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.

Creating real confidence in the legal system begins with admitting its limitations

We urge our clients to have confidence in the legal system.

But do we lawyers share that confidence?

I don't pretend to speak for all lawyers, or even any group. But I can say that my most honest answer is yes... and no.

First, the 'yes' part.

I was already practicing law when Operation Greylord exploded into the headlines in the mid-1980s. For those too young to remember, 15 Cook County judges were convicted as a result of this extensive FBI undercover investigation. Greylord trials showed that cases were 'fixed' by willing judges, aided by court personnel, including clerks and deputy sheriffs as 'bagmen,' taking payoffs from corrupt lawyers.

To be honest, I miss the days when lawyers could more or less freely wander the corridors behind the courtrooms, visiting chambers, schmoozing. I really didn't know any judges then; most of my acquaintances were law clerks -- you know, kids my age. But just in visiting with the clerks I could learn a little law and, I suppose, feel more a part of the greater legal system.

Now, of course, chambers are mini-fortresses, the back corridors more moats now than highways. With limited exceptions---usually scheduled---a lawyer's penetration of the inner sanctum these days is typically viewed with suspicion, if not alarm, and generally supervised.

But the trade-off is that our judges today are above reproach. Greylord could have shattered confidence in our judicial system; instead, it had a cleansing effect. We lament the lack of wider public participation in the judicial election process, but there is indisputably more public scrutiny of judicial hopefuls now than there was a generation ago. There is also greater involvement and attention from the bar generally. The Alliance of Bar Associations for Judicial Screening did not exist during Greylord; it is an integral part of the judicial selection process now (if still sometimes observed more in the breach). It is both right and reasonable to believe wholeheartedly in the personal integrity and honesty of the members of our judiciary.

But... and herewith we start on the 'no' part... not all judges are equally gifted. Some are more learned in the law, some are more practical, some are more diligent than others. Some have many of these gifts; others seem to have very few. And not all cases are created equally. That makes a difference: The scholarly judge may be less able to accurately determine which witness is lying and which is telling the truth. The judge who adheres strictly to the rules might be manipulated by a lawyer intent on abusing discovery. The absence of personal corruption is by no means a guarantee that a judge will achieve an appropriate result in any given case.

Judges are human, too, you know, and therefore prone to err.

So when we urge clients to have faith in the system, we must also not over-promise what the system can do.

We can safely promise an honest result in a given case; we can not promise that the result will be appropriate.

So we have confidence in the system -- but we know results are unpredictable.

We have confidence in the system -- but we caution that litigation is often cripplingly expensive, even for the eventual 'winner.'

We have confidence in the system -- but not so much confidence that we do not encourage settlement. Or ADR.

I know many non-lawyers find this difficult to understand. Clients sometimes accuse us of not having the courage of our convictions. If we believe in the system, why would we recommend compromise? Are we being inconsistent? Are we trying to have things both ways?

Contrary to the suspicions of some, this is not post-modern, relativistic angst. In the middle of the 19th Century, a prominent Downstate lawyer had this advice for his colleagues:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Downstate lawyer offering that advice? Abraham Lincoln.

Of course, there are some lawyers who think that the question of settlement should be reserved until the last tenth of a billable hour has been wrung from the case. That's incredibly wrong -- but that's a story for a different day.