William James Checks in the Dark

"What difference would it practically make to anyone if this notion rather than that notion were true? If no practical difference whatever can be traced, then the alternatives mean practically the same thing, and all dispute is idle. Whenever a dispute is serious, we ought to be able to show some practical difference that must follow from one side or the other’s being right. ...

It is astonishing to see how many philosophical disputes collapse into insignificance the moment you subject them to this simple test of tracing a concrete consequence. There can be no difference anywhere that doesn't make a difference elsewhere—no difference in abstract truth that doesn’t express itself in a difference in concrete fact and in conduct consequent upon that fact, imposed on somebody, somehow, somewhere and somewhen."

~William James, "Lecture II: What Pragmatism Means", in Pragmatism: A New Name for Some Old Ways of Thinking (1907)

As a philosophy major, I was always strongly drawn to pragmatism because of its emphasis on linguistic clarity and logical consequences. The core principle of pragmatism, stated by philosopher William James above, can be paraphrased like this:  A difference, to be a difference, must make a difference.

I was reminded of this core principle of pragmatism this past week when an interesting debate erupted on the All Vegas Poker discussion forums over the relative merits of a common poker maneuver—checking in the dark. [FN1]  For those unfamiliar with the term, checking in the dark (or "checking dark") simply means that the player first to act on a subsequent betting round exercises his betting option by checking before the next board card(s) are put out by the dealer, rather than waiting to check until after the player is able to see the board card(s). Checking in the dark has been popularized by the televised antics of players like Phil Hellmuth (who at times seems almost addicted to the play). But I have to wonder, have any of the players who routinely employ the maneuver actually analyzed whether checking dark is a smart play?

Applying the principles of pragmatism—or Sklansky's Fundamental Theorem of Poker, if you prefer—if checking dark is a good maneuver, it will give a poker player some advantage over the player who employs the more traditional check. Now the player checking dark invariably will be playing the hand out of position, placing them at a distinct disadvantage. A player first to act will typically end up checking a rather high percentage of the time, either out of weakness from missing the board, or out of strength when disguising a hand that strongly connected with the board. However, a player first to act will find that leading out with a bet is advantageous in a variety of situations, including:

• Flopping two pair or a set on a draw heavy board.
• Betting a middle pair or bluffing on a dry, junky board.
• Blocking a bet the first to act player cannot call.
• Putting the opponent to the test on a scary board (e.g., a flop with an Ace, or a turn or river card that completes an obvious draw).

Now this isn't to say that a player will lead out with a bet on all of these boards on all occasions. The point is that checking dark deprives a player of the option of making these plays. Clearly giving up the option to lead out with a bet on hands where doing so is the correct play is -EV. So, if it has any value, the dark check must be a sufficiently powerful, profitable maneuver to overcome the disadvantage of giving up the ability to bet boards where doing so is the correct play.

Given the obvious disadvantages caused by checking dark, what are the possible advantages of checking dark? In all of the discussions I've heard and read on the subject, three reasons for checking dark come up the most frequently: a) checking dark reverses the position of the players when heads up, b) checking dark disguises the strength of a player's hand, and c) checking dark prevents a player from giving out information on the strength of his hand. On closer examination, all three justifications are spurious.

With respect to "reversing position" of the players, checking dark simply does not reverse the positions of the players, either actually or effectively. The player checking dark still acts first, he simply exercises that option prior to the next board card being put out. Here we return to the principles of pragmatism—what is the difference between checking dark and checking normally? In terms of position, there is no difference. If the player first to act checks, the other player can bet or check behind as usual, and it doesn't matter if the first check was dark or not. If the first player to act in a heads up situation checks dark, and the other player checks behind, the dark-checking player does not miraculously gain the ability to act, as they would if they were in position. So, as there is no difference in action whether the opening check is dark or normal, there is no positional advantage gained by checking dark.

