Tuesday, August 18, 2009



Law firm websites amuse me. I get priceless satirical material from them. Generally, they take themselves extremely seriously and want to show that they are “winners.” They toss around words like “success,” “results,” “every time,” “reliable,” “professional,” “result-oriented,” “highly successful,” “preeminent,” “unique,” “client-focused,” “team spirit,” “effective” and “experienced.” This all makes me laugh because I know what law firms are like. There is nothing rarefied or glorious about them. They are profit mills in which lawyers pool their efforts to twist the law in their favor. Their “experience,” “results” and “success” flow from their dogged ability to wear down their opponents, then either make money or save money for their clients. For all concerns and purposes, American law practice is an elaborate game. One side wins. The other loses. It is adversarial. And it is seethingly bitter, as all competitive games are.

Big law firms like to report their “recent victories.” After all, “victories” show that the law firm has “won many games,” and potential clients want to win “their game,” too. When betting on a sports team, you want to choose the team most likely to win. You can tell whether a team is more likely to win if you know how often they have won in the past. A law firm’s “past victories” create the impression that it can defeat the opposition again, make money and deliver “success” to a new client. The “victory” metaphor is sport-like, even warlike.

But is law practice supposed to be sport-like? Are legal problems really nothing more than games to be manipulated and won? Or are they miniature wars in which the “enemy” must be hunted down and destroyed? Is this really appropriate rhetoric? After all, law is supposed to provide a rational framework in which to resolve civil disputes. It is supposed to provide reasonable, neutral rules by which to adjudicate problems that might otherwise spur violence. Civilizations invented law to neutralize private violence among citizens intended to redress perceived grievances. In that sense, there is nagging irony in the assertion that lawyers should pursue “victory” for their clients. If law is just and neutral, results should flow as a matter of principle, not as a matter of martial triumph. Law, in other words, is supposed to replace armed conflict as a means to solve problems. Yet the rhetoric of “winning” and “victory” suggests that law is no different from uncivilized, violent struggle. Armies win “victories” by killing those who oppose them in battle. Is this what we expect from lawyers in their “legal battles?”

Let us examine the word “victory.” The word has a decidedly martial connotation. There is nothing detached or nonviolent about it; it involves prevailing over another person or group after a fierce competition or struggle. According to Webster, “victory” means: “1. final and complete supremacy or superiority in battle or war; 2. a specific military engagement ending in triumph; or 3. success in any contest or struggle involving the defeat of an opponent or the overcoming of obstacles.” Webster’s New World College Dictionary (4th Ed.). Two of the three meanings deal specifically with war. The third mentions “success” after “struggling with” and “defeating” an “opponent” in a “contest” with “obstacles.” Victory is a hypercharged, even romantic word. It implies the euphoria that flows from armed triumph over an enemy. It feels good to defeat “opponents” and “overcome obstacles.” It feels good to display “complete supremacy or superiority” over an “enemy in battle or war.” There is nothing more primal than proving domination over an opponent through force. It is crude, animalistic and base. Strong lions overpower weaker ones. They win “victory” over their competitors after a “struggle for supremacy.”

But should lawyers be no different than lions in the wild? Or conquering generals bent on defeating their opponents in battle? I thought law was supposed to elevate us from such violent impulses. I thought law was supposed to replace war with rational principle and reasonable discussion. By using the word “victory” to describe legal “success,” however, lawyers debase themselves. They misunderstand the law. They use it as an arena or a battlefield, not as a rational platform for resolving differences. They approach legal questions like battles, not as opportunities to show their civilized ability to transcend warlike thinking. “Victory” is alluring because everyone likes to “dominate,” “defeat” and “succeed” over a recalcitrant foe. But the question remains: Is law really the right forum to pursue that quest?

Perhaps it is. In the English legal tradition, after all, law functions in an “adversary capacity.” Two sides “face off” against each other. Each side has diametrically opposed interests. One wants land; the other one refuses to give it up. One wants compensation for an injury; the other one refuses to pay. One claims he had a contract; the other says there was never a deal. No matter the facts, “adversary justice” places each side in a “competitive” position. The law assumes that people will make the best arguments—and, ironically, “tell the truth”—in order to satisfy their threatened self-interest. Lawyers step in to vindicate each side’s self-interest. They have only one goal: To defeat the opponent’s arguments and convince the court to grant whatever the client wants.

