Joel Dillard & Associates

Chess: Lawyers playing games in litigation

Studying games is a good way to understand strategy in real life situations - including in litigation. And what better games to study than two of the all-time greats: chess and poker?

Chess: perfect information and imperfect players

The two key things to realize about chess are that it is - in theory - a game of perfect information and no luck.

• There are no secrets. Both you and your opponent know exactly what pieces each player has, how they move, and where they are placed on the board.
• There is no luck at all involved. No drawing from a deck, shuffling, or bounce of a die to imbalance the game.

More than that: there is a database containing every significant game ever played for decades - including every significant game you have played, and that your opponent has played. Before you play a game, you and your opponent each have the opportunity to study this information in any way you like in order to prepare.

And even beyond that: in today's game you and your opponent will each have access to supercomputer programs that are far better at understanding and playing chess than any human ever has been. Before the game, you and your opponent each have the opportunity to learn from these computers and the way they analyze games.

So what determines the outcome? Our limits and imperfections as players.

There are at least four ways to win (or lose): Tactics, Preparation, Strategy, and (lets call it) Luck. First, if you can see further ahead tactically than your opponent, you will probably win. You will be able to see when your opponent has made a mistake and how to punish it. You will be able to see opportunities and threats that your opponent will overlook. You can set traps: inviting-looking moves that appear to win immediately, but which in fact end up losing just a few more moves down the road.

To win this way, you must have strong logical powers, short-term memory capacity and raw cognitive speed - what they call calculation - as well as practice in recognizing tactical patterns in the game. In forcing lines - where there are only one or two choices that make any sense in a series of moves - the best players will be able to calculate a dozen moves or more down the road to see who comes out ahead. The same is true in endgames, where there are only a few pieces left. But no matter how deeply you calculate, if you overlook just one option along the way, it could cost you the game.

Second, you can win a game by being better prepared than your opponent, studying particular lines in the opening that they will not expect and surprising them with some home-cooked preparation that you understand better than they do.

To win this way takes a lot of research and private study of games, analyzing different options to great depth. It also requires a nearly perfect long-term memory, so you can carry all that information with you into the heat of combat in every game.

Third, you can win if you have a better strategic understanding of certain situations. Things like what tends to makes a pawn weak, whether it is better to have an open or closed position given the placement of the pieces, which spaces or sides of the Board will be most critical to control, whether it is better to get a material advantage or the initiative in a given moment, where to put pieces now so they will be most effective later in the game.

When players are evenly matched in tactics and preparation, strategy will usually decide the outcome. This requires a very different kind of study than preparation. This is about studying and understanding the reasons behind different moves and ideas. This is also where the greatest rewards of thoughtful experience are found. Trying ideas and seeing what happens, analyzing your positions, helps develop an intuition about what works and doesn't strategically in a game, a general sense that a certain situation calls for pursuing a certain idea for how to improve the position.

Lastly, there is what I have called luck, but which really isn't luck at all. Remember, there is no luck in chess, no chance events, no accidents. This is actually about psychology. For example, if you happen to lose a brilliant strategic game by a stupid tactical mistake, it can be hard to forget it and move on to the next game. You can go on tilt, where you find yourself unable to focus properly, and so make a series of additional mistakes. A player can also get tired, sick, hungry, or distracted for any other reason. Or perhaps someone underestimates you, and takes a risk that they don't think you will be able to punish them for, and you manage to find the right way to respond. In this way great players can lose to lesser ones. Or perhaps they take a risk that it seems like you ought to be able to punish, and you overpress trying to take advantage, and wind up with greater weaknesses yourself as a result. Or maybe someone is, because of the tournament situation or a psychological reason, too desparate to force a win when they should be content with a draw. They can wind up losing.

Chess and litigation

Trial practice is most like chess after the discovery process is concluded, when (in theory) all the information that can be presented at trial has come out and there are no more secrets lying in wait. The Judge and the opponent are known quantities. Their past actions are all public, on the docket, ready for study. The jury is unknowable - they are more like a toss of the dice - but there are some similarities to a game of perfect information at this point. The same four elements are key: Tactics, Preparation, Strategy and Luck.

But before trial itself, probably the better model is poker. That will be the subject of our next post.

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