Justice is More Than Winning
We live in a culture increasingly organized around winning. Not resolving, not understanding, and not strengthening the institutions that hold communities together. Just winning.
The result can be disengagement, distrust, and a kind of civic hopelessness. [1]Many people I have spoken with see this dynamic across society, including medicine, education, science, sports, politics, and in the practice of law.
With a win-at-all-cost mindset, people begin to lose sight of the greater good and the ways it benefits everyone. Self-interest is elevated over shared responsibility. Disagreement is seen not as something to work through, but as something to defeat. An unfortunate — downright dangerous — outcome is that people pick a side before they fully understand the issue. It flattens nuance, obscures facts, and reduces us to categories: for or against, right or wrong, winner or loser. It dehumanizes the people on the other side of a disagreement and makes resolution feel like weakness. This mindset powers polarization.
Lawyers should be uniquely equipped to resist it. At our best, we are trained to examine facts, evaluate competing interests, protect process, counsel restraint, and resolve conflict. Yet our profession is not immune from the culture around us. Too often, we participate in it, reward it and sometimes even market ourselves through it.
As lawyers, part of our role in society, and the purpose of the entire system, is to resolve conflict. I believe our profession has a responsibility to help steer our communities away from a focus on winning and toward a focus on resolution. That shift begins with the culture of our profession and with how we present the profession to the broader public.
The Culture of Winning Permeates Our Profession
The legal profession can be perceived as cutthroat, and not without reason. Competition among lawyers begins in law school and extends to “triumph” in court. A judge recently shared with me, “You get one or two classes in law school on professionalism or conflict resolution, then you spend the remainder of the two-and-a-half years learning how to win.”
Winning becomes the standard by which our professional performance is judged. Clients ask whether we can win. Colleagues ask whether we won. Advertisements tell the public how much we won. In some corners of the profession, we have not only accepted this as the norm, but we have also used it in public-facing advertising to distinguish ourselves from our peers. It’s all concerning.
When lawyers talk among ourselves about the highest ideals of the profession, we often use different vocabulary. We speak of professionalism, ethics, service, due process, access, problem-solving, and the prevention or resolution of conflict. We recognize that some causes are worth fighting for and that others require careful counseling about risk, cost, consequence, and realistic outcomes.
Lawyers have these conversations every day. Lawyers in legal aid are no different.
Effective attorneys help clients rise above emotion long enough to evaluate their options clearly. Effective attorneys practicing the profession’s highest ideals help clients understand when litigation is necessary, when settlement is wise, and when being right in principle may not justify the financial, emotional or institutional cost of continuing a fight.
As professionals charged with helping the legal system function for our fellow citizens, lawyers must remember that the system is not simply about winning. It is about dispute resolution. It is about fairness. It is about creating a structure and process in which people can bring conflict without resorting to intimidation or force.
When we remember those things, we not only solve our clients’ problems, we also begin to change the profession’s winning-first reputation. And when we do that — champion resolution over victory — the public can begin to change its perception of both lawyers and the legal system itself.
Steering the Profession Through Conflicting Currents
The insistence on winning creates professionalism problems. When a lawyer becomes more focused on the result than the process, the justice system becomes merely a means to an end. Justice becomes synonymous with victory over the opposing party. This is a dangerous substitution.
In our nation’s governing documents and legal traditions, justice is more closely tied to due process, access, fairness, and the rule of law. Justice is not simply getting the outcome we want. It is the promise that the system will function fairly, that rights will be protected, that facts will matter and that people will have meaningful access to be heard.
Recognizing this distinction helps us identify which issues are truly worth fighting over and which disputes can be resolved through reason, perspective, and restraint. Too often, a narrow focus on winning slows a case’s progress, drives up legal fees, obscures the truth, and increases harm for everyone involved.
