On lawyers and game theory

In college I took a class on animal behavior, where I learned about game theory, and specifically a strategy called “tit for tat.” The colloquial expression “tit for tat” is certainly well known, but the scientific game theory definition goes something like this: When encountering new individuals in the wild, your first step is always to cooperate. Once the other individual acts, copy their previous action. If they cooperate, then keep cooperating with them. If they betray you, respond in kind. “Tit for tat” is considered a highly effective game theory strategy – some have called it the “winningest strategy” in nature (for some reason I like that phrase, “winningest”).

Although it’s been years since I took this class, I was recently reminded of it during a deposition. Depositions can be contentious situations by nature, but that doesn’t mean all niceties get thrown out the window. If someone asks you to hand them a pen or a tissue, there’s no good reason to refuse, and it’s simply common courtesy to do it. It’s the human thing to do.

Which is why it stood out to me when an attorney, who I’d never been in deposition with before, asked me for the courtesy of a “standing objection” (i.e. one where he didn’t have to keep repeating the same objection over and over). As a professional courtesy, I allowed him the standing objection. Yet not ten minutes later, when his turn came for questioning and I asked for the same courtesy of a standing objection, he replied, practically under his breath, “I don’t give standing objections.” He wouldn’t even look me in the eye when he said it.

Duly noted, sir.

Photo by Frida Bredesen on Unsplash