The client arrived with a fixed brief: "I'm suing. I'm in the right, I have evidence, and I want a court to decide it." After two hours working through the situation together, it became clear that what he was describing was not a dispute that made sense to fight as a courtroom battle. It was a negotiation against a counterparty with deeper pockets and unlimited time — a situation where the winner is whoever holds out the longest, not whoever is right. He had walked into my office with a chess strategy in his head and a decision to play Monopoly against someone who already owned half the board. Without correction he would have lost — precisely because he was right, but playing the wrong game.
This scene repeats in our practice with a frequency that has long since stopped surprising us. In a previous piece on the psychology of the parties I unpacked who actually decides anything in a legal dispute and what is going through their heads. In the manifesto piece on psychology and tactics in legal disputes I showed how behavioural economics reshapes strategy. This text asks an even more upstream question: what kind of game is this dispute in the first place? Because a lawyer playing chess in a poker game will lose, however good a chess player they are. And a client who thinks they are playing Snakes and Ladders will lose almost every time, regardless of what is actually being played.
This is not just metaphor. It is an operational frame. And much of its power lies in how rarely it is named openly in legal practice.
¶ Part one: Chess — full information, no chance
The chessboard sits between you and your opponent, completely uncovered. Both of you see every piece. Both of you know the rules. No dice, no bluff (a deceptive manoeuvre), no chance. The winner is the one who sees more moves ahead — and who knows which pieces to sacrifice.
In game theory this is called a perfect-information game: at every moment, every player knows the full state of the board. Chess, draughts, go. And some legal situations.
When law is chess
Corporate transactions. Due diligence (a systematic review of the legal, financial and operational state of a company before an acquisition or investment). Contract negotiation. Acquisition prep. Situations where both sides have (or ought to have) access to complete information, where position is built systematically, move by move, and where outcomes depend more on depth of analysis than on luck.
A contract negotiation, in its ideal form, is a chess game. Both sides are working from a draft. Both see every clause. Hidden information plays a small role here — what changes is the interpretation of the same text. The party that understands the position better is the one that knows the penalty clause on page 7 is often worthless because the cap on liability (the ceiling above which a party is not liable for damage) on page 12 cancels it. The one who sees that an apparently unfavourable concession in one area opens a stronger position in another.
That is the chess gambit (a deliberate sacrifice of a piece for better position): you give up a clause to win the deal.
What science says about chess in law
Alexander Kotov, the Russian grandmaster, set out in Think Like a Grandmaster (Batsford, 1971) the principle of the "tree of variations": a strong chess player does not analyse every move. They go deep on two or three candidate moves. A weaker player skims twenty moves at the surface.
In law the same dynamic has its analogue: a fifteen-page letter that addresses everything and nothing is usually weaker than three paragraphs that strike exactly where the position turns. Not because the author didn't know the rest — because they knew what was relevant.
Herbert Simon, Nobel laureate in economics, described the underlying mechanism as expert chunking (the brain's ability to bind individual pieces of information into recognisable patterns; Simon, A Behavioral Model of Rational Choice, Quarterly Journal of Economics, 69(1), 99–118, 1955). The experienced player does not see individual pieces, they see patterns. They recognise a position they have seen a thousand times and immediately know what is playable. Adriaan de Groot (Het Denken van den Schaker, Amsterdam University Press, 1946) demonstrated this experimentally: a chess grandmaster memorises a structured position after five seconds of looking at it. A beginner needs five minutes — and worse. The grandmaster doesn't memorise pieces, they memorise structure. When the position is randomised, the advantage disappears.
In due diligence: an experienced lawyer sees, in a 200-page document, a handful of sentences that may change an entire transaction. Not because they read faster. Because they see a pattern a junior typically misses — and would usually still miss on a third reading.
What chess in law demands of the client
Patience. Chess is not won on the first move. A client who wants to "fix it now" is usually playing the wrong game. Transactions take months. Due diligence has phases. Contract negotiation has rounds.
