Under Analysis: Play chess, not poker

Mark Levison, The Levison Group

If lawyers ever intentionally tried to mentor me, I didn’t notice. That doesn’t mean I didn’t learn along the way from some of the older boys — there weren’t really any girls in those days. I recall the head of the first firm I joined casually mentioning, in his somewhat arrogant way, that it was important for a lawyer to keep his eye on where he wanted to be at the end of the case, and to take the straightest route to get there. He also coined my favorite phrase describing unanticipated positive results. He called them “triumphs of advocacy over reason.” There may have been a few times over the years when I was able to claim such a result.

Early in my career, I had the opportunity to serve on a trial team that won the third largest jury verdict, purportedly in the history of the world. I was in charge of the general motion practice, and reading the 430 depositions into evidence. David, the brains behind the multi-talented trial team, and probably the best trial lawyer I’ve ever seen, gave me a compliment once. He said, “When it comes to litigation, you either have a feel for it or you don’t, and you have it.” That appreciated compliment made me conscious of judging whether young lawyers in the firms where I was employed had “the feel.” In fact, to my consternation, in a couple of those firms, some of the senior lawyers didn’t seem to “have the feel.” But David taught me something else that’s proved more important. It was a lesson in decision-making.

We were discussing discovery strategies. I gave him my strategy. He told me he thought something else should be done, and we went back and forth. I argued with him, strongly asserting we should do it my way. Finally, David said, “Well Mark, we disagree. I understand what your position is, and I’m the one in charge, so we’re doing it my way.” End of story, no more discussion. At the time, I thought his attitude was a little cavalier, maybe even foolhardy. After all, he was disagreeing with me. Later, I realized David was simply expressing the reality of the situation, and accepting the position of responsibility in which he found himself.

Since I’m the one who makes the decisions now, I understand the weight of that role. I try to encourage discussions and differences of opinion, but the most important thing to be able to do in litigation, or, as a matter of fact, in life in general, is to weigh the options and then to move ahead. Decisions need to be made, and in litigation timing can be important. Somebody needs to feel comfortable having the responsibility to make decisions, and the confidence to move forward in a timely fashion, whether they turn out to be right or wrong.

None of my firms ever had what I would call a formal mentoring program, but I am not shy about offering my two cents. So maybe it’s my turn to try to pass along a little of what I think I’ve learned. Last week I was talking to a mid-level associate and heard myself telling him: “You know, Jim, the problem with our opponents is that they are playing poker while we are playing chess.” I said, “As you know, more than in virtually any other game, sport or even a job, chess requires us to keep the big picture in mind. Chess requires you stay ahead of your opponent by anticipating their reactions and planning several moves ahead.” I gave him examples from two cases we were litigating.

In the first case, we had sued a government entity complaining it had taken an inappropriate action. After we sued, it backed off on the action and chose to do something else we hadn’t complained about. We responded with a letter suggesting that since it shifted its plan, we could resolve the suit if it made certain promises in respect to future decision-making, and dealing with the upset citizens we represented. From our perspective, the requests were simple. We didn’t really ask the defendant to do much more than do what it should have been doing — talking to its citizens and following the law. The defendant responded that it wasn’t required to make those types of promises, and furthermore, since it changed its plan, our lawsuit was moot. It moved to dismiss our claim. We urged the defendant to compromise even if it didn’t have to, because we believed our requests were fair, the citizens were not happy being ignored, and by the way, my clients were very well-funded. We suggested now was the time, and this was the way to resolve the matter.

Unfortunately, it seems, the government entity, and/or its lawyers, were playing poker. The defendant thought the hand it was currently holding (in respect to dismissing our suit) was very strong. It didn’t take the long view. The defendant thought the chance of us defeating its motion was the equivalent of drawing to an inside straight. But, as it turned out, they lost. Maybe it was one of those triumphs of advocacy over reason.

Our team viewed the case beyond the motion to dismiss. The defendant bet too many chips on its immediate hand, and when it lost, it didn’t have many chips left to play. No sooner had the defendant lost the motion, than it asked if we would agree to the deal we previously offered. It doesn’t work that way. We were playing chess. Our next move consisted of notices of depositions.

The second case involved an attempted disqualification of an expert scheduled to testify in a judge-tried case. I explained to Jim that our opponent was again acting as if it were in a poker game. We took its motion to disqualify our expert, a motion that could have been won, but in a judge-tried case would very likely fail, and we used the opportunity to position the board in our favor by briefing very important issues before the judge. We didn’t just brief the impressive experience of our expert, what she was going to say, and how deep her qualifications were. We wove into the argument why we ultimately would win the case, and pointed out the critical admissions and mistakes the opponent himself had made in his deposition. We argued the validity of our case and described the damages caused by the defendant. The opponent’s motion gave us an opening to get important arguments in front of the judge. The first thing the defendant’s counsel argued in the oral argument was that we had introduced arguments that were unnecessary to decide the instant motion. Maybe the defendant should have been playing chess.

Again, it seems the opponent got enamored with the possibilities of winning a particular hand, and raised when it should have called. The big picture question the defendant needed to ask was, is the value of making the motion worth what happens next? In other words, was the potential reward of winning the motion worth the greater likelihood of losing and offering us the opportunity of putting some important arguments in front of the judge? Instead of pushing a big stack of chips into the pot, our opponent should have kept his hand on its rook a little longer. Sometimes you need to know when to hold ‘em.

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Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
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