Lawyers' Poker

reviewed By David Frazee

Poker requires a player to evaluate and take risks based on a complex mixture of known and unknown information, which makes it an irresistible lens for studying legal practice. Steven Lubet, a law professor at Northwestern University and an expert on trial strategy, seized this opportunity in Lawyers' Poker: 52 Lessons that Lawyers Can Learn from Card Players.

Lubet divides his lessons into four suits, with associated themes: Diamonds ("Maximizing Your Winnings"); Clubs ("Controlling the Opposition"); Spades ("Digging for Information"); and Hearts ("Ethics and Character"). Each suit naturally has 13 lessons, each with its own story.

Litigators and poker players share a love of telling great stories, and Lubet is a great storyteller. He artfully draws lessons from poker for litigation, such as analyzing the expected return, minimizing losses, controlling and predicting the behavior of one's opponent, and winning the battle of asymmetrical information.

Contrary to the mythology of popular culture, poker and litigation both involve hours of drudgery punctuated by brief spasms of panic. Just as ESPN does not show 16 hours of folded hands on the table at a World Series of Poker final, Boston Legal understandably declines to showcase document review. However, victories in both litigation and poker are often won with small, incremental details, accumulated over hundreds of hours.

Lubet argues that our brains make us ill-suited for many aspects of games like poker and for litigation. Our memories are unreliable and easily fooled. We distort information to fit our preconceived biases. Poker and litigation alike trick the human brain into learning the wrong lessons, in the same ways that great tactical decisions often lose and boneheaded plays sometimes strike riches. Although most of us believe ourselves to be great at spotting liars, we are often only half right - no better than random guessing. But rather than despair about the legal system, Lubet counsels adaptation: Tell vivid stories, frame facts, and understand the psychology of your audience.

The author recognizes that poker is an imperfect analogy for litigation practice. In poker, deception is always present, while legal ethics require some candor and good faith. Lubet could also explore the many false lessons of poker: Unlike life or law, it truly is a zero-sum game. But extraordinary outcomes are possible in business the moment the parties let go of false notions of winning and losing - when they stop thinking of business as a zero-sum game.

An interesting question Lubet could have explored but didn't is, what if litigation were more like poker? Poker maintains symmetry: One cannot win more from another player than one risks ("table stakes"), and bets are always subject to loss. That is, one cannot win $10,000 of another's chips at a poker table by wagering only $5. But this is exactly how litigation works, and many plaintiffs have little downside. Of course, damages are rarely symmetrical in disputes, but because losing plaintiffs do not pay under the U.S. system, nuisance suits are ubiquitous. And because of the cost of legal fees or the risk of what an essentially random jury outcome might be, litigation often more resembles extortion than poker.

If there is a major fault in the book, it is that virtually all of Lubet's lessons derive from litigation (and often discovery) practice, even though there are better examples from transactional and business legal practice. He also misses a rich intellectual vein by ignoring the work of modern poker theorists, who rely on sophisticated game theory, unorthodox statistical calculations, highly exploitative plays, and hyper-aggression.

Despite these criticisms, Lubet succeeds in writing an accessible book of stories for lovers of law and poker alike. This book will appeal most to litigators looking for a few poker and trial practice tips, but it will entertain and educate anyone with a passing interest in the "game" of law.

David Frazee is a partner in the Menlo Park office of Perkins Coie. He won a $10,000 entry into the 2006 World Series of Poker Main Event by beating 490 players in a satellite qualifier.

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