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There is an old and deep symmetry between litigation and poker, which will be recognizable to any lawyer who ever anted up, sweetened the pot, kept his cards close to the vest, or played her ace in the hole. The connection goes back more than 100 years, as we can see from this story told to me by San Francisco writer Sarah Stegall, about her great-grandfather. As Stegall recounts it, her great-grandfather was a young lawyer eager to begin practice when he moved to Texas in the early spring of 1888. Few formalities and no official bar exam existed in those days. Instead, to gain admission to practice, each aspiring attorney had to appear for a personal interview before the Texas Supreme Court. Our protagonist made his way to Austin, apprehensive but ready for what he expected to be a rigorous examination by the notoriously hard-nosed justices. Surprisingly, however, they asked him only four questions: Had he studied Blackstone? Did he read the Bible? Did he know his Shakespeare? And could he play poker? The first three questions were easy to understand. Blackstone’s Commentaries was the basic reference book for lawyers everywhere — and on the frontier it was often just about the only source available. The Bible and Shakespeare, of course, were essential to understanding human nature, a necessary quality for successful law practice (then as now). But the poker question made him nervous. Gambling was a vice, so he was worried that the justices were accusing him of immoral conduct. Still, he had to answer honestly. The lawyer reluctantly admitted that he was a more-than-occasional seven-card-stud player, fearful this might disqualify him in the eyes of the Texas justices. To his relief, however, they admitted him to practice on the spot. Once he was safely sworn in, the young lawyer got up the nerve to ask the court about the poker question. “Your Honors,” he said, “I know why you inquired about Blackstone, Shakespeare, and the Bible. But what on earth does poker have to do with the practice of law?” The chief justice looked down from the bench and sternly replied, “Young man, how else do you expect to make a living during your first three years as a lawyer?” The chief had a good point. Lawyering could be an uncertain enterprise in the thinly settled West, with paying clients few and far between. Most attorneys could not survive without a sideline, whether it was ranching or dishwashing. There was no way to know if this particular fellow would be any good at running cattle or cleaning plates, so the justices helpfully suggested that he turn to poker, figuring that anyone tough enough to practice law in Texas would also be pretty sharp at the card table. PLAYING SLOW That assumption was right on the money, since poker, like law practice, involves tactical decision-making based on incomplete information, in the face of uncertainty. The great poker players are masters of their art, and there are plenty of lessons that lawyers can learn from card players. Consider, for example, the concept of “slow playing,” a betting strategy — rather, a nonbetting strategy — intended to forestall your opponents from folding their losing hands. When holding sure winners (“the nuts,” in poker slang), a huge opening bet may cause most or all of the other players to throw away their hands, meaning that you will win a small pot despite your great cards. So, instead of betting heavily in the early rounds, you can simply check or call others’ raises, thus keeping your opponents in the game and building up the pot. Successful slow playing requires that you give nothing away about the strength of your hand while encouraging others to believe their hands are likely to win. Though trial lawyers are frequently accused of bluffing — trying to build a case out of thin air — the more artful advocates have tended to make greater use of slow playing, especially during cross-examination. LOOK AT LINCOLN A wonderful story is told about the young Abraham Lincoln during his days as a trial lawyer in Springfield, Ill. The future president was representing a defendant charged with biting off another man’s nose during a late-night fight. The prosecution presented a single witness to the incident, who testified convincingly that Lincoln’s client had indeed committed the atrocious assault. On cross-examination, Lincoln set out to show that the witness could not have seen all that he claimed. Q: The two men were fighting in the middle of a field? A: Yes, they were. Q: But weren’t you on the edge of the field, looking back at the farmhouse? A: I guess I was. So far, the cross-examination had gone swimmingly. But then the gawky Lincoln appeared to make an amateur’s mistake by asking the dreaded “one question too many.” Q: Then how can you say that you saw my client bite off the other man’s nose? A: Because I saw him spit it out. That seemed like a disaster, showing a terrible weakness in Lincoln’s case. But, in fact, he was slow playing, setting a trap for the assertive witness. Q: