Lawyer Article

Originally published in North Carolina Lawyers Weekly.

Last year's surprise summer ratings hit for ESPN was the World Series of Poker from Las Vegas. In December, Sports Illustrated named as its best sports book of the year James McManus's Positively Fifth Street, the author's account of his unlikely ride to the top table at the 2000 poker World Series. Poker is more popular today than at any time since Mark Twain left the Mississippi riverboats to become a full-time writer.

Recently I've been thinking about poker as more than just a game for chain-smoking gamblers wearing sunglasses and baseball caps. Instead, I've been considering the lessons that the game of poker provides for lawyers handling litigation and for their clients, the litigants themselves.

Occasionally, a great trial lawyer is described as a chess master, strategically moving his pieces and creating positions of strength. More likely, though, the superb trial lawyer is a sharp poker player. To point out the most obvious difference between the two games, computers now can routinely be programmed to beat the world's best chess players. Computers have fared much worse when playing poker. Poker, like litigation (and unlike chess), 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 unknowns; worse yet, bluffing leads to erroneous information. In the end, computers can only execute pre-programmed instructions and simply cannot respond with the nuance and flexibility of astute human players. The poker-playing computer is at the same disadvantage as a trial lawyer who handles every case "by the book." No matter how much certain clients might desire it, no one has yet figured out how to replace a trial lawyer with a computer.

The similarities between poker and litigation mean that poker can provide us with some instructive lessons for litigation:

1. Play the hand you're dealt. Every case, like every hand at poker, provides the lawyer with a certain set of immutable facts. What matters is how the lawyer plays that hand. Yet some lawyers (and many clients) spend time and energy in the pointless exercise of wishing those facts were different. In Texas Hold' Em, the version of poker played at the World Series, the vast majority of the possible hands one can be dealt are simply unplayable. Trying to play an unplayable hand is as foolish as trying to litigate a case that cannot be won. On the other hand, there's no shame in losing a hand that's well played. As a young lawyer, I was involved in antitrust litigation arising out of a corporate control contest. The object of the litigation, it became clear, was not so much to win as to buy time for a business solution. We managed to play our hand long enough to win without winning the litigation itself.

2. You pay to play. Every hand at poker has an associated cost in the form of antes, bets and raises. The same is true in litigation where clients and lawyers on contingency fees - in some ways, the ultimate gamblers - bear the real costs and fees associated with discovery, motions and trials. Those costs must always and at every point in time be weighed against the benefits of a potential recovery. Yet nearly every day, I have to work to get my clients focused on these cost-benefit analyses. Is it worth it to travel across the country to take one more deposition? How do we weigh the costs of another expert against the benefits? We all need to remember that neither poker nor civil litigation is played for its psychic benefits; both are played for money.

3. The role of luck. A poker player can astutely play the odds only to see his opponent beat those odds, by, for example, filling an inside straight (i.e., hoping against hope for a single card to turn up). Lawyers are often tempted to act - and talk - as if luck played no role in the outcome of litigation. Yet, if pressed, any lawyer with a sufficient number of years under his or her belt can regale you with stories of being the beneficiary (or victim) of luck. That luck can take the form of evidence stumbled upon or a judge who woke up on the right or wrong side of the bed. In one case in which I was defending a claim of trade dress infringement, a juror who was a furniture worker - and whom I had frankly written off as a non-entity - later told me that he had managed to convince the jury that the conduct of which my client was accused went on every day in his industry and therefore should not be actionable. The presence of luck means that a lawyer shouldn't be paralyzed with fear because he's not holding a four-aces case and similarly shouldn't assume that his opponent is holding one either. There's no shame in acknowledging the role of luck and the recognition of its presence can lead to a more realistic assessment of risk and reward.

4. Bluffing. Bluffing in poker involves deliberately conveying false or misleading information by betting heavily on a weak hand (to take just one example). While lawyers are required by ethical rules to be truthful in statements to others, bluffing is an important part of the litigation game. Lawyers can convey strength from weak positions in verbal and non-verbal ways of varying subtlety. Even taking a losing case to its bitter end can be a way for a lawyer to signal that he's not the type to give up, thereby raising the value of his successive cases. Lawyers who ignore opportunities to bluff, or that someone may be bluffing them, do so at their own and their client's peril.

5. Watch for the "Tell." A "tell" is poker jargon for a habit or physical reaction that inadvertently conveys additional information to a perceptive opponent. A player's trembling hands, averted eyes and slumping shoulders might tell you something important about his hidden cards. Tells of a type can also appear in litigation. Testimony, whether in court or in a deposition, can be a virtual laboratory of tells. By carefully listening to and watching a deponent, we can often tell when a witness is holding something back. By continuing to pick at the witness with further questions, I have often arrived at the point where the witness was finally forced to give me the complete story. In other instances litigants (or lawyers) have indicated to me by demeanor that they don't have the stomach to go through with a case. In one case in which dozens of party depositions were taken, a court reporter let it slip that plaintiffs' counsel wasn't ordering transcripts of his own clients' depositions. This was a sure "tell" for defense counsel that plaintiffs were not serious about their case and were ready to fold.

6. Room for different types of successful players. Despite our images of gamblers with white suits and string ties on the riverboats of yore and the prevalence of baseball caps and cigarettes at today's World Series, one cannot help noticing the diversity of today's great poker players. There are men and women, math majors and back-room players, African-Americans and Asians. So too in litigation there is room for virtually every type of lawyer to be successful. Nothing is more obvious - and obviously phony - than a lawyer trying to pretend to be some ideal image of a trial lawyer. Soft-spoken and academic lawyers can connect with judges and juries just as well as folksy or hard-edged lawyers. The lesson is to be the best lawyer we can be, given who and how we are rather than trying to be someone else.

Litigation is not a game. Its system is enshrined in our tradition; its rules in our Constitution and laws. It concerns client's liberties, livelihoods and sometimes lives. Yet examination of other disciplines, and even games, can help inform our understanding of the litigation process.

Press Millen is a member of the Business Litigation Practice Group.