In the News - Full Article
Virginia Lawyers Weekly
PRACTICING LAW IS A LOT LIKE PLAYING POKER
By: Press Millen
Lawyers' Poker: 52 Lessons that Lawyers Can Learn from Card Players
Let's start with the obligatory caveat: law is not a game. It's a serious business about life, liberty (and money). The judges wear black robes, for crying out loud. Now to the message: law, especially, litigation, has more in common with poker than you've ever imagined. Not only that, poker can offer illuminating lessons for how we practice law.
Steven Lubet, a law professor at Northwestern University who teaches trial strategy and practice, seeks to capture those lessons - 52 in all (like the number of cards in a deck) - in his new book published by Oxford University Press.
At the start, many lawyers will resist the idea that they can gain insights into the practice of their profession through comparisons to a low-rent game like poker. Recall though that everything from the study of economics to the Cold War nuclear policy has been guided by a branch of mathematics known as game theory. If the theory of games played a role in nuclear strategy, is it crazy to think that we can get some new ideas about handling cases from examining how poker is played at its best?
The numerous similarities between poker and litigation provide us with the lessons for litigation. Beginning with the most obvious similarity, poker, like litigation, presents each player with incomplete information in the form of cards held face down by opponents or still undealt from the deck. Every situation presents a range - usually a wide range - of unknowns. To make things worse, bluffing leads to erroneous information both in poker and in litigation. (Yes, lawyers bluff.)
To organize his lessons, Lubet divides the book into four sections, each representing an important aspect of poker and law: Maximizing Your Winnings (Diamonds), Controlling the Opposition (Clubs), Digging for Information (Spades), and Ethics and Character (Hearts). Each section comprises 13 lessons illustrating those broader points. While some readers will no doubt find the book's organization overly contrived, it nicely fits together within Lubet's larger theme, namely to learn what we can about the connection between poker and litigation and to have some fun in the process.
The lessons are indeed instructive. For starters, although many lawyers would deny it, luck plays an important role in litigation as in poker. Yet in both places, it's the experienced, skillful and well-prepared who can actually take the most advantage of a bit of luck. For lawyers, as Lubet puts it, luck can be the intersection of "preparation and opportunity. " Another area of overlap can be found in the poker concept of "tilting. " In poker, tilting occurs when a player - often a player who is playing by the book - hits a nasty losing streak. Instead, of sticking to the book, though, a player going on a tilt starts to play overly aggressively in an effort to win it all back quickly. Watching a lawyer tilt in a courtroom after a series of setbacks is not a pretty sight. Taking your losses well, and living to play another day, works in the card room and the courtroom.
Along those same lines, everyone - at least everyone who's heard Kenny Rogers' song "The Gambler" - knows that poker players have to know "when to fold 'em," meaning giving up on a hand that's probably going to lose. The same holds true with lawyers, especially lawyers cross-examining a tough witness at trial. Sometimes, the only way to keep from digging yourself deeper into a hole is to stop digging. That's a lesson I've learned in court and at cards.
Other times, however, a great cross-examination is just like drawing players into a pot they can't win. In poker, it's called "slow-playing" and it means betting modestly - or sometimes not betting at all - in order not to scare the other players into folding before the pot can build up some serious dough.
Lubet describes the classic "slow-playing" of an expert in Bush v. Gore. One of Bush's lawyers, Philip Beck of Chicago, realized that the expert's entire opinion was based on erroneous assumptions about the design of the infamous Palm Beach County ballot. Rather than confronting the expert with the mistake at deposition or even at the outset of his trial testimony, Beck got the expert good and tied down and then proceeded to demolish him live on national television.
Other dual lessons abound including the dangers of overplaying your hand (or case), making greed work against your opponent, the virtues of patience, and the importance of the principle - equally valid in both arenas - that "Knowledge is Power. " Lubet also shows how trying to win all the time is the surest way to lose. Each of these lessons is illustrated with stories from famous poker players and the classic trials of American and British history from Oscar Wilde's libel case against the Marquess of Queensberry to Sacco and Vanzetti's murder trial to Clinton v. Jones.
There's also the story of Greg Raymer, who, while practicing as a patent lawyer for a major pharmaceutical company, won the 2004 World Series of Poker. Raymer credits the attention to detail he learned as a patent lawyer with his success at the poker table. (After winning over $5 million at the World Series, Raymer quit his day job and became a poker professional.)
These parallels, of course, can only be taken so far. Litigation and poker each have their rules and participants must play by those rules. In the case of litigation, there are books full of rules. In poker, the rules permit - even encourage - in Lubet's words, "deception, concealment, subterfuge, trickery, and outright lying. " And because poker requires duplicity, "it can never provide a comprehensive model for life or law. " One of the great poker-playing lawyers was Richard Nixon, who financed his first congressional campaign from his poker winnings, but who ultimately bluffed once too many. When the Supreme Court ruled against him U.S. v. Nixon, he had no choice but to fold and head back to California.
Nevertheless, both litigation and poker provide the stuff of great stories. Whether it's F. Lee Bailey "slow-playing" Mark Fuhrman into the lie that would blow up the O.J. Simpson case or Nick the Greek winning $500,000 from Johnny Moss on a single hand by improbably drawing a jack as the final card. The enjoyment in reading this book lies outside the didactic lessons of comparing poker to litigation and instead in simply reveling in the fun of hearing tales of poker and trials well told.
