Here’s What Lawyers and Poker Players Have In Common:  Interview with Steven Lubet

I’m not a lawyer, nor a poker player, and don’t even have much interest in these topics.  So I figured I would sooner win the World Series of Poker than enjoy Lawyer’s Poker: 52 Lessons that Lawyers Can Learn from Card Players (see Suber’s review).  But surprise, surprise.  It’s one of my favorite books this year!!

So I wanted to talk with the author, Steve Lubet, a Law Professor and Director of the Bartlit Center on Trial Strategy at Northwestern.  Turns out he’s a bright, funny guy, and accomplished both in law and outside the field.  Not a guy I’d want on the other team in the courtroom!!  Not a first-time author… he’s previously written Murder in Tombstone: The Forgotten Trial of Wyatt Earp, and his textbook Modern Trial Advocacy has been used at over 90 American law schools as wellas in Canada, Israel, and China.  Lubet has written humorous commentaries for NPR’s Morning Edition, and his opeds (both serious and humorous) have appeared in The New York Times, Chicago Tribune, Philadelphia Inquirer, Los Angeles Times, Washington Post, as well as Slate and Salon.

PokerMoments:  What inspired you to write Lawyer’s Poker?  Was your goal to teach lawyers, or to show similarities between practicing law and playing poker?

Steve Lubet:  I became interested in the idea when I read Andey Bellin’s book, Poker Nation, which combined memoir with poker theory.  I’m always looking for new ways to teach lawyers, and it struck me that poker could provide some good analogies, so I bought a bunch of other poker books and began to research.  Almost immediately, I learned that the great advantage in poker is the constant repetition of a relatively limited number of situations.  In other words, the game is almost like a living social science experiment – high-stakes decision making based on incomplete information.  Lawyers do the same thing, so it made sense to look at common poker strategies and map them onto law practice.

PM:  I found the number of examples in Lawyer’s Poker amazing, and thought they were thought provoking.  How long did it take to think of all the correlations and then write the book?  Any new books in the works?

SL:  Having written a couple of books (and many articles) about trial advocacy, I already had a good idea of the skills that I wanted to discuss.  I read the poker books over the course of about a year – while doing other things (it wasn’t like researching a dissertation).  Then it took me exactly 60 days to actually write the manuscript, writing one “lesson” per day over the course of a summer.

I’ve just finished the manuscript for a new book called The Importance of Being Honest:  How Lying, Secrecy, Myth, Hypocrisy, and Misperception Collide with Truth in the Legal Professions.  It’ll be published in the spring of 2008.

PM:  Do you play no-limit Texas Hold’em?

SL:  No.

PM:  Do you use any of the poker lessons or stories from the book when you teach law?

SL:  Absolutely.  The great problem in teaching law practice (as opposed to legal doctrine or theory) is that it’s hard to know what really works.  That is, you can have a feeling about successes and failures, but every case is unique and there are thousands of discrete decisions in every case – so it’s impossible to isolate the variables.  Thus, we end up with a lot of “common wisdom” that might or might not actually be right.  Poker analogies are helpful precisely because they can be validated through repeated play.  The trick (or maybe the art) in teaching involves identifying the truly parallel situations.

PM:  How did you get interested in law?  in teaching?

SL:  I went to college in the 1960s, so law school was a natural choice for an activist.  I got into teaching by accident in 1975 – only my friends and family think the story is interesting – and I’ve somehow stayed with it for 30+ years.  I still do pro bono work.

PM:  I’m a doctor who gives depositions and goes into court for patients very occasionally.  This book opened my eyes to a whole new way of seeing what lawyers do.  Any suggestions for doctors who appear in court in support of patients?

SL:  The best advice is to read my book, Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them.  Expert testimony is an extremely important part of the trial process, yet many experts enter the courtroom relatively unprepared.  Many experts will say that they fear, or resent, cross examination, but in my experience they really have more trouble with direct examination:  their answers are too long, too discursive, too technical, and too hedged.  So here are two basic pieces of advice:

1.  Remember that law is a binary system in which questions need to be answered Yes or No; there’s no wait and see, and no re-evaluation based on further developments.  That environment is often uncomfortable for scientists, but there’s no alternative because lawsuits have to be resolved with some degree of finality.