And willingness to sacrifice. "Why are we conceding on this clause?" Because it earns us a position with significantly higher value somewhere else. A client who measures success by the number of clauses they "won" is not seeing the chessboard — they are scoring a checklist. That is the difference between winning the game and winning a move.
What happens when you play chess as poker
You bluff in a situation where the counterparty can see your position. You say "we'll walk away," but your dependence on the deal is obvious from public data. The counterparty doesn't need to read your poker face — it reads your accounts. Bluffing in chess usually equals losing.
¶ Part two: Poker — hidden information, calculated risk, the art of the bluff
In poker you can't see your opponent's cards. They can't see yours. Both of you know the rules, both of you know the probabilities — but the decisive thing is what you don't know. And what you can convince your opponent that you do know.
In game theory poker is an imperfect-information game. Unlike chess, where the board is open, here every player holds cards only they see. And it is precisely this lack of knowledge — not the rules, not the skill — that shapes the entire strategy.
When law is poker
Litigation. Pre-action negotiation. Out-of-court settlements. Damages claims. Any situation where there is information asymmetry (one side knows more than the other) — you don't know what evidence the other side has, they don't know what you have, and both of you are trying to act as if you knew more than you do.
A pre-action letter is a poker bet. You are saying: "We have the evidence, we will sue." Maybe you have a strong hand. Maybe you are bluffing. The other side has to decide: call (let it go to court), raise (counter-attack), or fold (pay and end it). And they decide largely on the basis of the signals you send them — not the cards you actually hold.
The vast majority of civil disputes settle before judgment in jurisdictions with reliable statistics. In the US the long-cited figure hovers around 95–97% (overview in Galanter, The Vanishing Trial, Journal of Empirical Legal Studies, 1(3), 459–570, 2004); the Czech Republic lacks comparable robust data, but practical experience points to a similar order of magnitude. Most poker games in law therefore end in a fold or a settlement — and the whole game is often about who can create the impression of a stronger hand.
What science says about poker in law
Daniel Kahneman and Amos Tversky described, in Prospect Theory (Econometrica, 47(2), 263–291, 1979), a fundamental asymmetry: people are loss averse — a loss hurts more than an equivalent gain pleases. Losing, say, the equivalent of CZK 100,000 in a laboratory typically hurts about twice as much as winning the same. In litigation this means that a client with a 60% prospect of winning CZK 500,000 will often prefer a guaranteed CZK 250,000 in settlement. By expected-value reasoning it is suboptimal. Psychologically it is fully intelligible.
A good negotiator builds this in. If you act for the defendant, an offer below the expected value of the case but certain often goes through — the claimant fears the zero. If you act for the claimant, signalling willingness to go to court activates loss aversion on the other side: "If they lose, they pay more." (This of course only works if the signal is credible. A bluff with no backing has a short shelf life.)
John von Neumann, co-founder of game theory, formalised the concept of bluff equilibria (an optimal strategy in which periodic deception is necessary; von Neumann & Morgenstern, Theory of Games and Economic Behavior, Princeton University Press, 1944). A player who never bluffs is readable — the other side knows that when they bet, they have strong cards. A player who bluffs too often is also readable and loses credit. The optimal bluff frequency depends mathematically on pot size and on the probability that the other side will call.
In law: a lawyer who never sues loses negotiating leverage — the other side knows the threat is empty. A lawyer who sues every time loses credibility and clients eventually pay for it. The strongest position is unreadable — the other side doesn't know whether you are bluffing, and so cannot afford to fold cheaply.
Bruce Bueno de Mesquita, professor at NYU and senior fellow at the Hoover Institution, applies game theory directly to litigation settlement: applied game theory treats a dispute as a process where each side is modelling the other ("what will they do if I choose this"). He calls it multidimensional chess; a more accurate metaphor is iterated poker with asymmetric information.
