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June 2017

The Corporate Counselor

By: Laura Besvinick

Litigation is often compared to chess. The image is evoked of a lawyer strategically developing evidence and making arguments the same way a chess player moves and sacrifices pieces on a chessboard, to defeat an opponent. But ask any trial lawyer, and he or she will tell you that litigation is nothing like chess. In chess, both players have the same pieces and start from the same squares on the board — in effect, their cases are equally strong. Moreover, in chess, both players have an unobstructed view of the board; in other words, they both possess full knowledge of the facts. In litigation, neither of these fundamental premises is true.

The better analogy and, more importantly, the better place to turn for useful practice pointers, is poker. In poker, each player starts with the cards as they are dealt; a hand may be good or bad, depending on the luck of the draw. Likewise, in litigation, the lawyer is presented with his client’s case, whatever its strengths or weaknesses may be. Almost by definition, the two sides in litigation will not be equally matched at the outset as occurs in chess. In poker, each player’s knowledge is limited; she can see her cards, and any common cards, but not the cards of her opponent. So, too, in litigation, the lawyer’s knowledge is limited to what he can learn from his client or through discovery; he does not know privileged information known only to his adversary. As a result, lawyers, like poker players, in order to win, must constantly make the best decisions they can base on imperfect information.

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