Strategic thinking moves critical thinking to action within a competitive environment. Our strategy is to teach strategic thinking by engaging teacher and students with the play and understanding of strategic games. This extends the strategy of "What's going on here?" "What do you see that makes you say so?" to competitive rigorously defined game and puzzle situations, and invites a progression of integrated mathematical and psychological thinking skills.
Progression is from simple games of complete and certain information to complex games of incomplete and uncertain information, zero and non-zero sum.
Understanding means not only learning to play the game, but also learning its structure, how to conceptualize it, how to solve it, how to program it, how to understand the legal and cultural environment in which it is played, how to apply the lessons from the play and understanding of games to other walks of life.
- TENDERFOOT: Is this a game of chance?
- W.C. FIELDS: Not the way I play it.
John McDonald (1950)
John von Neumann published his first paper on poker in 1928 when he was twenty-three. When the paper appeared, it created a sensation among mathematicians. It grew -- with the collaboration of Oskar Morgenstern -- into a major work on the character of games as models for society.
The theory of games provided a new mathematical approach to economics. Tranditional language derived from mechanics. The application of mathematics to economics -- in contradistinction to its application to physics -- needed new principles of mathematics which could be established only where assumptions were known. Won Neumann [saw that in poker each player's success depended not only on his own moves but also upon the moves of others.] To the young mathematician this interdependence appeared identical with the situation encountered in the social economy.
Von Neumann saw in poker not only an identity with an aspect of society, but a complete set of workable assumptions -- the rules of the game -- with which to go to work on the problem of rational behavior in a competitive environment.
Lawyers must make a constant series of decisions based upon a mix of available and unknown facts. The most obvious decision is whether to settle or to proceed to trial, but there are also many other, smaller decisions along the way-- which depositions to take, which motions to file, which theories to pursue, which questions to ask -- each one influenced to one degree or another by opposing counsel's behavior.
Poker games are much the same. Each player must continually decide whether to raise, call, or fold without seeing some or all of the other players' cards. There is a certain amount of public information in the form of exposed cards and, more important, in the betting behavior and physical demeanor of the other players. The key strategy in poker is almost always to deceive the other players by misrepresenting your own cards -- often by showing strength when your cards are weak or by showing weakness when your cards are strong. Even honesty in poker is deceptive. A strong hand played strongly allows you to bluff more easily later in the game. The best players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent tends to separate the winners from the losers.
In poker, every mistake costs money. A card player of even moderate skill usually knows instantly when he has misplayed a hand. What's more, he is immediately able to calculate the exact cost of the mistake. Because poker involves a relatively small number of variables-- there are only 52 cards in the deck and only three possible moves in each round of betting-- a player can assess every aspect of his game ruthlessly and with considerable accuracy. It is hard to keep kidding yourself in serious poker. You either win or lose.
Lawyers have considerably more trouble with self-assessment, however, and not only because of ego involvement and self-delusion. Every lawsuit has thousands of factors, and no case exactly duplicates any other. Most litigation comes to a fairly indeterminate end via settlement, while ultimate negotiating positions remain unrevealed. Often it is difficult to say whether, and to what extent, you have truly won or lost. Even in those cases that go to verdict, producing a clear winner, there is no easy way to identify which decisions worked and which failed.
In law practice, the many, many dependent variables defy isolation. Consequently, even the most well-recognized truisms cannot be completely validated or falsified. Never ask a question unless you know the answer. Sounds right, but can it be proven? Save your strongest argument for rebuttal. Makes sense again, but aren't there exceptions? The opening statement is the most important part of the trial. This one has become a legend, but is it really true?
Unlike lawyers' assumptions, poker maxims are constantly being tested and refined, which makes poker wisdom a great strategic guide for litigators. Many poker principles are based on clear mathematical calculation, and others have been validated in practice. Poker is played by as many as 60 million Americans (many of them lawyers), and every player has a cash incentive to improve the quality of his play. Thus, capable card players know the precise odds of filling an inside straight or completing a flush. Poker wisdom rests on real insight into the workings of a game that exploits hidden assets and strategic disclosure.
And, just like litigation, poker is all about winning.
There are many poker tactics that can be applied to comparable situations in law practice. In fact, we frequently borrow the language of poker to describe litigation.
Almost every case begins with negotiation, when you really have to "keep your cards close to your vest." Of course, you will make a reasonable offer "for openers," realizing that you might eventually have to "sweeten the pot." Your opponent, however, might try to "raise the stakes" by implying that she has an "ace in the hole." Still, you will probably be willing to "ante up," figuring that you can "buck the odds" if you "play your cards right." After all, a "four flusher" like your opponent might well be "drawing to an inside straight," in which case you will just have to "call her bluff."
If no one "folds," you will eventually end up in court. That's okay with you, as long as you can get a "square deal" (but heaven help you if the judge is taking something "under the table). Anyhow, you'll have to "play the hand you're dealt," even if you star witness is a "joker." You can handle the cross-examination of the opposing party, though she might turn out to be a "wild card," just so long as your opponent doesn't have "something up her sleeve." It's too late to "pass the buck," so you'd better hope you have a "winning hand" (and that you aren't playing with a stacked deck"). Even if you are tempted to "bet the farm," it's probably better to keep your "poker face" and "stand pat." Just make sure that everything is "above board" and that no one is "dealing from the bottom of the deck." But however much money there is "on the table," there is no reason to "tip your hand" until the "showdown."
Of all the many variations on poker -- five-card draw, seven-card stud, high-low split, and countless others -- it is probably Texas Hold'em that most closely resembles litigation, because it is based upon a combination of concealed information and publicly shared evidence. ... As novelist and poker player James McManus put it, Texas Hold'em is a game of optimal strategies with imperfect information, requiring educated guesses under conditions of extreme uncertainty. It is a "distilled competition" in which the "best strategy involves probability, psychology, luck and budgetary acumen, but is never transparent." No trial lawyer could have said it better....