Monday, November 21, 2016

Winning isn't everything; sometimes it's not even winning

According to Wikipedia, Vince Lombardi did not coin the phrase, "Winning isn't everything; it's the only thing." Wikipedia says Coach Lombardi borrowed it from a former UCLA football coach, Henry Russell ("Red") Sanders.

Regardless, Lombardi did use the saying, and several similar ones like, "If winning isn't everything, why do they keep score?" or "Winners never quit and quitters never win."

Vince Lombardi was a great football coach... but he might not have been nearly as successful as a litigator.

Lawyers don't necessarily think of our role in litigation in such stark, 1-0 terms. We think that our job is to provide quality representation, providing the best possible presentation of the client's case. This may involve a knowledgeable exposition of the applicable law; it may involve identifying the most persuasive way of presenting testimony and exhibits -- and it probably will involve both. Lawyers are famous, or infamous, for telling clients that we cannot "guarantee" results. What we mean by this is that, though we may do our job, as we understand it, in the best way possible, we can still lose.

Clients, however, are drawn to the Vince Lombardi model. Attorneys are engaged to win, not to lose. If we win, we've done an adequate job; if we lose, we're bums.

At least half the lawyers you see coming out of the Daley Center on any given day are, therefore, just a bunch of bums.

Fortunately, there is some positive correlation between providing quality representation and success in any case. Especially when the client has realistic expectations of what constitutes a "win."

Sophisticated clients, such as many large corporations and insurance companies, realize that, no matter what resources are devoted to any case, and no matter how knowledgeable their lawyers are or how capably their lawyers perform, their lawyers can not achieve a verdict in every case. But the sophisticated client still might "win."

And this is where Coach Lombardi might have come down with a migraine: In a given case a "win" might mean holding damages down below a certain threshold, for example, or simply minimizing bad publicity. For individual litigants, a "win" may be keeping the house (or gaining enough time to sell the house, getting time to pay off a debt, or avoiding the loss of joint custody). In criminal cases, a "win" may involve getting probation instead of jail time or getting a reduced sentence.

But understanding that clients are less concerned about the quality of our efforts and the logic of our arguments than about "winning" gives us lawyers the opportunity to eliminate misunderstandings at an early stage of a representation: What can a win look like in this case? Is a judgment in the client's favor likely? Or should a "win" in this case be seen as something different?

Compromise which prevents further disputes down the road may be far more in the client's interests than a "win" in a given case. Illinois lawyers are licensed to practice as attorneys and counselors at law.

Clients, when your lawyer tries to explain alternatives to trial, or recommends settlement, or explains to you the weaknesses of your case, or recommends a less-than-scorched-earth strategy, your lawyer is not necessarily "appeasing" your adversary or failing to 'represent or support' you.

Yes, clients, there are some hyper-aggressive lawyers out there who will drain your wallet and then suddenly turn pacifist. There are those who will talk a good fight and then 'roll over' at the first sign of resistance. There are also some who will pursue every motion, every remedy, and every argument, some who equate compromise with capitulation, some who will shout from the rooftops, "millions for defense, not one penny for tribute!" -- until your millions, or thousands, more likely, are gone. Then they slink away -- and withdraw from your case. What good has that done you?

There has to be a degree of trust between lawyer and client. The lawyer must be worthy of your trust. And you, client, must not be too quick to waver. But be clear in what you expect: If you want every weapon launched and no argument left unargued, don't beef about the bill. Conversely, after you've cried poor-mouth, and sent your fee payments in on tear-stained checks or, worse, fallen behind in your account, don't get upset when your lawyer starts suggesting compromises and stops being quite so aggressive.