So what about the claim that checking dark disguises the strength of a player's hand? This argument essentially states that because the player first to act usually checks, a dark check prevents the other player from knowing whether a flop (or turn or river) was helpful to the dark-checking player. Let's assume a player acting first would normally check 70% of the time out of weakness, check 10% of the time out of disguised strength, bet 10% of the time out of strength, and bet 10% of the time as a bluff. A dark check has no effect on the check out of weakness play or the check out of strength play, as a dark check and a regular check each look the same to a rational opponent. But a dark check deprives the player of the ability both to bet strong hands and to bluff. So, a dark check gives no advantage to hands to a player who wants to check, but hurts a player by depriving him of the chance to bet certain hands. Assuming a player balances his donk bets between betting strong hands and bluffs, a dark check that takes both plays out of the equation simply does nothing to disguise the player's hand that cannot be accomplished by normal, solid play. But if a player is stupid enough only to bet his strong hands out of position, then a dark check might in fact be a decent play, though the move is likely more than offset by those hands where a donk bet is the correct play and the dark check leads to a check behind. Of course, such a player has a whole other kettle of fish issues to worry about.

Finally, let's look at the claim that a dark check prevents a player from giving out information as to the strength of his hand. We just looked at situations where a player checks his weak hands and bets his strong hands, but what about the more sophisticated player whose betting patterns do not reveal his hand strength? In these situations, advocates of checking dark maintain that the maneuver prevents the player from revealing whether they are strong or weak by taking out of consideration elements such as facial reactions and timing of response. Of course, this argument assumes the dark-checking player never looks at the board before their opponent acts. But if a player is bad enough to give off reliable physical tells about the strength of his hand, then checking dark is almost certainly the least of his worries—any decent player will simply eat the dark checker alive based on his physical tells which he will eventually have to give off when he inevitably looks at the board.

In summary, then, for most players checking dark is almost certainly a -EV maneuver compared to simply playing a hand normally and checking when appropriate. For a small handful of players—multiple WSOP bracelet winners and tell-spewing donkeys—checking dark might occasionally be a decent play. In other words, although plenty of players have convinced themselves they are making a sophisticated play by checking dark, their thought process is flawed. Good players don't check dark. [FN2]

"A great many people think they are thinking when they are merely rearranging their prejudices."

~William James

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[FN1]  The debate was reminiscent of a similar debate on the AVP forums a few years back. Also, as is usually the case, Poker Grump has already weighed in on the debate with this thoughtful post.

[FN2]  Of course, players like Phil Hellmuth are sufficiently better than most of their opponents that they can overcome the -EV of using the dark check. That doesn't mean that checking dark is a good play on its own merits.

One Dealer to a Hand

Last month, I was playing a session of $4/$8 Omaha8 (Gamboool8) at the Venetian poker room. As my readers know, I enjoy the Pot Limit all-high version of Gamboool, but the hi/low split version is still a game I’m trying to learn. I have done some reading about it, and played occasionally in the regular Friday morning $6/$12 game at the Meadows ATM. But a low stakes game like the Venetian spreads is a solid training wheels opportunity that was too good to pass up, particularly on a night where I had decided to lock up my poker profits for the trip and was looking for a recreational game to kill a few hours.

The table was generally friendly, and the action was pretty straightforward. One of the young gun local pros at the table openly discussed his plans for “getting baked” later in the evening, which was hardly surprising once I learned he had attended Grinnell College back in Iowa (a fine institution of higher learning proud of its ultra-liberal culture). When he later let on that he was born and raised in West Virginia, I inquired how he wound up in small town Iowa for college. “Because I wanted to hang out with hippies,” he replied rather matter-of-factly.

Now one reason I enjoy the various forms of Gamboool so much is that novice and casual players are prone to misreading their hands and making rather boneheaded mistakes. Often players making the transition from Hold ‘Em forget the “must use exactly two cards from your hand” rule, and put money in the pot thinking they have a flush, straight, or even full house when they actually have a very weak hand, or they fail to realize when their made hand on the flop or turn has been counterfeited by the river. These mistakes are more pronounced in the hi/low version of the game, where novice/casual players have two different hands to misplay and misread each time they get involved in a pot. Combine these hand reading mistakes with a Hold ‘Em mentality about hand strength, and novice/casual Gamboool players are among the juiciest fish around.