Pot odds and law
In poker there is the concept of pot odds (the ratio of bet to pot — how much you risk versus how much you can win). If the pot is CZK 100,000 and you have to put in CZK 20,000 with a 30% chance of winning, that is a long-run good call: expected value = CZK 30,000 for an investment of CZK 20,000.
In law: does it make sense to invest another CZK 200,000 in litigation when the probability of winning is 40% and the upside is CZK 800,000? Expected value = CZK 320,000, mathematically yes. But the client doesn't feel expected value. They feel CZK 200,000 they have to pay now. And a 60% chance of losing.
Kahneman calls this narrow framing (the tendency to evaluate each decision in isolation rather than as part of a series). A professional poker player knows that the individual hand is, in the long run, irrelevant; what matters is long-run expected value. The client typically does not know this. That is why they need a lawyer who can say: "We are playing this hand. In ten such situations we win six. This particular one may be the fourth." Not as reassurance — as framing.
Tells — what the other side gives away without meaning to
In poker a tell is a non-verbal signal (an involuntary expression — a gesture, a face, a change in voice) that gives away the strength of the hand. In law tells exist too, they are just called something else.
Speed of response to a pre-action letter. If the other side responds within a few days, that often means concern — they want to deal with it. If they don't respond for weeks, either there is no real exposure, or there is no competent lawyer in the picture. (Caveat: they may also be waiting on an expert opinion or a board decision — context matters.)
Tone of the letter. An aggressive opening letter is more often a sign of a weaker position than is generally believed. A side with strong cards doesn't need to shout. "We have the evidence and have no problem putting it before the court" is usually stronger than "WE STRONGLY WARN AGAINST FURTHER STEPS!!!"
Willingness to negotiate vs. delay. A side that delays needs time — to prepare or to hope the problem disappears. A side that arrives at a meeting with a concrete proposal has clarity about its position. That is information.
Paul Ekman, pioneer of microexpression research (involuntary facial movements lasting a fraction of a second that reveal genuine emotions; overview in Emotions Revealed, Times Books, 2003), showed that people give away emotions they are trying to hide in very short time windows. In a courtroom: a witness who hesitates for a fraction of a second before answering has often revealed more than the answer itself. (A note of caution — the legal use of microexpressions is a contested discipline; courts do not treat them as evidence. They are at best tactical information for the party.)
¶ Part three: Monopoly — accumulation of resources, position of strength, game over
In Monopoly the winner is the one who has more. More properties, more money, more leverage. Deals are struck from a position of strength — not because they are fair, but because the stronger side can. And once one player owns Mayfair and Park Lane, everyone else pays whenever they pass.
When law is Monopoly
Insolvency. Negotiations with banks. Corporate disputes between unequal partners. Franchise disputes. Insurance disputes. Any situation where one party has structural superiority — more money, more lawyers, more time — and where this superiority is itself a strategic weapon.
Bank vs. debtor. Insurer vs. claimant. Corporation with 200 staff vs. the sole trader who supplied them. In these disputes the question is often less about who is right and more about who can hold out longer.
In the Czech Republic an average civil dispute at district level lasts roughly one to one-and-a-half years; appeal usually adds another six to eighteen months and a cassation appeal to the Supreme Court another twelve to twenty-four months (the precise figures are published periodically by the Ministry of Justice and vary substantially by case type). Total: not unusual for a commercial matter to stretch over three to five years. For a corporation with an in-house legal team that is an operating cost. For a sole trader, even a shorter timeline can be an existential crisis.
That is Monopoly in full bloom. The stronger player doesn't need to win the dispute — sometimes it is enough to drag it out long enough that the weaker player can't pay rent.
What science says about Monopoly in law
Richard Thaler, Nobel laureate in behavioural economics, described the endowment effect (once you own something, you value it more than its objective price, and more than you would pay for it if you didn't yet own it; Toward a Positive Theory of Consumer Choice, Journal of Economic Behavior & Organization, 1(1), 39–60, 1980). The client refuses to sell their stake for 5 million because "it cost me 3 million and 10 years of my life." But the market says 5 million. The other side, knowing you are emotionally tied to your asset, often offers 4 million — and you refuse, because "it isn't fair." Meanwhile you are paying lawyers.
