Television

Games Lawyers Play

Which game show is most like being a lawyer?

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Jeopardy_game_boardWhile competition is a necessary part of law practice, when does competition morph into gamesmanship that helps fuel the perception that what lawyers do is play games with their clients, with opposing counsel, with the courts? Wait a minute, some readers will say, I’m being strategic, not game-playing. Strategy is a careful and thoughtful methodology to achieve a desired result; it’s not gamesmanship, aka jerking the other side around, not responding to phone calls and/or emails and other behaviors that we know all too well.

I’m wondering if the practice of law can be analogized to different game shows. (Full disclosure, I watched game shows during law school; I also watched soap operas. They helped relieve the dreariness of studying. Anyone else willing to “fess up?”)

Let’s start with Jeopardy!, which has been on the air with Alex Trebek for what seems like forever. (Fellow dinosaurs, do you remember a previous version of Jeopardy with a difference emcee?)

Jeopardy seems a very appropriate title for lawyer gamesmanship. Lawyers can find themselves in all kinds of jeopardy representing clients. The term “jeopardy” is obvious in criminal law. Not so obvious perhaps in civil, but nonetheless still there. Blow a statute and you’ve jeopardized your malpractice insurance. File frivolous motions or cases, and you run into sanctions jeopardy, which can mean anything from a slap on the wrist (don’t do that again) to terminating sanctions (you’re outta here). Sanctions in more than a certain amount require reporting to your State Bar, and then the concept of jeopardy can take on a whole new and much more ominous meaning, not to mention rumblings from your malpractice carrier.

Along similar lines is Wheel of Fortune, or, depending upon the circumstances, Wheel of Misfortune. Pat Sajak has been the emcee and Vanna White has turned those letters since before some millennials were born. Dinosaurs, remember prior iterations of the show? The show is based on “Hangman, ” the pen and pencil game I played in law school, along with Dots (not the candy). Failure to guess enough correct letters means the gallows for the stick figure. Ever feel like you’re that stick person?

Then there’s Who Wants To Be A Millionaire? I’m wondering if there’s any lawyer out there who wouldn’t want to be, who doesn’t already bill at a sufficiently high rate to make that happen. 

Just think about the possibilities: millennials would then be able to pay off their student loan debt and once freed of student loan debtor’s prison would be able to do what they really wanted to do in the first place, which may well be “ABL,” in other words, “anything but law.” Dinosaur lawyers might finally have enough in retirement accounts to ditch practice.

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Let’s not forget The Price Is Right. Overbidding, underbidding, isn’t that what we lawyers do all day when negotiating? “That’s an insulting offer.” “That’s an outrageous demand.” “My client won’t even respond.” Really? And on it goes, ad nauseam, until the parties are pooped, emotionally and financially. They don’t care about cars or exotic vacations or whatever The Price is Right grand prize might be. 

They (and their counsel) just want the case over with and so they’ll trade insulting offers back and forth until finally one party makes a respectable offer that the other party takes seriously.

Of course, there’s “Let’s Make A Deal.” Dinosaurs, who was the host before Wayne Brady? 

The show is a useful tool to get clients to understand litigation risk. Do you want to trade for what is behind Door #1, Door #2, or Door #3? What if there’s a booby prize, behind the door you choose? That is life on the show, and that’s how it can be in litigation. 

Booby prizes in litigation can run the gamut from a client who doesn’t know how to STFU in an effort to show how smart she is, to necessary witnesses who either roll in their testimony or fail to show, to smoking gun emails (my personal favorite), to cranky judges who don’t like any part of your case and think it’s stupid with the implication that you are a moron for filing it, and last, but certainly not least, to clients who are in it for the “principle.” Principle gets expensive pretty quickly. When a client asks whether you’re a “fighter,” the answer to that is another question: “are you a payer?”

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The Chief Justice of the United States, John Roberts, admonished in his 2015 year-end report that lawyer gamesmanship needs to stop. 

His comment: “I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.” So, why did you go to law school?

The game Family Feud also exists in law practice. (Dinosaurs, who hosted Family Feud for years before Steve Harvey?) Not only do we compete against the other side, whom we know to be not as smart, not as clever, not as knowledgeable and whom we take delight in demonizing, but we take it one step further and compete against each other even when we’re on the same team. (Issues of origination credit, compensation and other intra-firm squabbles come to mind. Corporate legal departments are not immune from “family feuds.”)

Wall Street Journal columnist Peggy Noonan has noted, in a different context, that democracy is not a plaything. The same holds true for the law. Some lawyers seem to delight in playing games, but the law is not your plaything, not mine, not our clients nor our adversaries.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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