Many lawyers view litigation as just a game, a game to be won at all costs. Electronic discovery is just part of the game. The goal for such lawyers is not justice, and certainly not truth. The goal is to win the game by any means possible. It’s about the personal profit and power that comes from winning, either by final judgment or settlement. Law gamers don’t care about justice. They are only in it for the money.
Truth Is Not Just A Construct
As a consequence, gamer lawyers do not see e-discovery as a way to get at the truth of a dispute. They don’t care about the truth. Non-gamers ask for and look at documents to try to find out what really happened. But not gamers. They view facts as malleable. E-discovery for them is just a way to find enough documents to construct a story. They only care about whether a story will likely persuade a judge or jury to rule in their client’s favor. Not whether it is true.
Gamers view requests for discovery as potentially dangerous to their constructs. For that reason, they will play endless, elaborate games to try to hide the facts. For them hide-the-ball is just a game, one that might have economic consequences if they are caught, but they rarely are. So the games go on.
E-Discovery Creates Leverage
Gamer lawyers use discovery, especially e-discovery, as a way to impose an economic burden on the other side, the person or person they are playing against. If they can make a document production expensive enough, they can increase their leverage. They can drive up the settlement value of a case. They can win and so make more money.
Conversely, if they dump a big enough pile of nearly irrelevant documents on the requesting party, they can place a counter-burden. This burden of review creates an economic impact. It may also be a good way to hide-the-ball. A smart move for a true gamer. Gamers lawyers play on both sides, plaintiff and defense. Greed is an equal opportunity employer.
Gamers and Gamesmanship
Gamer lawyers tend to think that all lawyers are gamers like them, but just don’t play as well. They assume that you have as little regard for the truth as they do. They assume that you, like them, are just trying to win at all costs. They assume you are trying to hide the ball just as much as they are. They assume your requests for production are as exaggerated and extortion oriented as theirs.
If someone, especially an opposing counsel, calls them on their gamesmanship, they think that too if just another game tactic. They tend to view all lawyers who call them on their gamesmanship as just irritated gamers or spoiled sports. No doubt that is what they are thinking about me right now.
When a gamer does sometimes realize that the other side is hamstrung by rules, and is not a gamer like them, they tend to think that they are up against a naive patsy and play even harder. Nothing gets them off their game.
They are delighted when their adversary is a moralist. They are more than happy to take advantage of that. A true gamer does not care about rules of any kind. Rules are meant to be broken, if you can gert away with it. Cheating is just another game tactic. Gamers only care about winning. They find it hard to believe that everyone is not in it just for the money.
Do You Think Gamers Are A Minority?
Fortunately, in my experience, litigators with that kind of win-at-all-costs mind-view are a small minority, but, nevertheless, they are often very successful. What do you think? How common do you think this amoral attitude is among litigators? Compete the poll below and share your thoughts. It is anonymous.
Are Gamers Unprofessional Money Grubbers?
I personally consider the mind-view or gestalt of gamer lawyers to an over-competitive plebeian view of litigation. I consider them unprofessional and unethical because this approach exalts winning and personal profit over the duty of a lawyer to serve as an officer of the court. To me this service of justice is a near sacred duty. This is why I became a lawyer, not to make money or amass power, and certainly not just to play games. But what do you think? Am I just a naive idealist? An irritated gamer? Share your view with this anonymous poll.
Games, Gamers, and Game Theory
After all of this, it may surprise you to know that I myself am a gamer. I like games, especially video games, and I even find game theory somewhat interesting.
I have been playing games all of my life, and computer games since Pong. The first computer programs I ever wrote in the early 1980s were games, mostly for my kids. They still remember my Mr. Computer Head, the world’s first make-a-face program, which I created on my Texas Instrument 99/4A using TI basic, assembly language, and some macine code. It had color graphics, music, some animation, and moving pixels (sprites). It even had one of the first speech synthesizers. After you assembled a face, Mr. Computer Head would smile approvingly and say: I sure look good now. It was fun creating and playing. I don’t have time to play much these days, but I still keep up with the latest thing. Just last week I played the new Xbox 360 Kinect Star Wars game. Way cool.
