Reviews Poker Courtroom
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v6n2.book Page 203 Monday, December 16, 2002 11:13 PM Reviews Poker Courtroom What Lawyers Can Learn from Card Players Andy Bellin Poker Nation HarperCollins 2002 Steven Lubet Games Trials the ball in play), oral argument (Õelding a question), refusing to settle (rolling the dice), Lawyers all realize that they must play by the winning (a knock out), and losing (a strike rules, but is there a deeper relationship out). between games and law? Interestingly, the analogies almost all run in Analogies are inevitable. An easy case is a one direction – perhaps because games are slam dunk, and a perfect cross examination more common, more accessible, and more pop- really scores points. An overbroad document ular than trials. Whatever the reason, there are request is a Õshing expedition, while a fortu- few, if any, legal metaphors in sports or games. nate discovery hits the daily double. An We don’t speak of pitchers cross examining hit- inscrutable judge hides the ball, but if you ters or bridge players delivering arguments. An complain to the court you might Õnd yourself angry coach might read “chapter and verse” to skating on thin ice, when all you really want is her underperforming players, but she would a level playing Õeld. Alas, sometimes your not “Õle a motion” or “cite precedent.” True, an opponent stoops to dirty pool, which might umpire’s “verdict” may sometimes be “reversed sorely tempt you to follow suit. The language on appeal,” but those tropes are not metaphors of games seems to inform almost everything at all. Rather, they reÔect the reality that some we do in law practice – preparation (coming sports are, in fact, judged. up with a game plan), negotiation (jockeying This linguistic observation leads to an for position), witness examination (putting intriguing question. Recognizing the impact Steven Lubet is a Professor of Law at Northwestern University. A note on pronouns: This essay uses female pronouns for all card players, game players, and athletes; it uses male pronouns for lawyers and witnesses. Copyright 2003 Steven Lubet. 203 v6n2.book Page 204 Monday, December 16, 2002 11:13 PM Steven Lubet that the language of games has had on the with incomplete information. In poker, a player language of trials, to what extent might games must continually decide whether to raise, call, themselves provide useful lessons for trial or fold without seeing some or all of the other strategy? players’ cards. There is always a certain amount This is not a question about the academic of public information in the form of exposed study of “game theory.” Scholars in that Õeld cards (except in draw poker) and, more impor- have long posited that their models can predict tantly, in the betting behavior and physical behavior in all sorts of human activities, from demeanor of one’s adversaries. The objective in business to international relations to litigation. poker is almost always to deceive the other Almost none of it, however, has Õltered down players by misrepresenting your own cards – to actual courtrooms, at least in any advertent often by showing strength when your cards are sense. While the argument can be made that weak (thus bluÓng the others into folding their litigators naturally employ game theory (after hands), or by showing weakness when your all, where does the theory come from, if not cards are strong (thus encouraging others to practice?), there is virtually no professional keep betting when they cannot win). Even literature urging lawyers to run computer honesty in poker is deceptive. A strong hand simulations or engage game theory consultants played strongly allows one to bluÖ more easily for even the biggest trials. Nor do practicing later in the game. attorneys make a habit of speaking in the Nonetheless, there are underlying poker language of economic modeling. You will never ethics, summed up by the phrase “cards hear real lawyers bemoaning a prisoner’s speak.”1 In other words, the best cards always dilemma or worrying about the tragedy of the win, for those who remain in the game commons. But you will hear them complain through the Õnal round of betting. Thanks to when the court moves the goal posts, thus the laws of probability, every player has an leaving them stuck behind the eight ball (and identical chance of drawing winning cards. perhaps forcing them to punt). The decision about whether to stay in the In truth, most games, especially sports, game is freely made by each player, as all have have little relevance to trial strategy. Apart equal access to precisely the same information. from a few universal bromides – keep your eye While deception is at the heart of the game, on the ball; run to daylight; hit ’em where they some shady tricks, such as “string