Litigation and the game of poker

As we note in our 2012 working paper The Poker-Litigation Game, the process of legal litigation shares many important features in common with the game of poker:

1. Both poker and litigation are strategic games, that is, competitions in which the players/litigants must make their choices and decisions independently of each other.

2. Both activities are zero-sum or non-cooperative games in which the economic interests of the players/litigants are opposed. (Of course, although both parties in a given legal case may have a strong interest in settling rather than going to trial, we submit that this does not change the overall adversarial nature of the legal process.)

3. Both are games of incomplete information–just as a player in a game of poker does not know with certainty when another player is “bluffing,” a litigant in a civil or criminal case may not know with certainty the strength of his adversary’s case during pre-trial negotiations. (As an aside, there is no doubt that pre-trial discovery rules are designed to reduce this level of uncertainty in litigation, but it’s not clear to us by how much this uncertainty is reduced by modern discovery.)

4. Both games involve substantial elements of chance or luck: e.g. random assignment of the cards in poker; random selection of judges in civil and criminal cases. (Even the process of jury selection is somewhat random, based more on guesswork and hunches than anything else.)

Can you think of any other similarities or differences between the game of poker and the process of litigation?

 Litigation hold’em?

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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2 Responses to Litigation and the game of poker

  1. Stacey P says:

    One concept that is analogous to both the process of litigation and the game of poker are the rules. The legal system is built within jurisdictions and they very from federal, state, district, county, and city. With each jurisdiction varying slightly frorm the last. Each jurisdiction varies in nuisances; one state calls the act of driving an automobile drunk: DUI (Driving Under the Influence) where as another refers to the crime as DWI (Driving While Intoxicated).
    The game of poker is played with several different styles of play. My family plays hands such a “Seven Card No Peak” (where each player is dealt 7 cards face down and no one gets to see their cards before betting), “Baseball” (based on a 5 card draw format but with 3, 6, and 9 cards being wild cards), or “Jackson 5” (again, based off of 5 card draw format but with all Jacks and 5 cards wild), etc… Poker rules vary by location, general player experience/knowledge of varying rules, and house rules (such as $.05 anti- your hand is what you call it- or three raise maximums per hand).
    As you previously stated, both the legal system and playing the game of poker involve risks and surprise. I thoroughly enjoy them both.

  2. enrique says:

    That is an excellent observation–both activities are games with RULES, and as you note, there are many variations in the rules of each game. I would add two points: 1) in spite of the variations, there is a “family resemblance” (to borrow the philosopher Ludwug Wittgenstein’s famous phrase) among all the different variations of the poker game (or the litigation game). 2) Another related similarity between poker and litigation is the role of the dealer versus the role of the judge. In both games, we need a third “player” to interpret and enforce the rules !

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