Since it was the smallest limit game being spread at the time, there were three tables with maybe six solid players spread among them (and no, I do not count myself among the ranks of solid Gamboool8 players). So most pots were multiway to the river, and the showdown often resembled a troop of monkeys, cackling and picking lice out of their hair while they figured out what high and low hands they held.

On one hand, I was in late position with As-Qx-Jx-Ts. Now this is a solid high-only hand, but without a low draw, it’s a little more speculative in Gamboool8 since my hand is looking to connect with a high board for a scoop pot (and on a high-only board, you typically get fewer bets in the pot from the low chasers). Still, my hand had some decent value, and I limped in along with pretty much the entire table. The flop was decent, J-T-5 with one of my suit, giving me top two pair (on the rare Omaha board where that holding has much value), along with a gutterball Broadway draw and some potential additional straight and flush draws that could develop on the turn (there’s always hope in Gambool). Six or so of us called the big blind’s bet; I probably should have raised here, but I tend to be a little passive in early rounds of Gambool8 with just altos dos pairs. The turn was a beautiful King, giving me Broadway and the current nuts, but also foreclosing any low draw while also putting a backdoor flush draw (not mine) on the board. A middle position player bet, got a couple of callers, and I raised, getting two callers. The river was an annoying offsuit Queen. Obviously I had just been counterfeited, chopping the pot with any player holding an Ace with any other Brodway card. Still, when it checked to me, I bet, hoping to get some value from a yahoo with a King-high straight, or maybe even getting an inattentive player to fold a Broadway chopping hand. Unfortunately, I got one caller.

I rolled over my hand and declared, “Nuts. Broadway.” I waited for the other player to table his hand, but as is often the case with Gamboool players, he held his hand up in front of him gin rummy style and shifted cards around as he tried to parse out what his best hand might be. The player held an Ace, which I could see, but the player was confused: “I don’t think I can make Broadway.” The dealer was looking at his hand and helpfully blurted out, “Oh yes. You got it.” The player looked back at his cards in confusion. The dealer said, “You have the Ace and the King, that’s Broadway.” The player yanked those cards out, put them on the table, then threw his other two cards down as well. Presto, chopped pot.

It should go without saying that the dealer was out of line here. Nobody, including the dealer, should help read a player’s hand. This is especially true in Gamboool, where players often misread their hands and muck winners. In a bit of irony, this dealer had earlier warned players about reading hands that weren’t tabled. To be fair to the dealer, however, the practice is endemic to low stakes Gamboool, and short of tasering offenders, the practice is just a hazard of the game. But, for those of you playing Gamboool tempted to be the helpful hand reader, just don’t.

Just STFU.

A Magical Night With Penn & Teller & Grump

On my recent trip to Vegas, I needed at least one evening away from the poker tables and decided to take advantage of one of the great things about Vegas—its cornucopia of great restaurants and entertaining shows. I have attended many of the Cirque du Soleil shows (some of them more than once), so I was looking for something a little different. Considering I recently read Penn Jillette's book "God, No!", and since the sig other and I follow Celebrity Apprentice on which Penn was a contestant this season, the choice was obvious. A couple of texts was all it took to strong arm Poker Grump into being my wing man for the evening (Grump is also a fan of Penn & Teller—see HERE and HERE for a couple of his posts that reference Penn & Teller shows). As a surprise bonus, Grump even treated me to a great meal at Lindo Michoacan, a "local" Mexican restaurant a mere 10 minutes or so from the Strip (I enjoyed the spicy-but-not-hot house salsa and definitely loved the slow-roasted carnitas entree).

