Defining Winning

By Attorney Gregg Herman
August 21, 2023

Ads for personal injury lawyers (and there sure are a lot of them), use some version of “we don’t get paid unless you get paid”.  One variety is “you don’t pay us, unless we win.”  Which brings up two questions:   First, who is in this “we?”  And second, how do you define “winning?”

Certainly, the intent of the ad is to put contingency fee arrangements into “ad speak.”  Under a typical contingency fee agreement, if a client gets zero, the lawyer gets zero.  But let’s consider another possibility.  Suppose an injured party could settle a matter directly with the insurance company for exactly the same amount as the lawyer could get in representing the party.  In the latter case, the client would pay the lawyer a percentage of the settlement, resulting in less net money than if the injured party had settled directly with the insurance company.  If the “we” in the ad means the law firm, yes, they have won because they have gotten paid.  But is that a “win” for the client who is receiving maybe only two-thirds of what the client would have netted without the lawyer?  If so, count me out, I’d rather lose.

If “we” means both the lawyer and the client, does that mean that the lawyer only gets paid if the recovery is more (after the contingency fee) than the client could have received without the lawyer?  If so, that would, in most cases, be impossible to measure.

Then what is the definition of winning?  “Win” has a clear meaning in sports.  Someone is keeping score and except in golf and cross country, the higher score wins.  As Al Maguire said, if winning is not important, why are they keeping score?

In the practice of law, winning is easy to define in criminal cases.  A guilty verdict is a win for the state and a not guilty verdict is a win for the defense.  A hung jury is a tie, since we don’t have tie breakers, like penalty kicks (which is a shame).

“Win” and “lose” are good doctrines for those who are competitive and keeping score.  Mediation, however, typically discourages use of those terms.  Settlement is a compromise where there are no winners or losers; since in order to get to a resolution, each side has to give up something they want.  If they are unwilling to do so, trial is an option where they may get everything, or nothing.  Some litigants inevitably will choose to throw the dice and take their chances.  More often, there is a search for a compromise.  This occurs in criminal court in the form of plea bargaining, although that doesn’t involve mediation (it might be a better system if it did).

Perhaps a better way of looking at compromise would be to redefine “winning.”  Rather than meaning beating the other side, as in sports, it would be healthier to think that a win is to achieve the best possible agreement for each party.  With that definition, both sides may consider they “won” (something not possible in sports), which is called a “win-win” scenario.

In game theory, a win-win scenario constitutes of a Nash Equilibrium, named after John Forbes Nash, subject of the movie “A Beautiful Mind.”  In a Nash Equilibrium (yes, I’m simplifying it), the optimal solution is where each player lacks any incentive to change his/her position as each party has maximized their result.  By arriving at a Nash Equilibrium, a player does not gain anything from deviating from their strategy, assuming the other players also keep their strategies unchanged.

Put differently, each player attains for himself/herself the maximum possible result while avoiding the costs and risks of litigation.   Such a result is, indeed, a beautiful one.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.