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Zealous Advocacy, Mediation, and the Tangled Pursuit of the "Win"

By Jeff Kichaven

§ 39.10 Winning and What it Is

"Winning isn't everything, it's the ONLY thing!"

"A winner never quits, and a quitter never wins."

"Just win, baby."

No matter how we put it, we are obsessed with "winning," both for our clients and for ourselves. Whether in court or the negotiation room, we go to great cost, risk and hassle to avoid the reality, the perception, and the stigma of "loss." Generally speaking, we are right to do so. Our duties are well stated in, of example, Ethical Consideration 7-1 of the American Bar Association's Model Code of Professional Responsibility: "The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law." California courts have long acknowledged this obligation [see, e.g., Smith v. Lewis (1975) 13 Cal. 3d 349, 365, 118 Cal. Rptr. 621, 530 P.2d 589; Munoz v. Davis (1983) 141 Cal. App. 3d 420, 430, 190 Cal. Rptr. 400; Norton v. Hines (1975) 49 Cal.App.3d 917, 924, 123 Cal. Rptr. 237]. We are to press every lawful advantage, right up to the "bounds of the law," to be zealous advocates for our clients. In other words, to win.

Nobody seriously questions this articulation of our obligations. But the trickier questions are, what does it mean to win, and which processes and tools are best designed to accomplish a win, properly defined?

Our clients-- and we ourselves--generally have one of two conceptions of what it means to "win." Some of us define winning as "clobbering the other side." Others define winning as "the satisfaction of our own needs," regardless of whether or not the other side suffers along the way. The definition we favor informs how we handle the matters our clients entrust to us, and in many cases, our ability to deliver to our clients processes and results which will produce client satisfaction---the critical measure of the degree to which we will succeed, prosper and flourish in the business and practice of law.

In the litigation context and in many others as well, clients often start out in "clobbering" mode. They believe they have been "done wrong" and they want nothing more than revenge. And more revenge.

For us as lawyers, this is a serious problem. Such a client is almost never satisfied with the result, the process, or with our performance as counsel. This is because the other side, no matter how badly clobbered, rarely suffers enough in this client's eyes. A vengeful client out to clobber generally has a hard time planning, in advance, the specific result to be achieved or the goal against which success or failure will be measured. No matter what you do to the other side, it could always have been worse! Generally speaking, at the end of the day, the folks on the other side leave the courtroom under their own power, with the next stop being neither the ER nor the Bankruptcy Court. Not enough! As lawyers, these clients believe that we have failed them! Yet we have done all we can, and produced results which, objectively viewed, and are probably pretty good. It hardly serves our interests, in the business and practice of law, to have clients who perceive us, and our work in this way.

Far better is the situation in which the client focuses on the satisfaction of his or her own needs. This client is better able to give clear instructions, based on a clear definition of what "success" looks like in his or her own eyes; for example, recovering sufficient money to pay off a debt, buy a new building, or achieve some other concrete goal. If this client's own goals are satisfied, it doesn't matter very much whether the other side "suffers" a lot, a little, or even at all. After all, the other side's suffering generally cannot be used to pay your client's bills, grow your client's business, or otherwise make your client's life any better.

We have all been in the frustrating situation of having clients who insist that "winning" requires the infliction of unachievable amounts of suffering on the other side, when they would be much better off if they would only focus on setting realistic goals for themselves, and then work to accomplish them, regardless of what happens to the other side.

§ 39.11 Tools for Winning


Meaning of Winning
Fortunately, there are tools that are designed to change our clients' conception of what it means to "win." The successful implementation of these tools serves our interest as lawyers and provides us the benefit of having more satisfied clients---the kind who pay bills, pay them more promptly, pay them more fully, and are less likely to sue for malpractice. To understand how to use those tools, it is first necessary to delve into the world of negotiation theory, then a peek into the structure of mediation.


Negotiation and Collaboration
Negotiation scholars such as the University of Michigan's Robert Axelrod who focus on game theory have developed an elaborate literature on the incentives for parties to approach a given negotiation in either the "clobber the other side" or "satisfy my own needs" mode [The topic is given perhaps its best treatment in Axelrod's book, "The Evolution of Cooperation."] The game theorists believe that, in most cases, a party out to satisfy his or her own needs will likely end up with greater wealth at the end of negotiation than a party out to clobber the other side, so long as everyone else in the negotiation also sets out to satisfy their own needs, or can be persuaded to do so. In most negotiations, parties are in fact out to maximize their own wealth; the rational party will, therefore, try to persuade others to negotiate in a "satisfy your own needs" (cooperative, or collaborative) mode, and will lead by example. The "clobber the other side" (defecting, or combative mode) will be used only where collaboration does not work.

What, then, are the situations in which collaboration does not work? What are the incentives to engage in combative negotiation, even though that style is likely to lessen the number of chips in your client's pile at game's end? Are there ways that lawyers can help clients stay in, or move into, the collaborative mode, knowing that collaboration (when reciprocated) leads to greater accumulation or conservation of wealth, and accompanying client satisfaction?

Axelrod and other game theorists have identified two principal incentives that lead parties, and appropriately so,to define "winning" in terms of "clobbering the other side," and to negotiate in the combative style as a result. The first is the situation in which the "other side" is irrational, and will not respond appropriately to a collaborative negotiation strategy. The second is the situation in which you believe that you can eat the other side alive.

Virtually all lawyers have been in situations where they believe that the other side will not respond appropriately to a collaborative negotiation strategy. You would be willing to take reasonable and rational positions; you would indicate openness to persuasion if the other side will provide you with information; you would refrain from "take it or leave it" ultimatum; you would be willing to do all this, and more, if only you thought that the other side would reciprocate. But you believe that the other side is incorrigibly combative, the stereotype of the "Rambo" litigator. So, why bother with collaboration? The other side will only exploit you.

