Sharks - Getting value in poker and litigation

Knowing how to value your cards, and perhaps more importantly, your opponent's is a basic core concept of poker. The first lesson of poker is to reduce betting on bad hands while recognizing good ones. The same is true in court. If you know how to value your case, not only as a whole, but in piecemeal, you can strategize accordingly.

In poker, the terms of "pot odds" and "expected value" are used to determine the relationship between risk and gain. There are three things to consider here: the amount of the raise or call, the likelihood of success, and the size of the pot. The same concept applies to litigation.

The poker analysis is perhaps best analogized as follows: the amount of the raise/ call (or what you are willing to "give up" to stay in the hand) is the offer to settle. Consider the situation of a first time DWI case. In Tarrant County anyway, there is a standard D.A. offer on first-time DWIs. However, for the most part, a defendant who goes to trial and loses, does not generally receive a stiffer punishment than what she might have otherwise received by pleading guilty. Therefore, in that scenario, the raise/ call is little indeed.

The likelihood of success is essentially the same in litigation as it is in poker. Can I win this hand/ case? Of course, wins and losses are relative, and we will discuss that later, but essentially it can come down to this from the defense perspective; can I beat the government's offer? Remember, the relativity of the win can mean a 20 year sentence is a win, whereas a 6 month sentence is a huge loss. But winning and losing are the same, whether in poker or litigation.

Finally, the size of the pot. These are the stakes of the game, and they are different for every person and every case. Two DWI cases rarely have the same pot. Indeed, two murder cases never have the same size pot. What a person can win however, is not merely the opposite of what the person can lose. Remember, what a person can, or is willing to lose, is his raise/ call amount. It's what he is willing to put on the line for the chance to win. They are not converse ideas, and should never be thought of as such.

Consider the example of the drug dealer caught up in a large federal investigation. He has a relatively minor role in the overall criminal action, but is indicted nonetheless. With mandatory minimums for drug offenses, there is already a relatively large call to make to stay in the pot and go to trial. Given the concept of acceptance of responsibility and the carrot that is substantial assistance for cooperating snitching to the government, a person can conceivably be giving up a large sentence reduction by pressing his luck at trial.

For a normal first time felony offender in federal court, the temptation to fold is overwhelming. After all, the price of calling by pleading not guilty and going to trial often times outweighs the benefit, or the pot. It is not uncommon for a person to be able to cut his sentence by almost half by agreeing to plead guilty and cooperate snitch for the government. However, by doing so, they have folded their hand and have no shot at the pot, which in this case, contains an acquittal.

But consider the addition of the following variables. The person is in federal court for the first time, but has a lengthy felony criminal history, and is in fact, serving time in state prison for another drug offense. Under the relevant conduct provisions of federal sentencing law, all of the person's past criminal history will be used to sentence him, often harshly. For that person, the raise/ call is relatively small in consideration of the pot size.

Whereas the first person might have been looking at 10-12 years by going to trial, but was able to plead his case and receive six or seven years, those stakes are not those of the second person. With his criminal history, he is looking at a potential mandatory 360 months by going to trial, but 240 months by not. While the 10 year difference might be daunting to the first time offender, for someone in the second example, it is something they are willing to risk for the prospect of the pot, which still contains an acquittal.

Knowing how to value a case is extremely important in proper representation. Always calling a bet is the equivalent to always going to trial no matter what. Sure it might be fun, "betting for action" as they say in poker, but in the end, you bleed chips and your client is the one that pays.

Comments

[Stephen Howard]

Nice analogy from Poker to the case. I don't do criminal law, but often use the analogy of rolling dice to explain to my injury clients what the risks are at trial. For my business clients I usually put things in a "cost versus potential outcome" analogy.

First time to visit your blog. It is very nice. Good tone and style.

Best wishes.

[poker rules]

Maintain a calm deportment when you play even when the game becomes heated. Do not ever give your opponents hints through your gestures and body language about what is going to be your move. Perfect timing is also essential in a poker game.