Penn & Teller have been performing at the Rio for over a decade now, meaning their current show was running for several years before my first trip to Vegas in July 2006. I originally got hooked on Penn & Teller from their appearances on various late night TV shows during my college days in the late 1980s and early 1990s, not to mention their co-starring role in Run DMC's video for "It's Tricky" [FN1]:




I loved Penn & Teller originally because of their irreverent showmanship, often going so far as to reveal how they performed the trick, giving a wink and a nod to the audience who not only want to be fooled, but to have an idea of how they were fooled. Frankly, Penn & Teller have based their success on the genius concept of acknowledging to the audience that they are going to try to fool them, and then proceeding to do just that. They are really just the flirting teens of magicians, showing just enough flesh and leading their audiences on with promises of more revealing poses later. Two of their early tricks were memorable enough to have stuck with me nearly for nearly two decades. The first is the Rocket trick, which is still one of my favorite magic performances of all time:




The second memorable old-school trick is a variation on Cups and Balls:




Flashing forward to the recent show at the Rio, which began with a pre-show opportunity for the audience to inspect a crate and an envelope which were props in later tricks. Grump and I were impressed by the skill of the two ushers who assisted audience members going up on the stage by taking their beverages and remembering whose drink was whose when those folks left the stage.

The show itself was a phenomenally entertaining hour and a half, filled with new tricks and classic tricks from  past Penn & Teller shows. The show opened with a new Penn & Teller "meta-magic" trick, where an audience member participates in the trick and the audience is in on the trick—or so they think, until a final twist leaves a theater full of scrambled brains. They call this trick "Cell Fish" and it is a quite entertaining in-person trick (fast forward to the 4:25 mark for the trick; the video doesn't show it well, but the bucket Teller brings on stage during the trick ends up hanging above the audience participant for the duration of the trick, adding to the mystery of the final reveal):



The diabolical secret of the trick is revealed in this straight-from-the-iPhone footage. I have to admit, I fell for the Cell Fish trick hook, line, and sinker ...

Penn and Teller have a great rapport, blending Penn's fast-talking and often humorous showmanship with Teller's sly facial gestures and artistic sleight of hand. Even though they have performed many of these tricks hundreds of times, they still feel fresh. Both Penn and Teller are avowed libertarians, and they work some political statements into their tricks. For example, any magician can conjure a person from thin air. It takes Penn and Teller to conjure a scantily-clad woman holding a rocket-propelled grenade out of a TSA-certified metal detector. Penn and Teller also put their own personal twists on classic magic tricks. Plenty of magicians make people disappear; but Penn makes Teller disappear from a helium-filled garbage bag. Similarly, there are plenty of magicians who levitate a ball, but Teller adds an artistic element, creating a ball which is also a pet that learns to do tricks.

I enjoyed every bit of the performance, and every trick was well-executed and entertaining. The showstopping dénouement—the famed "double bullet catch"—was even better in person than on TV. But probably my favorite trick of the night was Teller's solo performance of the Goldfish Bowl trick:




It was a stunning illusion, even more so considering our seats were only a few rows back from the stage. During the performance, I knew Teller had to be producing coins hidden in various spots, but the execution was flawless. As for the production of the goldfish, well clearly there had to be a secret compartment, but where and how Teller triggered it sure fooled me. It was just overall a wonderful trick. Now after seeing the video several times, I have a pretty good idea as to where the coins are hidden and how the water tank operates. Watch the video again and see if you catch any clues to how the trick works; some of the trick can be figured out from the video, but you won't have one important fact which was known to me from having watched the live performance. I'll post my thoughts at the end of this post. [FN2]

Altogether Penn & Teller was a great way to spend an evening and I plan to go back for another performance, maybe this December during WPBT. In the meantime, remember that although Vegas is a great place for poker, there are plenty of other entertainment options that provide a fun change of pace to tilting d-bags with the Spanish Inquisition.

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[FN1]  Run DMC's "Run Like Hell" album was the pregame soundtrack for my senior year high school basketball team—in rural western Nebraska in late 1987. How's that for the influence of early MTV in distributing urban hip hop music to the furthest reaches of lily-white America? "It's Tricky" is a regular part of my poker music mix, along with "You Be Illin'". I can even still recite the lyrics to both songs, which demonstrates the sticking power of music from our youth, along with proving I'm clearly not maximizing my brain's potential.