Marc Galanter, in the famous article Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change (Law & Society Review, 9(1), 95–160, 1974), showed empirically what every experienced lawyer knows intuitively: repeat players (corporations, banks, insurers, who handle dozens of disputes a year) have a systematic advantage over one-shotters (individuals and small firms with one dispute in a lifetime). Why:
Repeat players have process experience. They know how long it takes. They know what courts usually decide. And critically — they can afford to lose an individual case because they optimise across a portfolio. An insurer running 10,000 cases a year optimises overall cost, not the outcome of any single case. Their lawyer has the brief: "Offer 60% of the claim. If they refuse, go to court — in X% of cases we win and the overall saving is positive."
A one-shotter cannot do this. They have one case, one outcome. And if they lose, there is no portfolio to absorb the loss.
In Monopoly: the player who owns the whole street need not be the better player. They just need to be richer. In law it is often similar — the stronger party need not have the better case. They need deeper pockets and a longer breath.
What Monopoly in law demands of the lawyer
Honesty in framing. Telling the client: "Your argument is solid. But you don't have the reserves for four years of litigation, and the other side knows that." Then looking for a strategy that changes the game — not winning Monopoly, but moving the dispute into chess (where position matters, not resources) or into poker (where information matters, not capital).
Sometimes the best strategy in Monopoly is not losing — withdraw from the street where you can't afford the rent and put the resources into another part of the board. In law that often means not suing for the full amount but negotiating a settlement that gives 60% certainty instead of 100% risk. I have written separately on this in Not every battle is worth fighting.
And sometimes — rarely — the best strategy is to flip the board. Insolvency. Enforcement. A media-heavy claim against a regulator. Steps that change the rules of the game so that Monopoly stops being Monopoly. An insolvency court where, suddenly, the bank no longer has more leverage than the debtor — because the debtor has nothing left to lose. These steps are risky and irreversible; if they are not part of a carefully-considered strategy, they often only deepen the loss.
| Game | Information | What decides | Typical situations |
|---|---|---|---|
| Chess | complete | depth of analysis and position | M&A, due diligence, contract negotiation |
| Poker | asymmetric | signalling, reading the other side, credibility | litigation, settlement, pre-action stage |
| Monopoly | complete, but relevance is in capital | resources, time, endurance | insolvency, banks, insurers, asymmetric corporate disputes |
| Snakes and Ladders | no strategy | hope, „justice will prevail" | (none — this is not a winnable game in law) |
¶ Part four: Snakes and Ladders — dice, no strategy, hope
And then there is the game no one plays on purpose — and which a surprising number of people end up in.
In Snakes and Ladders there is no strategy. You roll the dice. You move the piece. You hope no snake catches you. You hope to roll a six. No decisions. No analysis. Just the dice — and luck.
When people think law is Snakes and Ladders
When they come to a lawyer believing that "the court will see the truth." That "justice will prevail." That it is enough to show up, tell their story, and the judge will decide "rightly." No strategy. No preparation. Just trust in the system — as if the courtroom were a vending machine for justice into which you drop your case and out pops the right outcome.
"But we are right." I hear that sentence regularly. And every time I answer the same: rightness is a necessary condition. It is not sufficient.
Being right and not being able to prove it is, in practice, almost the same as not being right. Being right and not handling the procedural strategy is a major handicap. Being right and not having the means for a lawyer is a reality that systematically distorts outcomes in civil justice — not because judges are dishonest but because the system runs on evidence, deadlines and procedural acts that someone needs to operate professionally.
This is not cynicism. It is a description of the environment the client moves through.
