VEGAS & LITIGATION

Posted on November 30, 2015 in Consulting

Today, I want to dismantle the notion that a jury trial is like a roll of the dice at a craps table.   Litigation has nothing to do with dice.  The better analogy is poker, my favorite game.
I recently had an enjoyable trip to Las Vegas with a few friends. When in Vegas, I am always drawn to that raucous attention that surrounds the craps tables.  But I last played craps in 1996.  I spend my time far away from the fun-loving hip people at the craps tables, instead submerged in the poker room where people of all ages congregate to show off their strategy, math skills, and smarts.  These same qualities, and not the luck of the dice, determine success in litigation.  Let me explain…

Know “your hand”

We all know a good starting hand in Texas Hold’em: a pair of aces (“bullets”), ace-king, and suited big connectors.  We also know what a good defense looks like in an employment claim.  Rather than looking for high cards and suits (not lawsuits but: ♣ ♠ ♦ ♥),  we focus on key questions:

• Is there good documentation to support the decision?
• Was the employee given a fair opportunity to correct his behavior?
• Was the discipline consistent with the employer’s practices?
• How long was the employee with the company?
• Was the employment decision vetted by management in consultation with human resources?

Employers need to know their “hand” before acting on a significant employment decision.

You can improve your position at poker and in litigation

Sometimes my son (see photo on right from summer vacation) and I watch Youtube segments of World Series of Poker tournaments.  We love to study how players act as they try to improve their position at the table with the flop, turn, and river. Smart litigators draw on similar strategies working to improve their hand as the case progresses.

My trademark —  Helping Employers Avoid the Courthouse®  — reflects my strategy working with clients.  I love helping clients strategize an approach to a complicated situation.   Sometimes we create the facts that determine the hand we will be dealt.    For example, when we counsel a client to place an employee on a performance improvement plan rather than terminate we are consciously aware that our hand is not yet strong enough to justify firing someone.  Sometimes, my job is to help a client decide that waiting to terminate is a mistake and that its time to cut the relationship before the hand goes south.  It’s all about reading the facts (the hand) to decide how to best act.

You can exit litigation and poker graciously

I quickly learned to hate the rollercoaster ride from euphoria to depression that I will always associate with playing craps.  While emotionally exciting, there is zero skill in craps.  Just as you are riding high, suddenly the 7 hits and all your money goes away.  Hence, I gave it up years ago.

As Kenny Rogers explains, Poker, in contrast, allows a player to “know when to fold them.”   So too employers need to assess the situation and know how to play a weak hand.  Indeed, the real talent in the practice of law is not winning a good hand but knowing how to play out weak cards.

I hope you enjoyed my thoughts for the month, and more important, I wish you and your families a wonderful holiday season.