Yes, I love games, but only when there are rules. Without them it is just anarchy. Moreover, as an adult I know that there is a time and a place for games and gamesmanship. Litigation is not the time, not the place. Truth and justice are more important than winning. Making a contribution to society is more important than making money.
I am also interested in game theory, although no expert on it. As Wikipedia explains, game theory is the study of strategic decision making. It focuses on the interplay of conflict and cooperation and for this reason is a natural for legal analysis.
Grossman and Cormack on Game Theory, Ethics, and E-Discovery
The role of game theory in e-discovery was considered in an article by Maura Grossman and Gordon Cormack, Some Thoughts On Incentives, Rules, and Ethics Concerning the Use of Search Technology in E-Discovery (Vol. 12, Sedona Conference Journal, 89-104) (2011) (hereinafter “Some Thoughts“). This article has been a sleeper, but well worth reading for the game theory discussion alone, although this is just one part of their interesting article on ethics and search.
The ethical issues involved in Some Thoughts are search specific and thus very timely to the newsworthy cases of the day. It considers the ethics of a responding party who might wish to game the system by deliberate use of ineffective search and review methods. It also considers the ethics of a requesting party who might wish to game the system by deliberate use of overly broad requests for production, either to hide the true nature of the information being sought, or to ensure that the pertinent data are produced, even if the responding party is less than diligent in its search efforts. Some Thoughts at pg. 95.
The bottom line for me on game theory and e-discovery is that it shows that any purely rational approach to discovery, one that disregards ethics and good faith, is doomed to failure. It is a game that cannot be won. I base this conclusion on what is called in game theory as the Prisoner’s Dilemma. Here is how Grossman and Cormack explain it:
The “litigator’s dilemma” referenced in the second quotation above refers to the well-known characterization of discovery as an example of the hypothetical scenario from game theory, the “prisoner’s dilemma,” in which there is mutual advantage to both parties in pursuing common interests so long as both act cooperatively and in good faith, but tremendous disadvantage to the party that acts cooperatively and in good faith, if the other does not.14 There is a lesser disadvantage – but a disadvantage nonetheless – if both parties act uncooperatively and in bad faith. According to game theory, the “rational choice” in this situation is for each party to act uncooperatively and in bad faith, incurring the lesser disadvantage, so as to avoid the risk of the more severe disadvantage. Although the end result is disadvantageous to both (relative to acting cooperatively and in good faith), the disadvantage is less than would be incurred by one party behaving well, when the other party behaves poorly. Uncertainty, fear, and distrust tend to preclude the mutually advantageous outcome. …
Whether or not e-discovery truly is a prisoner’s dilemma, the belief that it is may be self-fulfilling – with the effect of incentivizing counsel for either party to engage in bad behavior, in the belief that it is the rational choice under the circumstances.
Some Thoughts at 96-97. Here is how my favorite cartoonist Scott Adams’ explains it:
Grossman and Cormack end their Some Thoughts article with the following conclusion:
Whether in the capacity of counsel for the responding party, counsel for the requesting party, or as an officer of the court, a lawyer has many incentives to conduct an efficient and effective search. Incentives to conduct an ineffective or inefficient search arise largely from attempts to game the system, fear that an adversary will game the system, insufficient knowledge of the efficacy and cost of available search methods, and financial profit from the use (or failure to use) particular search methods. By and large, these incentives tend to be neutralized by the existing rules and ethical proscriptions when counsel are knowledgeable and competent with respect to search methods in e-discovery and strategies for their optimal use. The net effect is that the approach most beneficial to the client, and to the justice system, as well as least likely to violate the rules or ethical proscriptions, is to make an informed choice of the most effective, most efficient search method. Lawyers should not assume or insist that existing practices – such as exhaustive manual review – are always the best choice in the face of growing evidence that other methods can achieve as good, if not better results, at a fraction of the cost.
Litigation is not a game. It is an important governmental process central to our democratic system. Law is not a mere business. It is an important profession, a calling. Truth and justice, law and ethics, are core cultural values.