Too, virtually all lawyers have been in situations where they believe that they can eat the other side alive. Even though we have all learned the hard way that "a case never again looks as good as it does on the day it walks into your office," human nature still impels us to get a little carried away with ourselves, and with our clients, when we prepare our own side of the case in the comfort and privacy of our own offices. So again, why bother with collaboration? Isn't it a waste of time and money to create "win-win" if you could get "win" right now? These assumptions are easy to indulge when we are alone. When we sit in our own offices and conference rooms and confer with our own associates and clients, it is too easy to demonize the other side and overstate the strength of our own side of the case. We lawyers---sometimes inadvertently but perhaps sometimes not---frequently fuel those flames. We are concerned, often legitimately so, that if we do not express exceptional confidence in our clients' cases from the get-go, the business will shift to the lawyer down the street who will. But many times, we indulge our client's expectations early at the expense of having to disappoint those expectations later, and pain of the latter is in direct proportion to the enthusiasm of the former. It can be excruciating, we have all been there, and ways to avoid the predicament are greatly to be desired.


Happily, mediation , through its very structure, is a helpful tool. In the hands of skilled mediators and counsel, the process can be designed to minimize the incentives to engage in combative negotiation and enhance the likelihood that the parties will engage in wealth-maximizing, client-satisfying, collaborative negotiation. It's not magic. It comes form the ability of all parties, and counsel, to listen, and to talk. It's typically set in motion at the very start of the process.

In the civil litigation context, most mediation begins with a "joint session," with the mediator, the plaintiff and defendant (or their representatives, if they are entities), and their lawyers present. Everyone is generally given the opportunity to talk and the accompanying responsibility to listen. Lawyers generally deliver a summation of the strengths of their case, based on the facts and law available to them at the time. These presentations resemble closing arguments to a jury. They can be forceful and persuasive. For each side, it is generally the first opportunity to see the case as the other side sees it, with the other side's spin and focus, with the vigor of the other side's advocacy, as it is likely to be seen by the judge and jury. Consider what this can accomplish:

When you address the other side. You have been concerned that the other side is incorrigibly combative; that they will not respond rationally to a presentation of the true strengths of your case. As a result, you have been reluctant to negotiate collaboratively. If they are dead-set on clobbering you, even the game theorists would acknowledge that you are correct to clobber right back. But when you actually present your case to the other side, face to face, their reaction is generally quite different. The folks on the other side are generally not stupid, and are rarely so stubborn or ideological about the litigation as to fail to respond appropriately to what you have to say. You can generally see it on their faces and in their body language, if not hear it in their words.

If your points appear to have merit, but somehow don't seem to be sinking in on the other side of the table, then part of the mediator's job is to catalyze that process. In later private caucuses as well as in the initial joint session, part of the mediator's job is to sensitize the other side to the risks of letting you present your case to the trier of fact. Mediation provides the opportunity for the strengths and weaknesses of everyone's positions to be thoroughly analyzed and rationally taken into account. Once you sense--and you generally will---that the other side is not so incorrigible, but rather responds more or less rationally to what you have to say, the first incentive to engage in combative rather than collaborative negotiation goes by the boards.

When the other side addresses you. No longer are you and your client ensconced in the comfort and privacy of your office. In the adversary crucible of the mediation, you have the opportunity to listen to what the other side has to say. In almost every case, there are at least two sides to the story. When you hear the other side spin their tale, in their own words, with the vigor of their own advocate, you may well be disabused of the notion that your case is a lead-pipe cinch. And in truth, few cases are cinches, particularly when the task of adjudication is left to an often-unpredictable jury. So the second incentive to engage in combative rather than collaborative negotiation is minimized as well.

In mediation after mediation, clients and lawyers so chastened---both on your side and the other side---come to change their negotiating tune. The desire for clobbering is replaced by a desire for finality: a desire to eliminate the enhanced risks (newly perceived) of continued litigation, to eliminate the certainty of the mental, emotional and financial drains of continued litigation, and so get on with one's career and life with a "bird in the hand" settlement that satisfies the client's own needs reasonably well, as compared to the alternative. It is a clear "win," albeit differently defined. It is the best opportunity available for the satisfaction of the client's needs. When we enable our clients to achieve this goal, we exquisitely fulfill our obligations under Ethical Consideration 7-1 and California law to represent and advocate our clients' interests with zeal.

Although many clients (and lawyers) leave these mediations with some lingering sense of disappointment over not getting everything they came in to achieve, these settlements grow on your clients, and look better and better with each passing day. Like the person who did not realize how painful it was to bang his head against a brick wall until he stopped, many clients did not realize how painful litigation was until it ended. The lawyer's wisest strategy may well be to give the client time to appreciate the benefits of living litigation-free; and then to allow the client to give the lawyer the credit he or she deserves for that result.

§ 39.12-30.19 [Reserved]

*Jeffrey G. Kichaven is a Los Angeles lawyer who serves as a mediator and arbitrator. He's chair of the Committee on Dispute Resolution in the American Bar Association's Section of Business Law and is a member of the board of the Los Angeles County Bar Association Dispute Resolution.

Originally published In California Forms of Pleading and Practice and in California Alternative Dispute Resolution Practice (Matthew Bender & Co., Inc., 1998). ©Copyright 1998, Matthew Bender & Co., Inc. Reprinted with permission.

Jeff Kichaven, A Professional Corporation
Suite 3000, 555 West Fifth Street
Los Angeles, California 90013-1010
310-721-5785; 213-996-8475 fax; email

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