2. When answering a question, give the conclusion first and then the explanation or the background.  That is contrary to the way most conversations proceed, but it’s essential to courtroom communication.

PM:  Do you have reservations about playing poker yourself?  about practicing law?  For example, being good at bluffing – is there a downside to “perfecting” that skill?

SL:  I don’t play poker because I’ve learned too much about it – I would lose for sure.  I have absolutely no reservations about law practice, which is the most noble of the professions (note: I’m not saying that lawyers are the most honorable professionals, but rather that the profession itself is the most noble).

PM:  What do you think about mediation?  Does that require a different skill set for a lawyer?

SL:  True mediation requires a very different set of skills, in which the parties attempt to accommodate each other’s needs, rather than simply prevail.  Much of what passes for mediation, however, is really just facilitated negotiation.

PM:  The issue of law versus justice… do you believe, in general, that the more skillful lawyer, who represents her client better, is the lawyer who serves justice better?  If so, why?  If not, is this a reason to doubt your view that the purpose of the practice of law is more admirable than the purpose of poker?

SL:  The practice of law is the most admirable and important of all professions because it’s essential to the maintenance of personal liberty and economic freedom.  Most people, including lawyers, don’t realize this because:  (1) the social benefits are diffuse and often invisible; and (2) many practitioners fall very far short of the ideal.

You’re probably skeptical, so let’s engage in a little thought experiment.  Which sort of society would you prefer to live in, one without medicine or one without law?  Before you answer too quickly, consider two contrasting examples.  The Golden Age of Muslim Spain – profound equality under law, but no truly effective medicine.  Nazi Germany – great medicine, rotten law.

Medicine has made outstanding achievements, but consider the achievements of law:  The First Amendment, the abolition of slavery, the equality of women (still in progress), the development of economic stability and the broad middle class.

PM:  Lawyer’s Poker clarified that, for me, medicine was a much better career choice than law.  I do believe both can be intellectually challenging, and draw on many different skills when practiced well.  But 2 differences I see between law and medicine:

First, medicine gives me a chance to help people everyday; the same could be said of law.  But I can help people in medicine without another side needing to lose.  Medicine isn’t competitive – it can have winners without losers.  In medicine, I’d say we battle against disease, but not one another.

SL:  Medicine is focused on helping identifiable individuals, which must be very rewarding on a daily basis, but it’s not quite correct to say that it’s not competitive.  Patients compete for your attention and for institutional resources; you decide who gets what.  The difference is that the losers have little or no recourse, and they often don’t even know that they’re losing.

PM:  And second, when I’m being a good doctor, it makes me a better person.  I listen to someone in their time of need.  I help heal them.  More comprehensive still are the life values I strive to practice – honesty, altruism, practicing peace and harmony.  These are hard enough to practice and learn, but I think practicing law would take me away from these ideals.  How do you cultivate these ideals, yet practice law?

SL:  Law definitely proceeds from a different value system – an ethic of autonomy as opposed to an ethic of benevolence – but that doesn’t mean that medical ideals are superior.  That is, the job of a lawyer is to enhance a client’s autonomy, allowing the client to make his or her own decisions (whether those decisions are good or bad).  Civilization prospers when people have substantial control (with legally defined limits) over their own choices, and that’s what lawyers ideally accomplish.

I don’t doubt that you’re honest and altruistic in your own practice, but that’s a highly idealized view of the profession in general.  Physicians routinely withhold information from patients, take shortcuts, perform unnecessary procedures for financial reasons, and engage in risky practices.  One of the greatest public health problems in history has been the over-prescription of antibiotics, almost exclusively due to physicians’ loose self-discipline.

Please don’t get me wrong – I think very highly of physicians (including my own internist, who is brilliant and good), and I agree that the typical doctor is far more altruistic than the typical lawyer.  But that’s actually the genius of our legal system – it doesn’t rely on altruism (which is usually in short supply) in order to benefit society as a whole.

PM:  Thanks to Steve Lubet for taking time from his many activities to talk with us.  I personally appreciated his insightful comments about law and medicine, and he’s given me some points to mull over – although I still don’t think I’ll trade in my MD for a JD anytime soon.  But I do believe that a new Golden Age of intellectual rigor and great book writing might just be blossoming in an office at Northwestern.

Any questions or comments for Steve… let us know in the comments.

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