It’s one of the first questions a lawyer should be asking a client in an initial meeting or as part of a more thorough process assessment. What is the potential client’s goal?  Oddly, most lawyers in their initial meeting or consultation never ask this key question.

For people involved in a dispute, the sooner you answer this question with clarity, the better off you will be in the long run.  That clear answer is crucial to setting the course for the best way to approach your dispute.  It will also decide if you will reach your goal at all, and if you do, whether it will be as a direct and intended result of the dispute resolution process you choose, or as a lucky by-product of a process designed and intended to reach some other goal.  If the lawyer you are consulting with doesn’t ask you this question and get a really clear answer from you, run – don’t walk – and find another lawyer that asks you what you want.

If your goal is to win your dispute, this automatically also means that to achieve your goal, the other side must lose.  It is a zero-sum game.  Winning requires declaring war and taking sides.  It sets the lawyers in motion in a competition to see who can beat the other one every procedural and substantive step of the way, over the next two to five years.  Winning is a goal best served by a no compromise, take no prisoners, win at all costs approach.  Think Keanu Reeves in The Devil’s Advocate: “I win; I win!!” 

People who want to win usually also want the other side to lose.  Even if they don’t want the other side to lose, that is the result when one side wins.  This goal opens the door of the adversarial process. This is not the land of “everybody gets a trophy.” The law’s adversarial civil procedure is not designed to achieve a win-win result.  It is designed for two or more parties involved in a dispute to fight to determine who is right and who is wrong, who is liable for what happened, who must pay the other and how much.  This is the litigation landscape.  It is what we expect of litigators.   In the memorable words of Terrence Mann (James Earl Jones) in Field of Dreams when he was asked if he was going to write about what he saw on the baseball field and beyond it: “It’s what I do.”

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