[FN2]  SPOILER ALERT! I think the coins are hidden in various spots—behind the chair, in Teller's pants pockets, in the towel on the lady's lap, in the fish tank (more in a moment), and in the lady's hands (again, more in a minute). Basically, look anywhere either of Teller's hands touch an object before he produces a coin (and keep in mind he is a master of palming and concealing items). Now for the tank; notice that there is a dark semicircle in the top middle of the tank that looks to be merely a shadow from lighting. Whenever Teller uses one hand, he keeps it high in the water within that dark area. Now here's what appears to be the key—the tank has a full mirror below the dark semicircle. Whenever Teller puts both arms in the tank he plunges them in quickly and deeply. His left arm is then reflected and you think you see his right arm, which is actually behind the mirror picking up coins or releasing goldfish. But the tank design is so well-crafted, and Teller choreographs the action so well (with his quick moves and the water turbulence helping cover up the deception), we are easily sold on the illusion being real. In the video above, look at the brief closeup of the goldfish; you can see some reflections in the middle of the tank where you usually wouldn't expect them (I suspect lighting effects minimize or eliminate those kinds of reflections for the live audience). Also, the tank is on the side of the stage which keeps the audience from seeing the side of the tank, while the other side is blocked by Teller; the tank's octagonal shape probably also allows some mirroring on the sides to hide the back part of the tank. As for the lady, she appears to be a plant who is in on the trick (the same or a very similar lady assisted with the live show I attended). This explains how the coins get in her hands, and allows Teller to palm more coins to drop from her glasses, etc. This also explains how she doesn't notice the coins in the towel or the strange construction of the tank. I'm probably missing some details, but these appear to be the basics for the trick, which I still love as much as when I saw it live. Despite all the non-traditional patter and showmanship, Penn and Teller are still talented technical magicians at heart.

An Irresistible Duck Pho Meets an Immovable Inquisition

Most of my readers also follow Poker Grump, so y'all should know about the Deuce-Four, which the Grump touts as the mightiest hand in poker. [FN1]  Of course, my friend CK, a/k/a the Black Widow of Poker, contends that "crubs" (clubs) are the strongest hand, because "crubs always get there" (though there is the small matter of needing a "crubs whistle" to summon the crubs). Naturally, one has to wonder what would happen if the Duck Pho ran into Crubs. In fact, Grump has already wondered about that conflict, a potential "irresistible force meeting an immovable object" situation. Based on field research to date (see HERE, HERE, and HERE for in-depth analysis), data are inconclusive.

In any event, Crubs and the Duck Pho, powerful as those poker demi-gods are, must bow to the transcendent majesty of the Spanish Inquisition. crAAKKer reader "RedXBranch" shared the following story as a comment to one of my recent posts:

I have been dying to tell you of a big win recently at our local casino in a $1/$2 cash game. I played the "Spanish Inquisition" against a lady specifically because she had played "the Grump" 4 times. The hand went: EP raise to $7, followed by 2 callers, then the lady called also. I look down at 6-3 off, and called "for the hell of it". Flop comes out 6,9,Q w/two spades. Action goes check, check, lady bets $10, I call and one of the other guys calls. Pot is now about $60. Turn is a blank and it goes check, lady makes it $15, I call and other player folds. She tells me, "you better be careful", and we have a laugh. River is the 6 of diamonds. Yahtzee! She bets $25 and I raise her to $75. She snap calls me while saying "I told you to be careful, two pair" (Q-9). I show my trips and say "that is the Spanish Inquisition, nobody expects it." Hilarity ensues. She called me an asshole. I told her anyone that plays deuce/four as often as she does should be able to appreciate my play of the 6/3 ... hehe! She hunted my chips like she was on safari for the rest of the night.

I love this story because RedXBranch clearly has a sense of humor, "calling for the hell of it" with a monster hand like the Inquisition. Plus, the Inquisition pays off in full, not only winning the hand (*yawn*), but also providing a "Yahtzee!" moment before causing hilarity to ensue.

