PROFESSIONALISM CORNER
The Tyranny of Winning
D . CULVER “ SKIP ” SMITH III
Much of what we lawyers do involves parties whose interests are adverse . Our judicial system is an “ adversary system ,” a term that we invoke with near reverence . We practice undivided loyalty to our clients . We live and breathe the old axiom about zealous representation .
The very nature of adversarial representation , based on client partisanship , encourages singular focus on maximum results . We have “ adverse ” parties and “ opposing ” counsel . Rather than view them simply as participants with different objectives or points of view , we all too often see them as rivals — even enemies . The competitive juices well up . In a time of social egocentricity , this increasingly begets aggressive , vexatious , and obnoxious behavior . We self-importantly brand the opponent as evil , stupid , or simply mad . The ego runs amok . The chasm between opposing lawyers widens , personal attacks abound , and constructive communication disappears into the abyss .
At the same time — almost naively if not hypocritically — we lament the increase of incivility in the profession . We are quick to disparage the lack of professionalism in others — as we define it from situation to situation , sometimes arbitrarily and often arrogantly . (“ I know it when I see it .”) We promulgate standards of professionalism and courtesy . Good manners are desirable and even contain some moral lessons , but we seem to be missing a fundamental issue .
Do we participants in these dramas need to reflect on the meaning of “ winning ”? Do we need to step back , remove the adversarial blinders , and think more broadly about its benefits and detriments ? When we “ win ”— whether a trial or a negotiation — what have we accomplished ? And at what price ? As important as what we have won is how we have won it . The world does not end . Lives go on . Results linger . Memories endure . The euphoria of victory is as satisfying as one ’ s conscience permits . It inevitably is short-lived . Accolades only briefly deter haunting visitations by an ill-gotten victory . Meanwhile , the client , for whom the “ victory ” has been gained , may be left financially or emotionally destitute by the otherwise unnecessary contentiousness of the process .
Zealous representation does not mean war . It is not a video game . It means a commitment of one ’ s skill , knowledge , and energy to a client ’ s cause . The concept was expressed in the 1908 ABA Canon of Ethics as “ warm zeal .” It found its way into the 1969 Code of Professional Responsibility as Canon 7 : “ A lawyer should represent a client zealously within the bounds of the law .” No current Rule of Professional Conduct mandates zealous representation , the aspiration instead appearing in the Comment to rule 4-1.3 on diligence : “ A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy on the client ’ s behalf .”
Rare is the litigation or transactional negotiation in which one side is completely right and the other completely wrong . A lawyer who fails to question the merits of his or her client ’ s position or to see the strength of the opponent ’ s does the client a disservice . There is no weakness in being conciliatory . There is no weakness in genuinely and openly exploring reasonable resolutions . Zealous representation does not mandate a certain emotion or style of litigating , negotiating , or counseling . Those of us of a certain age used to be kidded by our nonlawyer friends ( yes , we had some ) about our ability to oppose one another in court or across the table — always with the clients ’ interests foremost in our minds — then adjourn to the nearest coffee shop or watering hole to recap the day and speak of other things important to our worlds . There seems to be less of that in this age of heightened competition and electronic isolation .
Competitive instinct is healthy , but it says nothing about drawing blood from an opponent . The late football coach Vince Lombardi famously said , “ Winning isn ’ t everything ; it is the only thing .” Late in life , he expressed regret about the statement , saying , “ I meant the effort . I meant having a goal . I sure didn ’ t mean for people to crush human values and morality .”
The irony here is that the bad behavior that we all too often witness is its own worst enemy . In the pursuit of victory , it rarely
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succeeds . It invites loss of credibility , the imposition of monetary sanctions , and in extreme cases the loss of one ’ s law license . It guarantees lack of personal serenity . We lawyers operate in a context larger than a single litigation or transaction . Loss of perspective can be fatal not only to the client ’ s interest but also to one ’ s reputation , livelihood , and peace of mind . We must be vigilant against the tyranny of winning .
D . Culver “ Skip ” Smith III advises and represents lawyers and law firms in ethical and disciplinary matters and serves as an expert witness on the professional responsibility of lawyers . He maintains an office in West Palm Beach and can be reached at 561-598-6800 or at < csmith @ culversmithlaw . com >.
The Palm Beach County Bar Association ' s Judicial Relations Committee & Young Lawyers Section
Presents
A Three-Part CLE Seminar for Attorneys Practicing 0-3 Years ( Part II of III )
Monday , January 11th , 2021 12:00 P . M . - 1:00 P . M . Live via Zoom Members ; Free Non-Members : $ 15.00
Register by visiting www . palmbeachbar . org