What science says about Snakes and Ladders
Melvin Lerner described, in The Belief in a Just World: A Fundamental Delusion (Plenum Press, 1980), the Just World Hypothesis (the deep human need to believe the world is fair: the good will be rewarded, the bad punished). This belief is psychologically adaptive — it allows people to function in an uncertain world without paralysing fear. In a legal dispute, however, it is one of the most dangerous cognitive biases there is.
A client who believes truth wins on its own won't prepare. Won't secure evidence. Won't think through procedural strategy. Won't get the lawyer the documents on time. Because — why would they? Truth is on their side. The judge will "see it."
And then they lose. Often not because they aren't right. Because the other side prepared, secured evidence, worked out procedural strategy — and played chess while they rolled dice.
Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso published, in Extraneous Factors in Judicial Decisions (PNAS, 108(17), 6889–6892, 2011), an analysis of 1,112 parole decisions by Israeli judges. The probability of a favourable decision oscillated from around 65% at the start of the day and after breaks to near zero just before a break. The study was later critically reanalysed (Weinshall-Margel & Shapard offered an alternative explanation through the order of hearings, PNAS, 2011), but decision fatigue itself is well documented independently in psychology (Baumeister et al., Ego Depletion, Journal of Personality and Social Psychology, 74(5), 1252, 1998).
If you think law is Snakes and Ladders — that the outcome depends on chance — then ironically you are partly right. But the "chance" is not the dice. It is the day in the calendar, the time of your hearing, the judge's fatigue, the ordering of the cause list. You can't prepare for those. For everything else you usually can.
What the client playing Snakes and Ladders needs to hear
"You are right. Now let's work on getting the court to see it too."
Not: "truth will prevail." Not: "you'll see, it'll work out." Those are sentences spoken by a lawyer quietly playing Snakes and Ladders themselves. A better formulation: "You are right. The other side believes the same about itself. And the judge knows neither of you — so we need evidence, strategy and time."
And sometimes — and this is one of the hardest things to say in legal practice — what is needed is: "You are right. But the cost of proving your rightness is higher than what you would gain. This is probably not a game worth playing."
Because even Snakes and Ladders has one rule people forget: you can choose not to play.
¶ Part five: The wrong game — why most people lose without understanding why
The most common reason for losing a legal dispute is not a bad position, a bad lawyer or a "bad" judge. It tends to be the wrong game. The client plays poker in a chess situation. Or chess in Monopoly. Or — most often — they think they are playing Snakes and Ladders when in fact they are playing anything but.
What follows is a catalogue of typical errors. I have seen each of them. Some more times than is healthy.
The bluff in buying a house — poker in chess
A buyer attends a viewing. They like the property. They want it. And then they say to the agent: "I'll give you 15% less, take it or leave it."
They think they are playing poker. They bluff — signal disinterest, push down the price, "negotiate". But buying a house is usually played closer to chess. Both sides know the market price (valuation, comparables, the land registry). Both see the board. And the buyer's "bluff" is not hidden information — it is a transparent attempt to lower the price that the seller recognises immediately.
What usually happens: the seller says "no," because they know they will sell at market price to someone else. The buyer loses the house they wanted. Not because they didn't have the money. Because they played poker in a chess game — and in chess one usually does not bluff. In chess one calculates.
A better approach: analyse the position. How long has the property been on the market? How many interested buyers does the seller have? Are there hidden defects? What does the seller need more than the maximum price — speed? Certainty? A cash deal? Those are chess moves — position, not bluff.
The anchoring effect (the first number named in a negotiation shapes both sides' expectations even when it is to some extent arbitrary; Tversky & Kahneman, Judgment Under Uncertainty: Heuristics and Biases, Science, 185(4157), 1124–1131, 1974) explains why a bluff occasionally works: the first offer anchors the negotiation. But anchoring works mainly where the other side has no anchor of its own. A seller with three independent valuations has an anchor. Your bluff usually won't shift it — it will just place you in a role you may not want to occupy.
