by Michelle St. Germain
Recently I came across a criticism of practicing law that I had heard once before – the criticism that practicing the law is a zero-sum game, and is one of the reasons lawyers may be stressed or unsatisfied with the practice.
In theory, a “zero-sum game” is a situation where a party’s gain or loss is exactly balanced by the gains or losses of the other parties. So, if the total gains of the parties are added up, and the total losses are subtracted from those gains, a zero-sum game is reflected when the balance is zero. If a pie is cut, and you take a larger piece, it reduces the amount of pie available to others. So, cutting a pie is a zero-sum game.
Even without getting technical, a “zero-sum game” sounds bad. Zero is not good, in general. If you have a zero balance in your checking account, that is bad. If you have zero Oreos left in the bag, that is bad. If you have zero Excedrin left, that is bad. Zero new clients this month?: gulp.
But zero can be good, too, right? You can have zero gray hairs; zero Bar complaints; zero miles on a new car. Perhaps a zero-sum game is what the law should be in some instances – but rarely, if ever, is the law neatly black and white.
I think one of the first ways the law is not black and white has to do with the area of practice. Mergers and acquisitions, estate planning, mediation, and adoption, all come to mind as not fitting cleanly, or at all, within the zero-sum game criticism. But even litigation is not always zero-sum, or if it is, good luck trying to figure out whether you are on the winning or losing side.
When the prosecutor puts a child pornographer in prison by a guilty plea – it seems like the clearest example of a zero-sum game – win for prosecutor, loss for the defendant. But this requires us to ignore the complexity of even what seems to be the clearest criminal case. Perhaps the defendant cannot endure the stress and embarrassment of a trial, and therefore, the plea is to his or her advantage. (Let’s ignore any possibility the defendant is innocent for our purposes.) Perhaps the prosecutor has it out for the defendant after reviewing the grisly evidence, and would like to metaphorically hang him or her at trial. The prosecutor loses the satisfaction in bringing someone to justice; I know a prosecutor who has, from time to time, proudly described his winning trial prosecution of a child sex case.
There are, of course, several victims in this scenario. Not just the child, but the child’s family, maybe witnesses, and the community. The victims are not on either side of the “versus” in the case header, but they ought to be because they are the direct sufferers of the crime. For this reason, the analysis of whether the case is zero-sum is more complicated: victims may be relieved that the case is over and solved, but they may not experience the catharsis of confronting the defendant, and they may not believe that the plea-agreement the defendant received was fair.
A more conventional example may be the settling of a personal injury auto accident case. Both parties in that situation might walk away very happy. The defendant may be relieved she does not need to endure a trial and that her policy thoroughly covered the accident; the plaintiff will be glad to get the case over with and feel vindicated by the settlement. Even this superficial analysis shows that at the very least we do not have a zero-sum game, and possibly it’s win-win. But the calculus becomes more complicated when we include the insurance company as a party, when we consider whether the plaintiff’s lawyer spent more time on the contingent fee case than he was paid, and the number of trees killed by all the paperwork.
Sometimes the analysis makes litigation look more like a non-zero sum game: where the total losses outweigh the total gains of the parties, putting everyone in the red on the balance sheet. My point that practicing law is not a zero-sum game is not semantics – instead, it is actually less clear than it initially appears when you look at it from an outside perspective.
But looking at things from an objective perspective is not an advocate’s job. That is the job of the judges and mediators, and of the people speculating on why the profession of practicing law can be trying. For lawyers, however, this outside perspective may prove useful. Lawyers already know that the practice of law is more than zeroing out numbers. It is an exercise in futility to measure gains and losses in a case – possible gains and losses are never-ending if we are thoughtful about it, and it is impossible to measure gains versus losses. I find this is especially true if you think you’re on the losing side, if you ever really are.
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Under Analysis is a nationally syndicated column. Michelle St. Germain practices law in St. Louis, Missouri. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com.
© 2010 Under Analysis L.L.C.
