Professional
Responsibility
Competition and the Focus on Winning
Seymour Wishman's Confessions of a Criminal Lawyer (New York: Penguin, 1982) is an insider's account of how the competitive urge is worked out in the practice of law.
<1> In a world where the objective is to win, get ahead, be successful, there is a fear that ethics will hold us back, and we will not be competitive. Ethics becomes, in this fear-driven competitive mode, an undesirable restraint. "I will be crippled--shackled--by the undue disadvantage acting from a moral perspective when others do not. It is a cutthroat world. The only ethics that I can afford is an ethics of self-protection." Alasdair MacIntyre has said of the virtues justice, courage and truthfulness that:
[T]he cultivation of truthfulness, justice and courage will often, the world being what it contingently is, bar us from being rich or famous or powerful. Thus although we may hope that we cannot only achieve the standards of excellence and the internal goods of certain practices by possessing the virtues and become rich, famous and powerful, the virtues are always a potential stumbling block to this comfortable ambition. [Alasdair MacIntyre, After Virtue 183 (Notre Dame, Indiana: University of Notre Dame Press, 1981)(2nd ed., 1984)]
<2> In the first chapter of Wishman's Confessions, there are three interrelated ideals: winning, performance (competence and skills), and justice. How does winning undermine Wishman's ideals of performance and justice?
<3> What makes winning an ideal? What subverts the ideal of winning?
Wishman, like many who find their way into law, is intrigued by the adversary system. Unlike many who become lawyers, Wishman is good in the courtroom. While a prosecutor, Wishman says, "I began trying one case after another, and I learned my trade and loved what I learned." [10]. Wishman takes pleasure in winning and so his winning becomes part of the myth he is living, winning that is both mythic and tragic. How is winning part of our myth as lawyers? How does an ideal become tragic?
On the moral aspect of winning, Wishman sees that it has "less to do with right and wrong than with an obscure identification with the underdog, even a despicable underdog, against authority." [17]. Has Wishman let the moral ideals reflected in his concern for the underdog become warped by his adversarial zeal?
I remember a grey November day in Washington, D.C., in 1956. Our law firm had just won a famous victory. A corrupt official, who had brazenly stolen public funds and had been convicted, was freed on a technicality which I found in the statutes. The other lawyers who had worked on the case were going to have a victory dinner at the client's expense at Chez Maxime, an exclusive French restaurant. I politely declined. I drove home through the miles of bleak apartment houses feeling no appetite and a hollow emptiness inside. At home I feasted on two hotdogs in solitary splendor and misery. [19]
<4> When he reflects on what it means to win, Wishman begins to see winning in the context of his ideal of "defending people wrongly accused of a crime," but there is a problem: most of his clients were guilty. [16]. The realization that his ideal did not match his law practice brought a "chilling glimpse" of himself. Wishman says, "I was frightened by the person she [Mrs. Lewis] saw . . . frightened that I could be seen that way . . . frightened that I might be that person." [18]. The problem is that he is using his "skill and energy on behalf of a collection of criminals. Not all of them, but many, had been monsters--nothing less--who had done monstrous things." [16] [It is the use of one's skill and energy that Jerry Kennedy, the lawyer in George Higgins, Kennedy for the Defense 35-36 (New York: Ballantine Books, 1981), tries to defend, when his wife questions the morality of his taking what she characterizes as "dirty money" or "blood money" for his fees.] [Compare Wishman's response, id. at 16-17]
Wishman, upon reconsideration, rejects his "trained lawyer" response--"everyone was entitled to the best defense in order to make our system of justice work"--and his more "flippant" response, that he takes no more responsibility for what a criminal does who gets off than "a doctor who repairs the broken trigger finger of a killer. . . ." Nor, Wishman contends, will "lofty, jurisprudential arguments" work. [17]
<5> Wishman's courtroom performance and consequently his winning has "something to do with a need for power and control, respect and admiration." [17][see also, 231]. How is the desire to win, to become a winner, a surface manifestation of an unexamined, deeper, psychological need? Is it this constant focus on winning that makes us neurotic?
