By Steven Lubet
I recently got an email from Michael Webster, a commercial litigator in Toronto, who kindly said that he found my “trial examples interesting and useful examples of trial advocacy.” Then he continued:
However, I disagree with the analogy between slow playing at poker and skillful advocacy. Slow play at poker is generally wrong and the province of lesser players. It is generally overused and played without regard to whether the other players at the table have a strong second best hand. Without some other player incorrectly thinking he holds the winning hand, slow play -defined as check and call, if necessary- the slow player is simply cheating himself.
The poker point is well taken. Slow playing only works in certain circumstances. As I have described it in Lawyer’s Poker, slow playing is a non-betting strategy, as follows:
When holding sure winners (“the nuts,” in poker slang), a huge opening bet may cause most or all of the other players to throw away their hands, meaning that you will win a small pot despite your great cards. So, instead of betting heavily in the early rounds, you can simply check or call others’ raises, thus keeping your opponents in the game and building up the pot. Successful slow playing requires that you give nothing away about the strength of your hand while encouraging others to believe their hands are likely to win.
As my reader pointed out, there are at least two obvious drawbacks. First, other players may not raise, leaving an even more anemic pot – so the slow play may reduce your winnings. Even worse, another player might hang around getting free cards rather than folding (because no one has raised), only to draw a miraculous winning hand to beat you.
That doesn’t make slow playing a uniformly bad idea. It just means that it should be used sparingly.
The criticism of slow playing – generally overused and frequently self-defeating – raises an extremely interesting question about litigation tactics. I can think of at least two common forms of lawyers’ slow playing, and I wonder if they are also used too often.
Here are two of the most frequent admonitions to beginning lawyers: (1) Never ask a witness to explain on cross examination, and (2) never ask the “ultimate question,” saving it instead for final argument. If you think about it, these approaches are both variations on “slow playing,” meaning that the lawyer refrains from aggressive tactics that might backfire.
But is that always right?
I’m not saying that we should instead throw caution to the wind, but perhaps aggressive cross examination – regarding explanations and ultimate questions – could be more helpful than common wisdom suggests.
I know of at least one good example, that I learned from Justice Warren Wolfson of the Illinois Appellate Court (and one of the best trial advocacy teachers in the country). When a witness admits changing his story, especially after testifying previously under oath at a preliminary hearing or deposition, you might well want to insist on a particular form of explanation:
“Are you lying now or were you lying then.”
No reason to slow play in that situation, and I am sure there are others.
Steven Lubet is Professor of Law at Northwestern University and a nationally recognized expert on trials and trial strategy. His latest book is Lawyer’s Poker: 52 Lessons that Lawyers Can Learn from Card Players. Visit the Lawyer’s Poker website to learn more!