Lawyering is Not About Gamesmanship

The focus of this blog is on criminal appeals, but occasionally there is a ruling in the civil sphere which directly impacts on criminal law. Judge O’Connell’s recent opinion in Shaw v Spence Bros. is one of those rulings. The majority reversed a trial court default when the insurance company representing a contract did not timely file an answer to the complaint. Judge O’Connell wrote a separate theory criticizing the attorneys who apply game theory to the practice of law.

The key opinion in the ruling notes:

At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority’s methodology in resolving this case, but as an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today’s law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic.