An Adventure in Lawyer’s Poker: Making Smarter Decisions When You Don’t Have All the Facts

Thinking in Bets: Making Smarter Decisions When You Don’t Have All the Facts
By Annie Duke
(Portfolio/Penguin: New York 2018).

As a lawyer who strives to give clients objective advice, reading Thinking in Bets was a refreshing challenge.

I am fortunate that my own practice experience has been diverse. Although my focus is now on representing plaintiffs and work as a mediator, I carry with me some of the thought processes I learned when I represented insureds, insurance companies, and employers. But that experience is very dated, and the lessons of those days have receded.

So, Annie Duke’s book, Thinking in Bets, gave me an important opportunity to reevaluate my decision-making processes.

Annie Duke left a promising career in academia as an experimental psychologist and became a successful professional poker player for 18 years. She won the 2004 World Series of Poker.

Her book is not about practicing law, but it is very relevant to the work of lawyers. Duke points out that being a trial lawyer is more like playing poker than it is like playing chess. Chess players see all the relevant information right on the board. Luck plays little if any role in the outcome. But in poker, and in the law, important information may be hidden, and luck often plays an important role in determining outcomes.

In law practice, as in most businesses, you can’t control the outcome of the ventures you undertake. But you can learn to make better decisions, which, over time, will give you better results.

Duke points out the pervasive, persistent influence of confirmation bias in all our lives. We tend to seek out and accredit evidence that confirms our existing views and to avoid and discredit evidence that is inconsistent with those views. And this bias is not reduced by intelligence. In fact, it’s often just the reverse. The smarter we are, the easier it is to find and believe what supports our views and avoid and discredit that which does not.  We tend to believe that the good things that happen are to our credit, but the bad things that happen aren’t our fault.

Duke explains an idea she calls, “Resulting.” She describes it as the tendency to judge a decision by its outcome, instead of by the quality of the decision itself. As a notable example, Duke points to Pete Carrol’s decision to call a pass play in the last 26 seconds of 2014 Seahawks/Patriots Superbowl game. She says it was an objectively good decision that led to a bad result. The Seattle Seahawks were four points behind and on the one-yard line. Everyone expected them to hand off the ball to Marshawn “Beast Mode” Lynch to bull his way into the endzone.  The Seahawks had only one time out left, so a running play would likely give them only two chances to score. But a pass play had real advantages. An end-zone completion would have won the game.  An incompletion would likely take very little time, leaving the Seahawks two more shots at the end zone. Only an interception would cost the Seahawks the game. That’s, of course, exactly what happened. Carrol looked like a goat and New England Patriot’s coach Bill Belichick looked like wizard. But the results don’t make Carrol’s decision a bad one, only an unsuccessful one. Duke points out that the statistics show the probability of an interception was only 2.5%. And there was a similar risk, nearly 1%, of a possession-changing fumble on a running play.

So, Duke argues that Carrol’s choice was a good one. It had the advantage of surprise and was likely to give the Seahawks an extra opportunity to win the game.

In fact, the correlation between our decision-making processes and the results of those process is very loose. We may very well make some poor decisions that lead on to success and vice-versa. I think this is particularly true of strong lawyers who may sometimes make things work, that – viewed objectively – simply should not. It’s great to pull off a long shot, unless it gives you a false sense of invincibility that leads on to multiple failures. I know it happens. I can recall an early trial success that led me to take several contingency cases I lived to regret.

Duke has great suggestions about how we can improve our decisions. A leading idea she explains looks back to the name of the book, Thinking in Bets. She suggests that we try to explicitly lay out the ways that things can work out and then take a stab at estimating the probabilities of each one before deciding. Having laid out the factors that may affect the results and assigned even rough probabilities helps us to compare results with expectations. If done seriously, it makes us information hungry. Even partial success in gathering and looking at relevant information informs our decisions and improves our process. And acknowledging that there is some uncertainty as to the outcome tends to soften the psychological attachment to our decisions and increase our ability to learn the right lessons.

Duke also suggests the benefits of including diverse views in our decision making. She points out that many group decision-making processes are “confirmatory” rather than “exploratory. Confirmatory groups are committed to being “right,” that is, to affirming that the group’s view is the right one.  Being surrounded by people who tell you what you want to hear hurts rather than helps. But an exploratory group values and rewards serious dissent. It carries a commitment to being “accurate” rather than “right.”  An exploratory process helps a group decide based on a clearer view of the relevant facts.

There is much more to be had from Duke’s book. As lawyers, we sell good advice and good decision making. Reading this review is a step in the right direction. Reading Duke’s book is bigger step. And taking Duke’s thinking seriously and implementing at least some of her suggestions, is bigger still.

Of course, it is better to be intuitive and right than it is to be objective and wrong. But unless you believe in magical thinking, the path to good intuition is well-informed decision-making followed by careful evaluation.

This review was initially published in the Fall 2019 edition of the Vermont Bar Journal and is reprinted here with the permission of the Vermont Bar Association.


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