealous but ethical way, if we render soud advice based on the facts and law, we will win regardless of what the judge or jury's decision may be.
While I was recently attending the annual meeting of the State Bar of Texas, Mark Perlmutter, a lawyer practicing in Austin, Texas, but with roots in St. Louis, gave me a copy of his book, "Why Lawyers Lie & Engage in Other Repugnant Behavior."
In the book Mr. Perlmutter includes a letter which he routinely sends to opposing attorneys. It provides:
Dear ________________ and Counsel:
When this case is over, I hope that all parties and lawyers will be able to say that, "Win, lose or settle, we were well served by the justice system." To that end, I pledge you that I will do my best to adhere to the Texas Lawyers Creed, and particularly its essence, which is to promote ethical, responsible, and cost-effective representation with civility and integrity.
We will work with you to exchange sufficient information to fairly evaluate the case, to make good-faith efforts to settle, and, if we fail to settle, to afford you a fair opportunity to present the merits of your case. We intend to (1) treat this matter as a problem to be resolved rather than as just a case to be tried, which will save money and time for both sides; and (2) avoid playing "gotcha" and thereby reduce the chances of an arbitrary result based on "a technicality."
If you would like to evidence your support of these principles, you and your client may sign this letter in the space provided. Our intent is not to enter into binding agreement. This letter is rather an expression by each party of our serious and good-faith desire to cooperatively achieve solutions to problems and resolution of claims and disputes in a manner that will avoid engaging in unproductive conflict.
Sincerely,
Mark L. Perlmutter & Client
AGREED:
Attorney or Other Representative & Client
Mr. Perlmutter's letter is a succinct statement of winning, and he attempts through his letter to make sure that both parties define winning the same way.
Wouldn't it be great if all of us understood what winning was all about, and that all of us knew how to win. Then, such letters would be unnecessary.