Well, then, how could you see so well in the dark? A: I could see by the light of the full moon. Following the witness’s cocksure reply, Lincoln at last revealed his winning hand. Displaying a copy of the Farmers’ Almanac, he established that there had been no moon at all that night. The witness had shown himself to be a liar! A less talented lawyer might have started the cross-examination by asking the witness about the moonless night. But that would have put the witness on guard, causing him to moderate his testimony while still incriminating the defendant. Instead, Lincoln brilliantly played the bumbler, luring the witness into an obvious (and provable) lie, which ended up destroying the prosecution’s case. His skill at slow playing may have been the key to Lincoln’s success in politics, as well, as his disarming demeanor often caused adversaries to underestimate him. GORED! More than 150 years later, another lawyer used the same technique in a case that eventually determined the presidency itself. After the 2000 presidential election, the entire country watched in fascination as the Florida courts attempted to sort out the mess. The Gore campaign alleged that flaws in the punch-card voting machines resulted in thousands of so-called undervotes, ballots that had been duly cast but not tallied. The Bush campaign countered that the machines had worked properly and that no further recount was necessary. The first stage of the litigation took place in the Tallahassee courtroom of Judge N. Sanders Sauls. In their discovery response the Democrats named Nicolas Hengartner, then a professor at Yale University, as an expert witness on statistics and demography. According to Hengartner, the large number of undervotes in Palm Beach County was so anomalous that it could only have been caused by machine malfunctions, rather than random voter error. His opinion, based on an analysis of both 1998 and 2000 voting patterns in Palm Beach County, strongly supported the Democrats’ case for a manual recount. The Republicans were represented by Philip Beck of Chicago’s Bartlit Beck Herman Palenchar & Scott. In the course of their pretrial investigation, the Bush team had discovered a mistake in an affidavit that Hengartner had prepared at an earlier stage of the case. The expert had based his opinion about the prevalence of undervotes on certain erroneous assumptions about the design of the 1998 Palm Beach ballot. This mistake completely undermined Hengartner’s opinion because it demonstrated that he relied on the 1998 ballots without ever having seen one. Beck knew that the actual 1998 ballot would be devastating to Hengartner on cross-examination. Some lawyers would have confronted Hengartner with his error at the first opportunity, hoping to unnerve him before he testified at trial. In this case, Beck had the chance during Hengartner’s 90-minute discovery deposition. Beck, however, decided to slow-play. The mistaken affidavit was Beck’s ace in the hole, and he had no intention of revealing it through aggressive questioning. Using the ballot reference during the deposition would only have allowed the Democrats to fold their hand, leaving them numerous options. They might have found another expert to replace Hengartner, they could have proceeded without an expert statistician, or, forewarned, they could have pulled the stinger by addressing the mistake during Hengartner’s direct examination. Beck, of course, wanted Hengartner to testify expansively, knowing that his overconfidence would end up damaging the Democrats’ case. He therefore assigned the deposition to a young colleague with the stern instruction that he should “not ask a single intelligent question.” The lawyer took his orders to heart and proceeded to interrogate Hengartner about nothing more substantive than the textbooks he used in his classes at Yale. When he was called at trial, Hengartner confidently testified on direct examination, explaining his comparison of the 1998 and 2000 voting patterns in Palm Beach County. Cross-examination was a different story. Beck asked the witness whether he had ever studied the 1998 ballot design. “Not closely,” answered Hengartner. “In fact,” continued Beck, brandishing the ballot, which the Gore lawyers evidently had never seen, “you never actually examined it at all.” With that, Hengartner’s testimony foundered. The basis for his opinion, as well as Al Gore’s hopes for the presidency, was thoroughly undermined when Philip Beck finally showed his hand. Judge Sauls ruled against the Democrats, and his decision ultimately played an important role when the U.S. Supreme Court ruled in favor of George W. Bush. As any card player would tell you, that was one great — though very slow — play.
Steven Lubet is a professor of law at Northwestern University. This column is adapted, with permission, from his forthcoming book, Lawyers’ Poker: 52 Lessons That Lawyers Can Learn From Card Players . This column first appeared in the ALM magazine The American Lawyer .

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