A few years ago, I worked on a civil matter involving wrongful ouster and title. It was an 18-month case that should have been resolved in six. The primary reason it dragged on was that opposing counsel remained focused on winning rather than understanding the facts and reaching resolution. Once their client was sold on the idea of winning it all, it nearly cost all parties a $160,000 settlement over a $400 difference about a past due electric bill.
Justice was not achieved because one side defeated the other. Justice was achieved when opposing counsel recognized that they had been leading their client down an unnecessary and costly path and chose instead to resolve the issue. The case did not need more combat. It needed perspective.
That example is not unusual. Many lawyers have seen cases in which a party’s stated goal becomes disconnected from the actual problem that needs to be solved. We have seen matters continue because someone wants vindication, leverage, or the satisfaction of making the other side lose. We have seen the cost of litigation become disproportionate to the value of the dispute. We have seen clients harmed by strategies that confuse aggression with advocacy.
Lawyers Must Lead in Rescuing Due Process from the Pervasive Win-At-All-Cost Mindset
Our responsibility begins before a client ever comes through the door. Many people form their impressions of the legal profession through lawyer advertising. Billboards, digital banners, television spots, and radio ads do not merely promote individual lawyers; collectively, they teach the public what to expect from the legal system.
Advertising serves a valuable purpose. It helps prospective clients learn that help is available, understand their options, and identify legal resources they may otherwise never find. But some advertising also carries an implied message: This lawyer can get me money, just like they got money for the client in the ad. The broader message becomes, “Win as much as you can.” Are we collectively ok with this being our professional reputation?
In a culture already facing division and inward focus, we should ask whether our profession is unintentionally teaching the public that justice is synonymous with victory. If so, we should not be surprised when clients arrive expecting the legal system to deliver punishment, money, or personal vindication, rather than resolution. We should not be surprised when we spend the first consultation resetting expectations that we ourselves may have helped create.
The concern is not limited to those who become clients. For every person who responds to an advertisement, many more simply absorb its message. If the message left behind is that the legal system is primarily about money or defeating the other side, then we should consider the long-term effect on the profession’s reputation, which inevitably has an impact on the public’s trust in the justice system.
When we speak as a lawyer, do we give up some of our free speech rights, knowing that are messages about the system speak for the entire profession? Do we somehow make these messages better, if all the facts in the advertisement are independently verifiable but strung together in a way that fosters antagonism?
I cannot believe that as a profession, a lawyer’s right to speak freely in the marketplace outweighs the lawyer’s responsibility to the public as a representative of the legal system. If an advertisement is technically truthful because it includes disclaimers and exceptions, but it misrepresents the purpose of the legal system or the role of the lawyer, the public has still been misled.
Privilege and Responsibility Require Self-Analysis and Correction
These questions are becoming increasingly necessary for the profession to confront. They may not be answered fully through rules alone. They must also be answered through values.
We cannot claim to defend the integrity of the justice system while also reducing it to a contest for maximum gain. We cannot lament declining public trust while ignoring the ways our own professional culture may contribute to it. We cannot ask the public to believe in the rule of law if we present law primarily as a weapon.
We must embrace our professional responsibility as conflict resolvers. Through our oaths and professional responsibilities, we are entrusted with upholding the promise of redress, fairness, and resolution that the Constitution provides.
That privilege is not merely personal. It is institutional — as lawyers we are officers of the court.
[1]See Robert Putnam’s revelatory “Bowling Alone: The Collapse and Revival of American Community,” Simon & Schuster, 2000, for a full examination of civic disengagement.
Jeffrey D. Harvey is the chief executive officer of Community Legal Services, a full-service civil legal aid law firm serving Central Florida. He is a 25-year veteran of the U.S. Army and currently serves as a colonel in the Florida Army National Guard. Harvey holds master’s degrees in strategic studies from the U.S. Army War College and in human development and leadership from Murray State University, and an MBA. He earned his juris doctor at Stetson University College of Law.
This article was originally published in The Florida Bar Journal and is shared here with permission from the publication.