The evidence is overwhelming. The Spanish Inquisition is superior to the Duck Pho. But I think we all knew that already.

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[FN1]  The Deuce-Four really needs a nickname. All cool poker hands have awesome nicknames. Well, maybe not awesome, but at least a nickname. So, henceforth I will refer to the Deuce-Four as the "Duck Pho".

You Know You're Having a Bad Day in Court When ...

"When you have the law on your side, pound the law. When you have the facts on your side, pound the facts. When you have neither the law nor the facts going for you, pound the table."

~Old Legal Aphorism

Earlier this evening, Poker Grump tweeted this:

If a justice tells you, "I'm terribly confused" and "Why don't you try to come up with something else," you're having a bad court day.

Grump was referring to the U.S. Supreme Court oral argument today in the Arizona immigration law case, Arizona v. United States .  Solicitor General Donald Verrilli, Jr.—an experienced and talented appellate attorney—had as rough a day in court as can be imagined. As the preeminent SCOTUSBlog described the nadir of Verrilli's argument:

Even Justice Sotomayor advised him, bluntly, that his main argument was ”not selling very well; why don’t you try to come up with something else? … What’s left of your argument?”

As an appellate lawyer, there is really no worse feeling than when one of your strongest allies on the bench is bluntly telling you your argument sucks. In my former life in private practice, I was one of the lead motion and appellate attorneys in my firm. Honestly, there is nothing I enjoy more about my job than writing appellate briefs and arguing appeals. Many attorneys dislike or are intimidated by motion and appellate practice, but the construction and framing of legal arguments, and the freewheeling extemporaneous debate of those issues in 15-30 minutes of argument in front of a trial judge or a panel of appellate judges is right in my wheelhouse (which I'm sure will come as a major surprise to many of my readers). And just like Mr. Verrilli, I've had my share of ugly arguments, which I remember more vividly than many of my best winning arguments. Here are a couple of my personal lawyering horror stories.

* * * * *

Unlike many attorneys, I didn't specialize in any one area of litigation, preferring to be a jack of all trades, willing to dive into trial work as diverse as commercial disputes, insurance and reinsurance law, personal injury cases, and product liability claims. Basically, if you could fight about it in court, I could be your hired gun (or at least your legal sniper).

A few years back, I was one of the few attorneys in the office the week between Christmas and New Year's Day. A secretary came into my office, telling me one of my partners was very sick, and had a bench trial set to start that day in a commercial foreclosure action. I got on the phone with the judge and the bank's attorney who pulled a jerk move, resisting my request for a continuance. The judge gave me one day to prepare to take over the case. Wonderful.

The next day we spent putting on evidence for the judge. Like many commercial foreclosures, the bank was trying to prove a breach of the loan agreement, while my client was trying to prove substantial compliance; still, the law and the facts in foreclosure cases rarely favor the borrower. Late in the afternoon, the bank's attorney made an eight-part motion for an immediate order of foreclosure. If the bank won on any one of the eight points, they had the right to foreclose. After the bank's attorney concluded his argument, I began to rebut each of the bank's eight points, one by one. I had pretty good evidence, and the law was in my favor on some key issues. I was on a roll, thinking I might yet salvage what had to that point looked like rather bleak prospects for my client.

Until I got to Issue Number Six. That issue was pretty much a dead loser for my client. I spun up an argument out of a few random facts and some large leaps of inference, and quickly pivoted to the stronger ground of Issue Number Seven. That's when the judge—who is smart and well-respected—looked up from his laptop for the first time in the entire argument:

"Mr. Grange, do you have any other arguments for Issue Number Six?"

Ummm, well clearly I needed some other arguments but didn't have any on hand, so I played the classic lawyer trump card: "Your honor, that is a complex issue that I would need to address with supplemental briefing." Translation: I'm in trouble, so I need a couple of days to come up with something creative. The judge smiled at me: "Yes, I suppose that issue should be briefed. Have something to me by noon tomorrow." Needless to say, I won a complete sweep of every issue except Issue Number Six ... which meant I lost the case.

