I have been working on a couple of articles that try to integrate legal ethics, rational choice theory, and cognitive decision theory (my term for work in social psychology, behavioral and experimental economics, cognitive science, philosophy, and neuroscience that elaborates on and qualifies rational choice theory). The upshot of this work is that affect and reason go together, and rational choice is necessary but not sufficient to talk about judgment. (Adam Smith said all this in 1759, in The Theory of Moral Sentiments (the first work of behavioral economics), but now we have brain scans to prove it.)
So I’m working hard to integrate all these things in a readable and practical way, when I open my mail and find a review copy of Steve Lubet’s Lawyer’s Poker: 52 Lessons That Lawyers Can Learn From Card Players. Now, I don’t play cards. Never have; never will. I am baffled to the toes by the poker craze of the last few years. I mean, watching TV is bad enough, but watching people sitting around a table trying to look expressionless? Good grief.
But I do know three things about Steve Lubet: (i) He’s smart as a whip; (ii) he writes beautifully (he is the only law professor I know whose writing has been complimented by Larry McMurtry, which is a bit like having George Foreman say you pack one helluva punch); and (iii) he always says something interesting. (Update--you can find some more of his writing on law and poker here.)
So I read the book, and I’m going to throw in my two cents on it (the highest stake I’ll ever play). I’ve asked Steve to post a response, and he’s agreed.
Here’s the short of it: Don’t be fooled by the cards on the cover, the colorful accounts of “Texas Dolly” Bunson and Puggy Pearson, or even the appearance of Legally Blonde and My Cousin Vinnie. Using poker as a leitmotif, Professor Lubet has written a book about integrating legal practice, rational choice theory, and cognitive decision theory. He is talking about exactly the things needed to help lawyers and students develop the most important skill they can have: good judgment. And he does it with a clarity and succinctness that is truly elegant.
More specifically, Professor Lubet’s book is about the most difficult and most important aspect of judgment: how you make choices when dealing with other people who are acting in part based on their perceptions of you and how you will act. Even a non-card player like me can appreciate the strategy of discussing this aspect of judgment in a form many people can appreciate more than the more formal apparatus of game theory.
Now for the long of it. The baseline for Professor Lubet’s analysis is rational choice theory. You maximize expected gains, minimize expected costs, and calculate each based on the information available to you, including both the fixed elements (the cards in the deck and their possible combinations) and the variable ones (other players). Ignore sunk costs; keep your cool. The lesson here is that, in the long run, this strategy will prevail over other, more idiosyncratic ones.
In the short run, of course, the most rational player in the world can lose a bundle to the lucky fool. So a top player needs more than the ability to calculate and implement rational strategies: She needs the wherewithal to withstand losses when she has played perfectly but not had the luck of the draw. That is a very different quality than is needed to calculate expected gains and losses using von Nuemann-Morganstern utility functions.
And, as Professor Lubet shows over and over again, the truly successful player needs one more quality. He has to make other players believe things he wants them to believe so they act in ways he wants them to act.
At a general level, this is the most important point in the book. In poker, as in law and life, you are part of every judgment you make. Your temperament influences your judgment, a fact you have to be aware of, but you also have to remember that your best choice depends on what some set of other people do. And what they do depends on what they think you will do, etc., etc. Professor Lubet’s lesson—that a player’s actions represent to other players a story the player wants his opponents to believe—is as crucial as it is generalizable.
Poker and law are different, of course. In poker, deception and cold-bloodedness are unambiguously good. That is not true in law. Professor Lubet is scrupulous in drawing just this distinction, however, and even points out a rule of poker—the cards win even if players fail to realize it—that is cleaner and in some ways more honest than litigation.
Poker also presents cleaner probabilities than law. You know there are 52 cards, and can calculate probabilities based on that fact. You also know who the other players are. In law and life you have to figure out for yourself who is in the game, what choices they have and, vitally, what the other players are likely to do given the sort of players they are. Some of this is obvious, but a lot of it is not, and no one flips a card at the end of the day to tell you whether you were right.
But this difference reinforces rather than dilutes Professor Lubet’s point. Perspective, and a feel for affect as well as logic, is especially important when you have to ascribe the payoff structure rather than take it as given.
In the spirit of academic reviews, I have a couple of quibbles with the book. It focuses on litigation to the exclusion of transactional work. Deal-making is arguably more similar to poker than at least civil litigation, with its endless discovery and pre-trial procedure. The book also tends to focus on interactions between opposing parties. Its lessons can be applied within firms, though, and they need to be. More than one lawyer has found trouble because the real enemy was the partner she worked for.
(Two other, nonsubstantive, quibbles. How could a book like this leave out Paul Newman’s unforgettable bluff in Cool Hand Luke, and doesn’t The Princess Bride deserve honorable mention for its “Battle of the Wits” scene, even if it’s not about poker?)
Finally, the book also poses a problem for legal education by rightly implying that there is a lot more than brains to successful lawyering. In the real world of practice, returns to IQ are initially quite steep but flatten quickly. Highly successful lawyers have to be very smart, but there are a lot more smart lawyers than highly successful ones. Some things other than intelligence distinguish the two, and Professor Lubet’s book can be read as an illuminating tour of what those other things might be.
For me, at least, that poses the question whether we can help our students acquire these other skills, or at least to determine that they do not have them, so they can avoid career paths that ultimately will not suit them. Perhaps we can’t do anything about it, but it does seem to me worth thinking about.
My quibbles call for extending the book rather than altering it, so consider this an advance order for the second edition. In the meantime, I am glad to add Professor Lubet’s cleverly disguised poker treatise to the shelves I devote to rational choice theory and the cognitive decision theory that goes beyond it. You can find it there—with the following rules inked on the inside cover. Call them McGowan’s variations on a theme by Lubet:
1. Never play a game you are not temperamentally suited to play.
2. Always remember that people read and react to you just as you read and react to them.
3. Never confuse luck for skill.
4. Never marry a professional card player.
5. Never, ever, EVER play cards with Steve Lubet.
DM