Chess in a corporate acquisition — when analysis isn't enough
A buyer firm hires advisers. Due diligence runs three months. 200 pages of report. Every contract, every commitment, every potential dispute — mapped, evaluated, priced. The chessboard fully uncovered. (I have written about this regime in Due diligence: what we look for when you buy a company and Cross-border acquisition: lessons from healthcare robotics.)
Then comes the price negotiation. The buyer leans on the due diligence report: "We identified 12 risks. We are reducing the offer by 30%."
They think they are playing chess — full information, logical argument, position backed by data. But price negotiation in an acquisition often isn't (only) chess. It is also poker. The seller knows the buyer wants to buy — otherwise they wouldn't have invested three months in due diligence. The information that you want to buy is one of the strongest cards the seller holds. And you have just shown it to them.
A better approach: due diligence as chess (analyse the position), negotiation as poker (hide how much you want to buy, hold credible alternatives). The transition between games — from chess to poker — often determines the price. And switching from analytical mode (chess) into strategic mode (poker) is much harder than it looks.
Bazerman and Neale (Negotiating Rationally, Free Press, 1992) showed that negotiators systematically underestimate the importance of outside options (alternatives outside the current negotiation — in negotiation theory, BATNA: Best Alternative to a Negotiated Agreement). A buyer without a credible alternative usually loses at poker. The other side knows they can't fold.
Chess where there is Monopoly — prediction in insolvency
The debtor enters insolvency. A prepared debtor — or their lawyer — says: "Let's study the insolvency administrator. Let's see how they have ruled in past cases. Let's predict their moves. Let's prepare."
That is a legitimate step. But it must not be confused with the solution. Because insolvency often is not just chess — it has a strong Monopoly component. And in Monopoly it is not enough to predict — you have to have.
Have the means to pay creditors. Have assets to distribute. Have secured creditors willing to deal. Have time. The insolvency administrator is not primarily an opponent you outwit with a clever move. They are the keeper of the board, who counts what you have — and rules accordingly.
A debtor who arrives with an analysis of the administrator's past decisions but no resources is in a similar position to a chess player who knows every variation but has no pieces. Position without material is usually a loss. In insolvency that means debt relief (a personal bankruptcy — the court approves an instalment plan and forgives the rest after compliance) on terms set by someone else. Or liquidation — the debtor's assets sold off for the benefit of creditors, the worst outcome available.
And here is an awkward irony: not infrequently, debtors invest tens of thousands in legal advice on insolvency strategy — money that could have gone to creditors instead. They occasionally pay for a chess coach in a Monopoly game.
Galanter (1974) describes it precisely: the insolvency administrator is a repeat player — they handle dozens of insolvencies a year. The debtor is usually a one-shotter — one case, one shot.
Monopoly in divorce — a war of resources where chess belongs
A wealthy couple's divorce. Properties, companies, investments. One spouse hires a "big lawyer" — aggressive posture, a flood of motions, expert reports on everything. The other answers in kind. Escalation. Both play Monopoly: whoever spends more on the proceedings wins.
After three years and millions in costs on both sides the court rules on the division of assets — and the result is comparable to what they could have reached by mediation (structured negotiation with a neutral mediator who has no decisional authority but helps the parties find agreement) for a fraction of the cost in the first weeks. But both spent three years in Monopoly trying to outspend each other instead of playing chess.
John Nash (The Bargaining Problem, Econometrica, 18(2), 155–162, 1950) described these situations as non-cooperative games with negative-sum outcomes (a game where non-cooperation leads to both sides losing more than they would by cooperating). The prisoner's dilemma in practice: both invest in a war of resources, both lose — but neither will step back first because they fear the other will exploit it.
A better approach: recognise that asset division usually has the character of a chess position (full information — both sides know the assets) rather than Monopoly (a war of money). And move the game where it belongs — to analysis of position, not escalation of cost. I have addressed this in detail in Uncontested vs. contested divorce.
