Steve Lubet on "Lawyers' Poker"

David McGowan has kindly invited me to respond to his very thoughtful (and generous) review of my book, Lawyers’ Poker: 52 Lessons That Lawyers Can Learn from Card Players. First, let me say that David’s key insight – that the book is really about rational choice, cognition theory, and law practice – is exactly right. But please don’t let the word spread too far beyond these precincts, as that might foil the marketing plan.

Beyond that, I have only a few points to add:

David notes that a poker strategy based on expected value (play winners, fold losers) will in the long run "prevail over other, more idiosyncratic" approaches, but that is not quite right. A predictable strategy will result in only minimal profits, because other players will quickly learn to recognize a "rock" who only bets on sure winners ("the nuts," in poker slang). Thus, the truly optimal strategy is to appear idiosyncratic yourself, so that opponents can never tell whether you are bluffing or betting for value. In the book, I identify two essential rules for successful poker:

Rule One. Show strength when your cards are weak (so that opponents will fold), and weakness when your cards are strong (so that opponents will build up the pot).

Rule Two. Occasionally violate Rule One in unpredictable ways.

Along that same line, David observes that card players need to do more than "calculate expected gains and losses using Von Neuman-Morganstern utility functions," which is absolutely true. In fact, I have heard it said that Von Neuman was a regular poker player, but a very poor one. I once mentioned this trivium to an appointments candidate (an academic game theorist), and he refused to believe me.

"How could that be?" he said, "since Von Neuman could obviously calculate the correct odds in every situation."

"There’s lots more to it than that," I replied, "because you have to read the other players and anticipate their moves, or better yet, influence their decisions."

"But it’s still just a matter of figuring the odds," he insisted.

Explain as I might, he never got the point (or the job, for that matter, though I don’t think our appointments committee was heavily influenced by his poker naivete).

There are many lessons here for law practice, but one of the basic ones is that every litigation "move" is both an act and a signal. At a deposition, for example, there is a performative aspect to each question and answer – the production of information. But there is also a signaling aspect, in which each player reveals (or disguises) her intentions, in the hope of influencing here adversary’s reactions. Gathering information is good, but influencing the opposition’s settlement posture is better. (David suggests that this sort of maneuvering requires something "other than intelligence," but I think it’s more accurate to describe it as another facet of intelligence – albeit one that is not much appreciated in law schools.)

Finally, I must disclaim David’s fifth rule. He cautions that you should "Never, ever, EVER play cards with Steve Lubet," but in fact, I have to admit that I am not an accomplished card player. I have studied poker in depth for the purpose of applying its principles to law, but that doesn’t give me an advantage at the card table (you wouldn’t expect a Law & Literature scholar to be a great novelist, would you?) So it would be perfectly safe for you to play poker with me; in fact, you would probably take me to the cleaners. Unless I am bluffing . . .

Comments

[David Hricik]

Interesting thread, and insightful. I love it when I read something that I intuitively know, but haven't articulated to myself, as I did here: the fact that IQ matters enormously out of the gate, but other skills (or other facets of intellect, perhaps) then kick in and play a greater role.

Which got me pondering further about the issue noted in these posts: if the skills that make truly successful lawyers are not being taught in law school, can they be? Or, is law school not about that, at all?

Then I realized I was trying to avoid writing an article, and so I turned back to it, hoping someone would run with the idea further!

[toni]

This is very interesting site

[pokerstars marketing code]

i am so glad that you linked this to poker. what a great job.

[poker news]

i am not sure what to think but a great read.

[Ana]

hello