Litigation and Poker

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Steve Lubet kindly sent me his new book entitled "Lawyers' Poker: 52 Lessons that Lawyers Can Learn from Card Players", after we had a lively exchange about the:

a) the value of slow play at poker, and;

b) what trial advocacy lessons can be learned from a sophisticated analysis of poker play.

I was pleasantly surprised with well how this book worked.

My concern was that I would find two interesting books: a) one on trial advocacy, and b) another on poker analysis; and that the two parts would wear out each other like sandpaper and wood, contributing only a fine dust.

 

Prior to reading the book, I thought it unlikely that an analysis of poker strategies would provide insightful analogies to trial advocacy skills, skills that could not be obtained direct inspection.

 

What do poker players have in common with trial lawyers, anyways?

Succinctly, each has to solve the game theoretic question:

"if he knows, that I know that he knows ...".

The poker player has to solve this problem in connection with what the other players believe they know about his hand, what he believes they know about what he believes about their hands, and other various permutations.

 

(You could try your luck here, playing Texas Hold 'Em)

 

The trial lawyer has to solve this problem in connection with what the cross-examination witness believes what the lawyer knows about the facts, what the lawyer believes the cross-examination witness knows about the facts, and what the cross-examination witness believes about what the lawyer believes that the cross-examination witness knows about the facts, and other various permutations.

 

The poker player is at advantage since there is a set of facts which will soon be revealed: at trial, there are no sets of facts to be revealed until the Judge determines what facts there were.


If analogical explanations work, as a opposed to direct explanations, then the analogy must provide a quicker access to the problem.

One might complain, and this would be a superficial complaint, that the trial examples must be easier to understand than the poker examples because we are all potential jurors, but few of us are potential poker champions.


For example, in the beginning of the chapter on "Controlling the Opposition", Lubet describes the Johnny Cochrane gambit at the O.J. trial and the infamous glove scene and compares it with an example of "slow play".

 

After reading the two together, I was intially puzzled.

I understood Cochrane's move, but I really had to work hard at understanding the poker gambit.

How as a lawyer could I learn a trial advocacy point from a difficult poker problem, when I comprehended the trial example directly?

 

But, after working through the poker example, I realized that I had only superficially understood the trial advocacy gambit, and not appreciated all of the elements and what Christopher Draden should have been wary of.


Let me first review the poker example on slow play on pages 86 to 87, hardcover version.  

WARNING- THIS NEXT BIT IS HARD.

Lubet recounts the story of Monty, a player who played hands only on their expected value, against a fellow named Solcum, a wealthy banker's son.

They were playing 5 card draw, one hidden card and four exposed cards, with four rounds of betting.

 


Round 1: M: Shows 7 S: Shows 7

M bets $5

 

 

 

Round 2: M: Shows 7 7 S: Shows 7 A

M bets $10, S raises $20,

and M calls.

 

Round 3: M: Shows 7 7 5 S: Shows 7 A 10

M checks, S bets $50, and

M calls.

 

Round 4: M: Shows 7 7 5 Q S: Shows 7 A 10 10

S bets $100, but M raises $1500.

 

What would you think that if you were S and your hidden or hole card was an A, giving you the highest possible two pair?

How would you analyze what M's bet was telling you? Assume that M and S know that it is not possible for S's hole card to be a 10, since the two other tens had shown.

 

Think carefully.


Well, I would react, and not think, that M had picked up his queen and had queens and sevens, which would lose to my aces and tens.


I would rationalize that M bet small and didn't raise because he feared but didn't know I had an Ace, but when M hit his big cards, he beat big.

I would call the raise and rake in the pot.

And, I would lose, because M had the last 7.

I lost because I looked only at the last round of betting to see what "information" it revealed.

I probably heavily discounted the possibility that M had the last 7, and so "knew" I had a lock. (In case it isn't obvious, I am dead poor average player in a good game.)


What did the betting in round 2 show, given that M only plays on with hands that he has an advantage with?

If S knew that M knew that S's hole card was an A, should S believe that M would fold? Yes.

And M didn't fold or bark in the night.

Therefore, M had a hand that beat a pair of Aces, in round 2.

The only hand possible was three sevens.

But would you have been disciplined enough to fold your hidden pair of Aces? Not me.

 

Turn to the trial problem. Should have Christopher Draden known that Johnny Cochrane knew that glove wasn't going to fit?

Don't know - but the point of the poker example, having worked it through, is this: did Christopher Draden ever stop to question whether Johnny Cochrane could know that the glove wasn't going to fit?


Not such a stretch, when you ask the question. What did Cochran know about the glove, given his daily interactions with accused? Darden should have stopped to think about the relative asymmetry in knowledge, made a few deductions, before forcing the play on.


That knowledge is worth the price of buying the book, Lawyers' Poker: 52 Lessons that Lawyers Can Learn from Card Players

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