Snakes and Ladders in commercial dispute — "truth will prevail" where strategy decides
A small supplier delivers an order to a large customer. The customer doesn't pay. The supplier has a contract, delivery notes, invoices. They are right. And they say: "I'll sue. The court will see it."
And here Snakes and Ladders begins. They roll the dice — file a claim with no procedural strategy, no analysis of the opponent, no preparation for the fact that the large customer will have two lawyers who will spend 18 months disputing every piece of evidence, requesting adjournments and counting on the small supplier to tire and accept 40% of the claim.
The small supplier thinks they are playing chess (I have evidence, the position is clear). In reality they are playing simultaneously poker (don't know the other side's strategy) inside Monopoly (the other side has more resources to run the dispute). And they approach it as Snakes and Ladders (hoping the court will "see the truth").
Three wrong games at once. Outcome: after two years of dispute they accept a settlement at, say, 55% of the claim. They paid the lawyer, paid the court fees, spent two years in stress. They could probably have had 70% in three months — if from the start they had known which game they were playing. Poker: signal a credible willingness to go to court (don't just hope the court rules). Monopoly: cost vs. value of the claim. And not Snakes and Ladders — because a court does not "look for" truth on its own. A court rules on what a party procedurally puts before it.
¶ Part six: The meta-game — when to change games
The best players in any game are not primarily those who play best within that game. They are the ones who recognise which game they are playing — and who can change the game when it doesn't suit them.
Due diligence looks like chess — but if the other side is hiding information, it is poker. And if the other side has unlimited resources and time, it has a Monopoly component. A lawyer who plays chess in a poker game loses, because they analyse the position instead of reading the opponent. A lawyer who plays poker in a chess game loses, because they bluff instead of calculating.
And a lawyer who plays Snakes and Ladders? They don't lose the case. They usually lose the profession.
Thomas Schelling, Nobel laureate in economics, described in The Strategy of Conflict (Harvard University Press, 1960) the concept of the commitment device (a deliberate, irreversible restriction on one's own options as a strategic move that changes the opponent's perception). In poker: a player who credibly commits never to back down paradoxically gains negotiating strength — the other side knows they cannot bluff. In law: a client who visibly invests in dispute preparation (expert opinion, forensic audit, PR strategy) signals to the opponent: "I am in this. I will play this game to the end." (Risk: if the commitment device fails — if the client backs down — credibility falls faster than it was built.)
And the strongest commitment device in law, paradoxically, is not a set of procedural acts. It is the choice of a lawyer who will tell the client which game they are playing — even when what they hear is uncomfortable.
| Game | Client's main task | Lawyer's main task | What typically spoils it |
|---|---|---|---|
| Chess | Patience, willingness to sacrifice partial points | Deep analysis, pattern recognition | Trying to "score" on every clause |
| Poker | Discipline in signalling, control of information | Reading the other side, calibrating the bluff | Premature reveal of how much you want it |
| Monopoly | Realism about own resources | Looking for asymmetric tactics, changing the rules | Trying to "outspend" the stronger party |
| Snakes and Ladders | Understanding that this game does not lead to the goal in law | Saying it clearly, even when the client doesn't want to hear | Belief that "justice will prevail" on its own |
¶ Part seven: What to do about it in practice
If I had to compress the whole of the above into a few operating rules, it would look like this.
1. The first question is not "are we right" but "which game are we playing". Rightness determines whether it is worth playing at all. The game determines how. Without an answer to the second question the first is academic.
2. Diagnosing the game is teamwork, not intuition. Sit down over the situation with a colleague, look at it from the other side's perspective, articulate the alternatives. The game you think you are playing is often just the one you can see from your own angle. I unpacked this dynamic in the piece on psychology of the parties.
3. Each game has its signals and red flags. The other side is silent for weeks? Possibly Monopoly (time is on their side). The other side sends an aggressive letter immediately? Possibly poker with a weak hand. The other side wants to "decide on principle"? Possibly Snakes and Ladders — from their side. Reading signals takes calibration, not certainty.
