Defense lawyers, especially class-action defense lawyers, live in a world ruled by ambiguity. While they’re often more predictable than they like to believe, judges work to keep their intentions in a given case ambiguous. (We’ll see why in moment.) “Adventuresome” plaintiffs’ counsel work hard to push the boundaries of existing caselaw, which can leave the state of even settled law more ambiguous than one might like. And, of course, because plaintiffs’ lawyers tend to play offense, they’re often more tactical than strategic, which gives them an incentive to remain ambiguous about their intentions. Wouldn’t it be great if there were just some kind of math we could apply in situations like this?
It turns out there is. It’s pretty darned advanced, but it does exist. And, in their 2011 working paper The Strategic Use of Ambiguity, Bielefeld University’s Frank Riedel and Linda Sass apply it to reach some interesting conclusions about when and how to use ambiguity in strategic games. (For our purposes, that means “litigation.”)
Skipping the formula, what Riedel & Sass do is to define ambiguity (roughly, creating a condition where others cannot make an informed guess about your intentions), create a way to model it mathematically (using “Ellsberg urns”). Apply a little game theory et voila!, instant strategic insight. And what are those insights?
Judges have a game-theoretic incentive to stay ambiguous. One of the games Riedel & Sass model involves a superpower mediating between two skirmishing regional states. The superpower cares mostly about peace, and discerning who started a conflict may be impossible. (Sound familiar?) If the superpower opts to remain opaque about its intentions and sympathies, then under a normal range of payoffs, both states will avoid starting anything. (Usually these games are structured to show that, with a normal range of payoffs, conflict is likely. So this is an unusual result. In game-theoretic terms, these ambiguities create non-Nash equilibria.) What’s particularly interesting about the analysis is that it assumes that all players prefer no ambiguity. If I’m correct that plaintiffs’ lawyers are more ambiguity-accepting, then judge/superpower ambiguity may appear to create a slight strategic advantage for them. If your opponent plays ambiguous strategies, you should not. This is the conclusion that should prove most interesting to defense lawyers. It was to me (and, as it turns out, to the authors.) Riedel & Sass model a game called “Matching Pennies”. This is because, as it turns out, in a probability game like Matching Pennies, it is possible to immunize oneself against strategic ambiguity by focusing on the probability of outcomes. TV attorney Harvey Spector has become famous for his very quotable “I play the man, not the odds.” But, as it turns out, if you’re up against an opponent who employs strategic ambiguity—particularly if there are other uncertainties, like an ambiguous judge—playing the odds is more often the winning strategy. And it’s not really playing the odds, it’s playing the terrain.
In other words, keep focused on what the law actually says. And don’t be afraid to be very clear with both the judge and your adversary what you’re doing. If you’re right about the law, it’s not going to matter nearly as much as people think.