betting,”2 are ain’t – there are very few practical lessons that prohibited. Absent cheating, there are no are transferable from recreation to advocacy, alliances or side deals, no secret swapping of which is primarily intellectual rather than information. physical. Law practice, and litigation in particular, There is one game, however, that deÕnitely shares many of these characteristics. Most provides a useful template for law practice. importantly, lawyers must make a constant And that game, of course, is poker. series of decisions based upon a mix of available There is an undeniable, though imperfect, and unknown facts. The most obvious such symmetry between litigation and poker, in that decision is whether to settle or proceed to trial, each involves competitive decision making but there are also many other, smaller decisions 1 Richard Harroch Lou Krieger, Poker for Dummies 228 (2000). 2 In a string bet, a player throws chips into the pot in installments – thus allowing her to observe reactions before completing her play. This is illegal; the player’s bet is therefore limited to the initial amount thrown into the pot. A. Alvarez, Poker: Bets, BluÖs, and Bad Beats 125 (2002). 204 6 Green Bag 2d 203 v6n2.book Page 205 Monday, December 16, 2002 11:13 PM Poker Courtroom along the way – which depositions to take, your strongest argument for rebuttal. Makes which motions to Õle, which theories to pursue, sense again, but aren’t there exceptions? which questions to ask – each one inÔuenced to Opening statement is the most important part one degree or another by opposing counsel’s of the trial. This one has become a legend, but behavior. The best lawyers, like the best poker is it really true? players, have a knack for getting their adversar- In contrast, poker maxims are constantly ies to react exactly as they want, and that talent being tested and retested. Many of them are tends to separate the winners from the losers. based on clear mathematical calculations, and In poker, every mistake costs money – which others have been validated in practice. Capable makes it a terriÕc heuristic. A poker player, of poker players know the precise odds of Õlling even moderate skill, knows instantly when she an inside straight (they’re crappy, don’t try it3) has misplayed a hand. Moreover, she is or completing a Ôush when you draw three immediately able to calculate the exact cost of suited cards in seven card stud (pretty good, the mistake. Because poker involves a relatively worth betting4). small number of variables – there are only 52 In short, poker wisdom represents real cards in the deck, and only three possible insight into the workings of the game, moves in each round of betting – a player can including the all-important techniques of assess every aspect of her game ruthlessly and “representing” your hand to maximize its with considerable accuracy. There is no value. Poker is extremely popular, played by kidding yourself in poker; you either win or as many as sixty million Americans, and lose. every player has a cash incentive to improve Lawyers have more trouble with self- the quality of her play. Consequently, it is no assessment, and not only because of ego surprise that there are scores of books involvement and self-delusion. Every lawsuit devoted to poker strategy and technique.5 has thousands of factors, and no case exactly Most of them are of the standard how-to-do- duplicates any other. What’s more, most it variety, but there is also a substantial litigation comes to a fairly indeterminate end amount of poker journalism, and even a via settlement, while ultimate negotiating category that might be called poker literature. positions remain unrevealed. It is therefore The latest entry in the literary genre is diÓcult to say whether, and to what extent, one Andy Bellin’s Poker Nation: A High-Stakes, has won or lost. Even in those few cases that go Low-Life Adventure into the Heart of a Gambling to trial, thus producing a clear winner, there is Country.6 Bellin, a magazine writer and no easy way to identify which decisions worked quondam graduate student in astrophysics, and which failed. successfully combines solid advice for In law practice, the many, many dependent amateur and experienced players with a series variables defy isolation. Consequently, even of engaging essays that cover the history, the most well-recognized truisms can be nei- culture, and personalities that make the ther validated nor falsiÕed. Never ask a ques- poker world an unusually fascinating place. tion unless you know the answer. Sounds Bellin makes no broad assertions about the right, of course, but can it be proven? Save transferability of poker skills. He does not 3 David Sklansky, Sklansky on Poker 64-65 (1999). 4 Ken Warren, Winner’s Guide to Texas Hold ’em 199 (1996).