The Word “WIN” is Insensitive to the Injured Party or the Deceased’s Family
Money obtained by people as a settlement or judgment through civil litigation is not prize money; it is something they are owed as a result of a harmful occurrence caused by negligence or wrongful conduct. People who obtain compensation did not win the money like in a lottery or a game. In other words, they did not come across the money by chance. They are not winners—they are victims of a harmful occurrence that in many cases has a devastating effect on the rest of their lives. Similarly, an attorney does not win money for a client. The attorney advocates for a client marshaling facts and law so as to obtain justice for the wrong perpetrated and harm caused.
A mother who had to bury her child due to a drunk driving accident, a worker who lost an arm in a construction accident, a man whose mother died in a nursing home due to negligence: these people did not win the case even if there was a sizable settlement or judgment for them or their families. They were harmed, leading them to a world of physical, emotional and financial pain. They utilize our civil justice system to obtain some measure of justice and an attorney’s job is to help them obtain the justice and compensation they so rightly deserve.
Many attorneys, not all but most, are guilty of using the term win in some way describing a legal case. I, too, used the term before realizing the insensitivity of it, and how victims would feel hearing their situation being described as a win. I used it in writing and I’ve said it aloud. I had even included it on my website. I don’t know when it started or why, but it seems to have been in use during my career for over 30 years. Maybe the term was easy to use without much consideration; maybe it was used to market oneself; or maybe it was used because of attorney bravado. It doesn’t matter much as long as people viewing the settlement or judgment realize the term is inaccurate and disrespectful.
Our civil justice system has been in place under our constitution (federal and state) for many years to serve the purpose of redressing harm or damage, wrongfully inflicted upon people or corporations. At the conclusion, no one comes out a winner or a loser; instead, each party comes out receiving what was rightful and fair as a result of the situation at hand. Nothing in the civil justice system is by chance—there are complex procedural rules, statutes, case law and essential roles played by judges, juries and attorneys. You walk into the justice system having been wronged or harmed in some way and you come out the other side with fair compensation; nothing more or less than what was fair, reasonable and justified. Each case culminates and justice manifests in a judge’s order, a jury’s verdict or a compromised settlement between the parties, through the efforts of their attorneys after all the necessary facts and law have been revealed. That is what good personal injury attorneys do for their clients—not win something as a matter of chance but obtain justice as a result of hard work, knowledge, experience and perseverance.
All of this is not to say that all lawyers are the same and immaterial to the end result, because that is not at all true. Indeed some lawyers are much better than others and it is important to have a well experienced trial lawyer who works hard to advocate for a client’s rights through the justice system using the laws and procedures necessary to do so. But at the end of the case, the connotation of the term “win” suggests it could have been nothing more than a flip of a coin or picking the better sports team or buying the right ticket. It is an inaccurate term to use when describing a lawyer’s efforts. More importantly, it does not reflect what happens to the parties (litigants) at the end of the case because nobody wins. Instead, they all obtain some measure of justice.
As attorneys, we should strive to be more respectful in the way we describe settlements, verdicts and judgements. Respect for not only our system of justice, but for the persons involved in it and affected by it. I have never seen a client more satisfied with a compensatory settlement or award than they would be, for example, by having their spouse still alive, or still having the leg they lost, or having a serious injury undone. It is simply incorrect to say the client “won” anything. As attorneys we should take better care in describing the outcome of these types of cases. We should not use a word that even remotely suggests the clients received something they did not deserve when, in fact, whatever the amount of compensation, it is so much less than what was lost or damaged and it certainly does not amount to a win.