In this sense, we see that “adversary justice” is profoundly “game-like.” Just as two competitors yearn for “supremacy over the other” in a game, two sides in a legal dispute square off to achieve the same thing. Just as sportsmen must adapt their play to acknowledged rules in their quest for victory, lawyers, too, must contend with “court procedures,” “discovery protocols” and various other “steps” on the road to ultimate success. Each side tries to manipulate the rules to obtain an edge over the other. After all, when “victory” is at stake, you do everything you can to increase your chances to win. In the “adversary system,” competition is fierce. After all, only one side can win; and someone has to lose, too. When money is on the line, the gloves come off. Victory becomes an obsession. Just as two generals struggle violently to obtain an edge over each other in battle, so too do two lawyers savagely grapple with one another for the court’s favor. In all these cases—games, war and “adversary justice”—the breathless quest for victory engenders ruthless competition and narrow-minded commitment to one’s cause, even if it is unjust.

This is all very ugly. We all know who people who insatiably pursue victory in all life’s pursuits. We recoil from those who seek in all things to defeat us. True, sometimes we all enjoy competing for accolades and laurels, whether in games or in life. But there is a limit beyond which we refuse to compete for decency’s sake. Those who compete in everything come off as barbaric and swinish, even if they ultimately win. There is something disgustingly selfish about an endless thirst for victory. After all, victory implies a violent struggle for domination. That is a primal, overweening, animalistic impulse. If we live in a civilized community, we seek to avoid coarse brutishness. Yet the insatiable thirst for victory requires exactly that. Those who publicly broadcast and flaunt their “victories”—like so many law firms—appear wretchedly selfish, even gluttonous and shameless. After all, they are advertising their ability to struggle, fight, brutalize and ultimately dominate their opponents in savage conflicts. That is something Genghis Khan might do, not someone who claims to live in a civilized community.

I think lawyers should excise “victory rhetoric” from their vocabulary. “Victory rhetoric” stems from war. In my view, law should replace armed conflict, not imitate it. But this might be asking too much. After all, even “civilized” human beings retain a lurking instinct to dominate their fellow men. They like the euphoria that springs from “victory,” whether in war, sport or commerce. This is why so many things in our lives—including the law—are “gamelike.” Victory in games provides a primal, emotional charge that humans crave. If they can’t get an emotional charge from battle and physical supremacy over other men, they turn to substitute sources, like games, careers and other competitive fields. All these things provide an opportunity to dominate others, even if without violence.

Yet there is nothing noble about “pursuing victory” and the basely euphoric emotions associated with it. Saint Augustine wrote extensively about games and competition in his Confessions. He confessed before God that he routinely pursued the bestial emotions that flowed from “victory in games” as a child: “In competitive games, I loved the pride of winning…even in [these children’s games] I was overcome by a vain desire to win and was often guilty of cheating. Any breach of the rules I would not tolerate and, if I detected it, would fiercely denounce it, though it was exactly what I was doing to others.” Confessions, at pp. 12, 22 (Oxford University Press 1992). Tellingly, Augustine observed that children are not the only ones who seek “victory in games.” He writes: “Behavior does not change when one leaves behind domestic guardians and schoolmasters, nuts and balls and sparrows.” Id. at p. 22. Rather, adults play games, too, and they seek the same base emotions as children. Just like children at play, they cheat, manipulate rules and engage in hypocrisy. He writes: “[The] amusement of adults is called business.” Id. at 12.

Against that background, should lawyers really crow about their “victories?” Are they no better than children? In sum, we should be very wary about transforming life’s pursuits into competitive games. When we do, we lower ourselves into something resembling animal squalor. I find it both sad and ironic that lawyers—through their ugly “victory rhetoric”—bring the law down to the level of children’s games.

I thought we had come further than this as a civilization. I thought law was supposed to elevate us from violent competitions. Apparently not, at least in the American “legal market.” It’s all just a “win-loss column.” Reason and principle have nothing to do with it, especially if you get an “L” for following them. When you thirst for victory, you do anything for a “W.” Principle is an impediment on that path, not an advantage.

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