It is amazing the criteria which people use when selecting a litigation attorney. Many people rely upon the advice of a friend which are sometimes people that the person making the selection really do not know very well. Moreover, it appears that the general public is routinely impressed with lawyers with degrees from Ivy League institutions. The terms “Partner,” “Chairman,” or “Department Head” seem to have tremendous resonance with consumers of legal services. Corporate general counsel often rely upon “big firms” to handle their legal work, as if there could ever be more than one lawyer at a time who addresses the Judge or the Jury.
I wonder how many people ask prospective litigation counsel, during the initial interview: “do you play poker and, if so, do you routinely win ?” I strongly recommend asking this question the next time you interview litigation counsel and here is why.
- Litigation is Poker.
Litigation and poker really are the same thing. Why ? Each involves strategy, gambling, the calculation of odds and the constant reassessment of changing circumstances in order to arrive at the best possible outcome which is, most of the time, winning. Let’s take a look at some analogies between the science of litigation and the game of poker and how lawyers can and should apply these lessons.
Bluffing is defined as: “To impress, deter, or intimidate by a false display of confidence..” Lawyers are not permitted to mislead or deceive the Court. Nonetheless, there is nothing which prohibits a lawyer from displaying confidence. This often occurs through calculated bluffing. The purpose of bluffing in litigation is to convince your opposing counsel and/or the opposing party of the strength of your position. This is a skill which is often learned or honed at the poker table.
In order to do this, the lawyer has to first assess the client’s position. In other words, the lawyer has to be able to look at the cards. Do you have three Aces in a five card game (a good poker hand) or do you have a pair of deuces in the same game (a very mediocre hand).
Counsel cannot change the cards you have been dealt. Counsel can, however, change how the hand is played. Consider the pair of deuces in the five card game, generally recognized as a weak hand. Most often those cards are dealt “down” so that no one can see them other than the player (at least at the beginning of the game). The same applies in litigation, at least before discovery commences. Only the lawyer knows the strength or weakness of his or her client’s hand. The key is that, if counsel has a weak hand, he should not let the other side know it. It is perfectly acceptable to tell the other side that your hand is strong and you plan to win.
Counsel should believe what they say and be confident. If counsel is more confident than his or her adversary, the adversary is more likely to believe it. In that event, counsel will have successfully bluffed. In some instances, this quality is even more important than an Ivy League Education.
3. Game Changers
Notwithstanding the cards counsel has been dealt, things happen during the course of any lawsuit, or in the midst of any poker hand, which changes the analysis of the strength or weakness of the case. A good lawyer, or a good poker player, is constantly reassessing the case. A good example of this in Poker is the game of “Follow the Queen” which is a variation of seven stud poker. In this game, players are dealt four cards face up and three cards face down. When a Queen is dealt to a player face up, the card that follows it is deemed “wild” or, in other words, it can be matched against any other card to create a pair and improve your hand. So, if player “A” is dealt a Queen, and player “B” is dealt a three, suddenly threes are wild.
The problem with Follow the Queen is that, as in life, things change. Thus, if another Queen is dealt face up after the initial queen, and a two card follows the new Queen, all of a sudden “threes” are no longer wild, now “twos” are wild. Everything changes in an instant. Your odds of winning, particularly if you had a three in your hand, must be adjusted. Now the odds of winning for players holding a three has suddenly and dramatically decreased. Conversely, the odds of winning for those players lucky enough to be holding a three correspondingly increase.
The same thing routinely happens during the course of the average lawsuit. For example, witnesses recant their testimony, documents emerge during discovery which hurt your case and previously unassailable witnesses are caught in irreconcilable inconsistencies by opposing counsel at a deposition or at a hearing. The good lawyer does not fold up the tent in those instances. The good lawyer is able to adjust his or her strategy to the change in circumstances. The good lawyer then gets to work on figuring out how to re-position their case to their client’s best advantage.
The list of skills mastered during the life of the average poker player which applies to litigation could be the subject of an entire treatise. This article simply lays out several examples. The ability to assess the odds, bluff, and reassess strategy are key attributes of both the successful litigator and the successful poker player. At some point, the lawyer’s Ivy League Education, his or her law review membership or title in the firm become less important. What matters most is whether the lawyer knows how to win. And they don’t teach that in law school.