Thank you for sharing!

Your article was successfully shared with the contacts you provided.
There is a deep symmetry between litigation and poker, both of which involve competitive decision making with incomplete information. Lawyers must make a constant series of decisions based upon a mix of available and unknown facts. The most obvious decision is whether to settle or to proceed to trial, but there are also many other, smaller decisions along the way � which depositions to take, which motions to file, which theories to pursue, which questions to ask � each one influenced to one degree or another by opposing counsel’s behavior. Poker games are much the same. Each player must continually decide whether to raise, call, or fold without seeing some or all of the other players’ cards. There is a certain amount of public information in the form of exposed cards (except in draw poker) and, more important, in the betting behavior and physical demeanor of the other players. The key strategy in poker is almost always to deceive the other players by misrepresenting your own cards � often by showing strength when your cards are weak (thus bluffing your rivals into folding their hands) or by showing weakness when your cards are strong (thus encouraging the other players to keep betting when they cannot win). Even honesty in poker is deceptive. A strong hand played strongly allows you to bluff more easily later in the game. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent tends to separate the winners from the losers. In poker, every mistake costs money. A card player of even moderate skill usually knows instantly when he has misplayed a hand. What’s more, he is immediately able to calculate the exact cost of the mistake. Because poker involves a relatively small number of variables � there are only 52 cards in the deck and only three possible moves in each round of betting � a player can assess every aspect of his game ruthlessly and with considerable accuracy. It is hard to keep kidding yourself in serious poker. You either win or lose. Lawyers have considerably more trouble with self-assessment, however, and not only because of ego involvement and self-delusion. Every lawsuit has thousands of factors, and no case exactly duplicates any other. Most litigation comes to a fairly indeterminate end via settlement, while ultimate negotiating positions remain unrevealed. Often it is difficult to say whether, and to what extent, you have truly won or lost. Even in those cases that go to verdict, producing a clear winner, there is no easy way to identify which decisions worked and which failed. In law practice, the many, many dependent variables defy isolation. Consequently, even the most well-recognized truisms cannot be completely validated or falsified. Never ask a question unless you know the answer. Sounds right, but can it be proven? Unlike lawyers’ assumptions, poker maxims are constantly being tested and refined, which makes poker wisdom a great strategic guide for litigators. Many poker principles are based on clear mathematical calculations, and others have been validated in practice. Poker is played by as many as 60 million Americans (many of them lawyers), and every player has a cash incentive to improve the quality of his play. . . . And, just like litigation, poker is all about winning. There are many poker tactics that can be applied to comparable situations in law practice. In fact, [lawyers] frequently borrow [from] the language of poker to describe litigation. Almost every case begins with negotiation, when you really have to “keep your cards close to your vest.” Of course, you will make a reasonable offer “for openers,” realizing that you might eventually have to “sweeten the pot.” But however much money there is “on the table,” there is no reason to “tip your hand” until the “showdown.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.