Lawyers who ignore these values and employ game tactics are doomed to fail. If their opposition is also a gamer, then both will both lie and cheat each other. The clients on both sides will lose. If their opposition is not a gamer, they will also lose as soon as the judge who controls the proceeding catches on to their gamesmanship. Once they are exposed, they are done. You can easily stop unethical gamers by exposing them.
Message to lawyer gamers: quit the game. Play video games instead. If you just went into law to make money. Get out. Go into business. They have different ethics, different rules. You can win there. Maybe. But you cannot win here. The profession, especially the judges, will make sure of that. So will thousands of lawyers like me. We care about the law, even if you don’t.
Thanks for the plug! I want to expand on something that our paper says. Maura and I concluded that e-discovery was not an example of “prisoner’s dilemma” but of “iterated prisoner’s dilemma.”
While uncooperativeness is a winning strategy for prisoner’s dilemma, it is not a winning strategy for iterated prisoner’s dilemma. An aggressor who attempts to play prisoner’s dilemma does so either because they are unaware that a different strategy is needed to win iterated prisoner’s dilemma, or because they hope the opponent is unaware.
An e-discovery opponent who employs uncooperative strategies that would win prisoner’s dilemma may be defeated by an opponent who plays a defense strategy that wins iterated prisoner’s dilemma.
For either party, the answer is to inform one’s self. The rational and ethical choices coincide.
I had to look up “iterated prisoner’s dilemma” so, to save the rest of you time, here’s the link: http://en.wikipedia.org/wiki/Prisoner%27s_dilemma#The_iterated_prisoners.27_dilemma
Excellent blog. Dead on target. Ethics requires a willingness to lose.
Nobel thoughts as always Ralph. Having worked for lawyers for 30 years now, I can tell you that the best of lawyers game at some level. When the facts are for you, you don’t need to game. When the facts are against you, most lawyers seem to gravitate to whatever is going to provide some leverage. Go figure. They are advocates. Does not make it right, just reality for as long as any of us can remember. Did not start with ESI.
Having been a lawyer for thirty-two years now I care about the law too much to just smile and let it slide. Just because it has always gone on does not make it acceptable. Your so-called “best of lawyers” are just morally weak. You may have thought they were among the “best,” but, sorry, you confuse “best” with successful. The “A” team does not need to cheat, and when the facts are weak, they don’t turn to lies, they turn to the law.
In the real world, there are consequences beyond one case or “game.” One consequence, I suppose, is the knowledge bestowed on the opponent that leads to failure in iterated prisoner’s dilemma. Games played become known to other lawyers and judges, decreasing success not only against opponent 1, but succeeding opponents. Another consequence is the fact that the client will ultimately recognize the costs associated with using an unethical gamer and choose another, more ethical but successful lawyer; i.e., a more economical one. At some point, odds are that the gamesmanship will lead to sanctions, hopefully powerful enough so the “game over” light appears.
I concur with Ralph re the previous post: the “best of lawyers” do not “game at some level.” The best of lawyers are tenacious, prepared, and work hard, which overcomes many efforts at gamesmanship. They will lose before they cheat. This gives them the cachet and credibility with the court to call the gamers out and prevail in re-leveling the playing field or achieving sanctions. I agree with Maura and Gordon that it is a trap to stoop to the opponent’s level. By definition, and in practical terms for peer review for the American College of Trial Lawyers, etc., those who game the system as defined in this blog are NOT the best of lawyers. I, too, tried cases for more than thirty years as a lawyer or judge and chaired the committee that certifies lawyers in Florida, so I saw the consequences of both gamesmanship and taking the professional high road.
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Ralph, do you think better and readily available technology would help level the playing field, taking away some of the gamer’s advantage, if not provide the ability to expose them more easily?
I do yes. But technology can also be misused to help the lawyers and parties who do not care about our justice system. That is why it is critical that we be better at the technology than the “bad guys” who are only in it for the money. So far, I am pleased to say that we are. But the next generation of lawyers must step up to the plate and continue our honored legal traditions in the face of an onslaught of new technologies. It is a never ending battle.