University of Miami Law Review Volume 57 Number 2 Article 2 1-1-2003 Lawyers' Poker Steven Lubet Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Steven Lubet, Lawyers' Poker, 57 U. Miami L. Rev. 283 (2003) Available at: https://repository.law.miami.edu/umlr/vol57/iss2/2 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact
[email protected]. University of Miami Law Review VOLUME 57 JANUARY 2003 NUMBER 2 ARTICLES Lawyers' Poker STEVEN LUBET* I. INTRODUCTION Neither history nor anthropology can tell us with certainty whether trials resemble games or games resemble trials. The similarities are often noted and beyond question. Both games and trials are contests in which winners are declared. Both depend upon formal rules and set pro- cedures, and both occur in separate, designated spaces where these spe- cial rules apply. Trials, of course, are deadly serious (for the participants, if not the observers), while games are, well, games-a combination these days of fun and commerce, but focused always on an irreducible core of entertainment (someone has to enjoy it or it isn't really a game). The Dutch cultural historian Johan Huizinga believed that games came first; indeed, that play actually precedes humanity: Play is older than culture, for culture, however inadequately defined, always presupposes human society, and animals have not waited for man to teach them their playing.