Wishman has alluded to still other psychological elements of a lawyer's use of witness humiliation to win a case:
All the lawyer's emotions and skills are deployed for one purpose--winning. During a cross-examination, all energy is spent on beating the witness. With a tough witness, the duel can be thrilling. Few lawyers would admit that anything other than the pleasure of craftsmanship had been involved in subduing a witness. And yet I have seen lawyers work a witness over, control him, dominate and beat him--and then continue to torment him. Deriving enjoyment from inflicting that unnecessary measure of pain might be rare, but not that rare. If the witness is a woman, there might even be sexual overtones to the encounter. [Seymour Wishman, "A Lawyer's Guilty Secrets," Newsweek, November 9, 1981, p. 25][on-line text]
<6> How can a lawyer justify winning a case she should have lost? Seymour Wishman relates the following story:
The victim, a middle-aged woman, had been viciously and gratuitously sprayed in the face with Mace. She testified that on a particular day a man she had never seen before had come into her employment agency. "I'll never forget that face," she said, pointing at the defendant, her voice breaking into sobs. "After I gave him the money, after I had done what he said, after it was over, he sprayed me with Mace. He didn't have to do that. He could have blinded me. It burnt terribly."
The public defender maintained that the defendant had filled out employment forms earlier that day in the victim's office, and she must have confused the defendant with some other man who had robbed her. The lawyer produced specimens of the defendant's handwriting made before the crime. During the summation he asked the jury to see the similarity between the defendant's handwriting on the specimens and the handwriting on the employment agency forms. Although the handwriting appeared to be very similar, the public defender did not produce an expert to assert with authority that it was by the same author. The state would have paid the expenses for the public defender to use such an expert. There were only two ways I could interpret the absence of a handwriting expert: either the defense counsel had been negligent or he knew an expert's testimony would have confirmed the guilt of his client.
During my summation, the best explanation I was able to give was that the defendant had a very simple signature, and that some other man obviously working with the defendant had filled out the forms. "That other man must have made his handwriting look like the defendant's so that if the defendant ever got caught, he could come into court and try to confuse a jury like you with some hocus-pocus." I was troubled by this approach but could think of no other . . . except that the victim was mistaken.
In my summation I didn't dwell on the handwriting, but focused on the viciousness of a crime that had nearly blinded the victim. I stood before each juror, one at a time, as I walked down the jury box, placing my fist inches away from each one's face, shrieking, "Imagine the burning spray of Mace."
To my surprise, the jury convicted. I was elated--at first.
But after the initial excitement of winning, I looked at what I had done. I had been so caught up in the contest, the adversarial battle of the trial, that it hadn't occurred to me that I might have been responsible for the conviction of an innocent man. I believed, even if the jury hadn't, that there were other explanations for the similarity in handwriting than the one I had argued to them. On reflection, after the verdict, it seemed to me that the defendant might have been telling the truth. [10-12].
Wishman follows through on his doubts and, with some difficulty, gets the conviction overturned. It would have been possible, in fact, quite easy to have dropped the matter. What kind of rationalization would a lawyer use to do that? [Note the trial judge's initial reluctance to overturn the conviction, notwithstanding the prosecutor's argument that the defendant may have been innocent.]
| The Central Park jogger case |
<7> If you are to understand how competition affects your character as a lawyer, then you must unravel the complex history of your own competitiveness. Competition is not something that just happens, nor is it inevitable. Competition is learned. You have already learned to be competitive before you come to law school; legal education is graduate work in competition. Competition and the idea of winning are so commonplace in our culture that we sometimes lose sight of other goals and ideals. We forget the moral cost of living to win.
What virtues and vices do you see in how you compete? In how law school would have you compete?
"At bottom, ours is a society built on individualism, competition,
and success. These values bring great personal freedom and mobilize powerful
energies. At the same time, they arouse great temptations to shoulder
aside one's competitors, to cut corners, to ignore, the interests of others
in the struggle to succeed." Derek Bok, A Flawed System of Law Practice
and Training, 33 J. Leg. Educ. 570, 575 (1983).
