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Win-at-all-costs approach costs clients more

In World Cup play over the last 29 years, the U.S. Women’s National Soccer team has won four championships and never finished lower than third.

Six gold medals have been awarded since women’s soccer became an Olympic sport, and the USA has won four of them, plus a silver. It’s been an astonishing run of sustained sporting dominance.

The men’s team, meanwhile, reached the World Cup quarter-finals once. To be fair, the American men play against such national juggernauts as Italy and Germany, both of which have won as many World Cup titles as the American women.

United States soccer star Megan Rapinoe poses with her individual awards at the end of the Women’s World Cup final soccer match between U.S. and The Netherlands in France last year. (Francisco Seco/Associated Press)

Relations between the women’s team and its governing body, the U.S. Soccer Federation, are not good. One might even call them bad. So bad that in March the players wore their warm-up jerseys inside-out while posing for pictures before their 3-1 victory over Japan. Worn that way, the jerseys displayed four stars representing four championships – while concealing the USSF logo.

The protest was inspired by, of all things, a legal brief. The women’s team and the USSF had been locked into bitter contract negotiations that spilled over into a pay discrimination lawsuit. Following discovery, that long, drawn-out process during which litigants interview witnesses and exchange documents (and play tedious games of hide-the-evidence), both parties argued to the judge that a trial was unnecessary. Because the facts were so clear-cut, they both contended, the judge could skip straight to entry of summary judgment.

In a brief arguing the legal issues, the USSF’s lawyers first denied that members of the women’s team were paid less than members of the men’s team. But even if they were, the USSF’s lawyers continued, discrimination was justified because the women had easier jobs. The men were required to display “a higher level of skill” and carry more “responsibility,” or so the lawyers argued.

The ensuing outcry was so intense that Carlos Cordeiro, the USSF president, first issued an apology, then resigned. The legal news site Above the Law summed up the controversy nicely with a headline: “When You Write A Brief So Bad It Gets The Client Fired.”

When the judge came to rule on the dueling motions for summary judgment, he mostly found in favor of the USSF, but on grounds unrelated to the offensive comparisons between the women and men. Those comparisons, the cause of so much turmoil and distress and the ruin of at least one career, turned out to be legally superfluous.

Blame for the debacle doesn’t rest primarily with the lawyers, in my opinion. They were doing what they were trained to do, which is to advance every argument that might conceivably help their client prevail in the lawsuit. Their focus was on the small picture, and rightfully so.

Lawyers are trained to win cases, which is a polite way of saying they’re trained to be aggressive. But the decision whether to take a maximally aggressive approach to litigation is a decision that must be made by the client, not the lawyer. Sometimes, a win-at-all-costs approach imposes very large costs indeed.

Last summer, the venerable British science magazine Nature ran a piece headlined: “Universities show their true colours in court.” The article referred to a deeply disturbing scandal at Dartmouth College, in which female students in the psychology department alleged their supervising professors “groped, sexted … and even raped” them. Those who resisted or complained allegedly faced retaliation.

The Nature article focused on the tactics of Dartmouth’s lawyers, who sought to de-anonymize three Jane Doe plaintiffs. Doing so would have tied their names to the specific sexual humiliations they endured. The college knew their names, of course. Seeking to publicize their identities was a bullying litigation tactic, a way to make continuation of the litigation personally and professionally damaging for them, applying pressure to drop the case.

At around the same time, Dartmouth proudly announced the launch of its Campus Climate and Culture Initiative, “a comprehensive set of actions aimed at creating a learning environment free from sexual harassment and the abuse of power.”

How should we judge the sincerity of Dartmouth’s commitment, by its press release or by its lawyers’ actions? Well, here’s a third way: By the $14 million settlement it eventually agreed to pay, split among 74 women.

Given that eye-popping figure, it seems safe to say the lawyers’ aggressive tactics didn’t do much to help with settlement negotiations. They did, however, generate a burst of publicity for Dartmouth, all of it disastrously negative.

As both cases show, while a lawyer thinks in terms of winning, clients need to think in terms of values. The lawyer deals with the litigation. But the client deals with its aftermath.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

 

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