4. Changing the game is a legitimate strategy. If you are losing at Monopoly, move the game into chess (position) or poker (information). If poker is not playing for you, move it into chess (transparent dispute over position). If someone is playing Snakes and Ladders against you ("the just pressure"), don't show them what real chess looks like — that will only frighten them.
5. Sometimes the best move is not to play. That is a decision too, not resignation. A client who chooses not to play a Monopoly they cannot afford often gains more than the one who jumps in hoping to last.
6. And the most important thing — frame the game transparently with the client. A dispute is a joint decision of client and lawyer. Not a performance by the lawyer that the client passively watches. A client who understands which game they are playing and why is an informed co-decider. A client who doesn't is a hostage.
Are you facing a dispute, transaction or negotiation and unsure which game you are actually playing? In our practice we usually start every larger matter with a diagnosis of the game — not by drafting a pleading. Write to us before you commit to a strategy you wouldn't choose six months later.
¶ A note at the end
Four games. Four sets of rules. Four kinds of thinking. And one question we put on the table at the start of every larger matter:
Which game are we playing?
If chess — we prepare the position. If poker — we read the opponent and calibrate the signal. If Monopoly — we measure forces and look for the asymmetry that can be turned. And if the client is playing Snakes and Ladders — we agree with them that this particular game is usually not worth it in law.
And then we go to play — together, if possible, and the right one, if possible.
Related: on why rationally-economic logic fails altogether in some disputes, see the piece on the irrational adversary. On the lawyer being often short of the layers law cannot reach, see the text on the role of the strategist of non-legal problems. For practical application I recommend What litigation and business negotiation have in common.
¶ Recommended reading
- Bazerman, M. H., & Neale, M. A. (1992). Negotiating Rationally. Free Press.
- Baumeister, R. F., Bratslavsky, E., Muraven, M., & Tice, D. M. (1998). Ego Depletion: Is the Active Self a Limited Resource? Journal of Personality and Social Psychology, 74(5), 1252–1265.
- Danziger, S., Levav, J., & Avnaim-Pesso, L. (2011). Extraneous Factors in Judicial Decisions. PNAS, 108(17), 6889–6892.
- De Groot, A. D. (1946). Het Denken van den Schaker. Amsterdam University Press.
- Ekman, P. (2003). Emotions Revealed. Times Books.
- Galanter, M. (1974). Why the „Haves" Come Out Ahead: Speculations on the Limits of Legal Change. Law & Society Review, 9(1), 95–160.
- Galanter, M. (2004). The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts. Journal of Empirical Legal Studies, 1(3), 459–570.
- Kahneman, D., & Tversky, A. (1979). Prospect Theory: An Analysis of Decision under Risk. Econometrica, 47(2), 263–291.
- Kahneman, D. (2011). Thinking, Fast and Slow. Farrar, Straus and Giroux.
- Kotov, A. (1971). Think Like a Grandmaster. Batsford.
- Lerner, M. J. (1980). The Belief in a Just World: A Fundamental Delusion. Plenum Press.
- Nash, J. F. (1950). The Bargaining Problem. Econometrica, 18(2), 155–162.
- Schelling, T. C. (1960). The Strategy of Conflict. Harvard University Press.
- Simon, H. A. (1955). A Behavioral Model of Rational Choice. Quarterly Journal of Economics, 69(1), 99–118.
- Thaler, R. H. (1980). Toward a Positive Theory of Consumer Choice. Journal of Economic Behavior & Organization, 1(1), 39–60.
- Tversky, A., & Kahneman, D. (1974). Judgment Under Uncertainty: Heuristics and Biases. Science, 185(4157), 1124–1131.
- Von Neumann, J., & Morgenstern, O. (1944). Theory of Games and Economic Behavior. Princeton University Press.
- Weinshall-Margel, K., & Shapard, J. (2011). Overlooked Factors in the Analysis of Parole Decisions. PNAS, 108(42), E833.