Francis Allen, in an essay he called "On Winning and Losing,"
which appeared in the Michigan Quadrangle, observes that
Preoccupation with winning has always been an American propensity, and never more so than today. Yet there is surely no group in our society that needs more to devote serious thought to the nature of winning and losing than lawyers. Winning and losing are inherent in the adversarial system. . . . To be sure, skilled practitioners negotiating long-term relations among parties may deliberately avoid exacting the total victory that their power might make possible, in the interest of establishing more stable and enduring associations. There are, nevertheless, many situations in which one lawyer must win and another lose. Sound ideas about winning and losing, therefore, are essential to the lawyer's happiness and peace of mind, his effectiveness and his integrity.
Today, sound ideas about winning and losing are not in oversupply. Some observers have suggested that the true prophet of the modern American philosophy of success was the late Vince Lombardi. "Winning," he said, "is not everything. It is the only thing." And again: "To win you've got to hate." One might be disposed to dismiss such statements as excrescences on the wonderful world of professional athletics were it not for the fact that these or similar dicta have obviously provided the basis for much that has recently occurred in our public life.
A young person involved in the events of his age must first honor his conception of decency and propriety, must resist the pressures and temptations to depart from it. Such a person has not failed, however frequently his goals of achievement are denied, especially if infidelity is resisted with grace and serenity. . . . It is a good thing to win prizes, lawsuits, and elections. It is splendid to gain economic rewards and public recognition. But to make these things the test of winning is the fatal error. The person who is denied prizes and awards but who maintains the ethical ideal has triumphed because his life constitutes a vindication and validation of the ideal. These are hard teachings, but they constitute the essence of moral realism. Surely the history of the post-war world warns that we reject these teachings only at peril to our own lives and that of our society.
In recent years law students have often castigated their society because, they say, it will make them do things they believe to be wrong. There are no doubt good grounds to protest many of our social practices, but this is not one of them. The pressures and temptations are great, and the obstacles to the ethical life confronted by lawyers are especially formidable. But in what age and in what culture have men and women participating actively in the life of their times been spared pressures and seductions? Why are we peculiarly entitled to a regime of morals made easy? One willing to attribute moral lapse to forces impinging upon his life from the outside compounds his infidelity with a forfeiture of human dignity.
[O]ne may devote a lifetime to a purpose or a cause, make sacrifices of health and pleasure and still be denied the satisfaction of seeing one's goals achieved. But there is perhaps an even more insidious realization. One may pay dearly to achieve one's purpose and succeed, only to discover that one's small triumph is too insignificant to matter much or, even worse, to conclude that one was mistaken in the choice of goals; that one's achievement has done harm rather than good.
These also are hard facts, so hard, indeed, that millions of persons all over the world have shrunk from a clear-eyed recognition of them. These persons have ingested the narcotic of political fanaticism that makes possible the belief that their cause is infallibly virtuous and must inevitably succeed. Perhaps these persons are correct in believing that only in such self- stultification and self-deception can modern men and women gain purpose and morale sufficient to direct the forces of the modern world. If they are correct, however, we must abandon our dreams of a humane society, one in which both mind and feeling are free. The critical question is whether men and women, undeceived about the perils and ambiguities of all human action, can summon the morale and effort necessary to contend effectively with those who have rid themselves of all doubts."
Francis Allen captures an even more somber view of winning in Law,
Intellect, and Education 15-16 (1970) where he observes that:
[V]ictories are not inevitable . . . effort and rectitude may not be enough . . . there is no certainty that the forces of light will prevail over the forces of darkness. In short, one may devote a lifetime to a purpose or a cause, make sacrifices of health and pleasure, and still be denied the satisfaction of seeing one's goals achieved. But there is perhaps an even more insidious realization. One may pay dearly to achieve one's purpose and succeed, only to discover that one's small triumph is too insignificant to matter; or, even worse, to conclude that one was mistaken in his choice of goals, recognizing that one's achievement has done harm rather than good.
See generally: The Zealous Lawyer: Is Winning the Only Thing?, 4
(1) Rpt. Ctr. Phil. & Pub. Pol'y 1 (1984)