* * * * *

Two years ago, I was the appellate attorney for an interesting case arising from judicial review of an administrative proceeding. Another attorney had defended and lost the case before the agency, and asked me to handle the appeal. There were two interrelated issues—whether my clients were liable and whether they owed a penalty. If we won the liability issue, we also won the penalty issue. But the penalty issue was of primary importance to my clients, and we could win that issue even if we lost the liability issue. On appeal to the district court, we contested both issues, expecting our arguments on the liability issue not to prevail on that issue, but to provide the basis for a victory on the penalty issue. To our surprise, we won both issues. Regrettably, our opponent appealed.

The appeal was assigned to the Iowa Court of Appeals. Normally, a three judge panel would consider cases, often without oral argument. The court, however, selected our case as one of two cases to receive a special oral argument in front of a five judge panel as part of a continuing legal education conference attended by a couple hundred Iowa attorneys and judges, many of whom I know and have worked with in the past. Even more stressful for me was that two recent appointees to the bench were on the panel, one being a lawyer I clerked for in law school and the other a long-time district court judge who I had appeared before on numerous occasions. I also knew the other three judges on the panel from a variety of bar activities. Talk about some added pressure!

My 20 minutes of argument flew by, as the judges were well-prepared for the case and peppered me with a barrage of questions starting less than 20 seconds into my time. Having a "hot bench" like this is actually a good thing as it shows the court is engaged with the issues; nothing is worse than trying to fill argument time with judges who have no questions or only perfunctory questions clarifying minor evidentiary or procedural issues.

I quickly realized that the judges were skeptical of our position on the liability issue. But, the judges focused the bulk of the argument on that issue which was much more complicated, and which started to loom as the iceberg that might sink our case. So, I desperately looked for an opening to shift the debate to the far more favorable penalty issue. One of the two newest judges gave me that opening, when he was pursuing a line of analysis on the liability issue. My answer clearly did not satisfy him, and his facial expression showed he disagreed with my argument. Acting on instinct, I made a play to shift the argument to firmer ground. With a big grin I said:

"Your honor, even if you're not buying what I've been selling the past 15 minutes, there is still the penalty issue to consider, and on that issue, the law is clearly in my clients' favor."

The two newest judges nearly broke out laughing, and spent the next five minutes studiously "taking notes" to avoid making eye contact with me. Even the chief judge, a pretty no-nonsense type when on the bench, cracked a smile. A cardinal rule of appellate argument is never to use humor, but I made a spur of the moment decision that I needed to shift the debate by any means possible. Since I knew the panel, and had argued in front of them often, I felt I could pull off a self-deprecating joke that signaled to the judges that, although they were concerned about the legal implications of ruling for my clients on the liability issue, they could safely rule against my clients on that issue so long as they ruled for my clients on the penalty issue. Although my ego would have preferred a clean sweep of both issues, my clients only cared about the penalty issue, and winning that issue alone while quasi-conceding the liability issue offered the court an easy way to decide the case.

* * * * *

As a coda to my trip down war-story memory lane, I have had a few trials where witnesses said some funny stuff under oath. My favorite example was from early in my career, where a major fighting issue was where an employee got the beer that got him drunk. The employee testified that he and his supervisor would drink beer together every night after they closed the restaurant for the night. The beer, however, was brought to the restaurant by either the employee or his supervisor. When the employee's attorney tried to get his client to testify that the supervisor brought the beer that the employee drank, hilarity ensued:

Attorney:  Now the night of the accident, were you drinking the beer Mr. Smith [the supervisor] brought?
Employee:  No, I wasn't.
Attorney:  You weren't?
Employee:  No, I never drank the beer Mr. Smith brought.
Attorney:  Are you sure?
Employee:  Oh yeah. He always drank Coors Light, and I don't drink that shit. It tastes like piss.

Amazing how honest people can be while under oath!