I was just looking over some of the materials pertaining to the Kentucky domain-name seizure case, as collected by the Poker Players Alliance web site. I had not previously heard that the PPA had prepared an amicus brief for the court. I just read it.
Wow. This is a shamefully bad piece of work. Hey, they're preaching to the choir with me. I want to accept their arguments. But the holes are glaring. If it seems shoddy to one who desperately wants to like what the brief has to say, how bad will it look to a judge who may have no love of the game?
The first criticism I have is that this is obviously a made-in-advance brief. Somebody wrote it before having any idea what case it might be submitted for, then just added in a few bits specific to this Kentucky case. The central idea of the brief is that poker is more a game of skill than of chance. It's perfectly understandable that the PPA would have such a brief on the shelf and ready to go, because that's going to be a central question in a lot of legal cases involving the legality of poker.
But I'm not sure this is one of them, and even if it is, I'm not sure the PPA is analyzing the legal question correctly.
Most of the brief (which you can read here) is spent explaining poker and trying to demonstrate why skill is needed to play it successfully. It gives specific card situations and shows how one has to calcuate the pot odds, the odds of making one's hand, the expected value, etc. (Heck, I think they could have just handed the judge a copy of The Mathematics of Poker and asked him to pick about three pages at random to read, if the goal is to illustrate that poker problems are genuinely complex.) There follows a section of quotations from various poker authorities to the effect that skill predominates over luck, plus some excerpts from research papers making the same point, because test subjects who are taught strategy do better as novice players than those not taught strategy first. (Of course, the same would be true of blackjack. So I guess the PPA is willing to argue that blackjack and poker must either rise or fall together as games of either primarily chance or skill, right? Ha!)
The core problem, though, comes back to the pre-manufactured, cookie-cutter approach that this brief takes. "Gambling" is defined by the relevant Kentucky statute (528.010(3)(a)) as follows:
"Gambling" means staking or risking something of value upon the outcome of a
contest, game, gaming scheme, or gaming device which is based upon an element of
chance, in accord with an agreement or understanding that someone will receive
something of value in the event of a certain outcome.
Looking just at the face value of that text, it cannot be seriously maintained that poker is not "based upon an element of chance." Yet that's exactly the point the PPA tries to make.
The face value isn't the end of the matter, though. There are other states where similar language has, contrary to reason, been interpreted by the state appellate courts to mean games that are primarily or predominantly based on chance. The PPA brief quotes some of them. The problem is that it appears that Kentucky's courts have not adopted such an interpretation--at least I assume that if they had, citation of such a case would be prominantly featured in this brief.
Instead, the brief cites state attorney general opinions. Lawyers cite AG opinions when they can't find a court case that says what they want. But AG opinions are not binding on courts. Courts disagree with and politely ignore AG opinions all the time. This is partly because AG opinions are nearly always heavily political documents, rather than objective, scholarly, detached analyses of what the law says (though they are written to sound as if they are objective).
In short, it appears to me that the PPA brief is basically assuming and glossing over the main point that it should be trying to convince the court of. If it's true that the statutory phrase "based upon an element of chance" has not been given an authoritative interpretation by Kentucky's appellate courts, then it seems to me that the PPA's brief should be trying to persuade the trial court to adopt the "predominance" test, rather than trying to sweep that question under the rug as if it has already been settled. Surely no judge is really dumb enough not to recognize that this brief has a gaping hole in its legal logic.
I'm reminded of the classic Harris cartoon (which you can see here). One scientist has written a complicated scheme on the blackboard. One step of the proof says, "Then a miracle occurs." The scientist's colleague, looking over his work, says, "I think you should be more explicit here in step two."
Well, that's how I feel about this PPA brief. It's glossing over the key question of statutory interpretation, if its goal is to get poker legally recognized as not constituting "gambling" under Kentucky law. The only way to succeed at that is to take on directly that ugly "element of chance" language. On its face, that phrase is a death sentence for legal recognition of poker, so efforts should be directed at convincing the court that the facial reading is not the correct one. This brief utterly fails at that task. In fact, it doesn't even seriously attempt it.
The brief says (pp. 20-21):
The only rationale [sic; the brief really needed better proofreading!]
interpretation of this statute is that "outcome" must be based upon an element
of chance. If this reading is accepted, then poker is not included because in
poker the outcome is based primarily on the skilled play of the players.
See what I mean about glossing over? It goes directly from "based upon an element of chance" to outcome based primarily on skill. Those are obviously not saying the same thing, or even asking the same question, and it insults the reader's intelligence to pretend that they are.
Like I said, I want to be persuaded, but I'm not. A skeptical judge would read this and think, "They've got to be kidding, right?"
A few pages later I find another oddity. The brief correctly notes that whether poker is primarily based on luck or skill is a question of fact, which means that both sides would present evidence on the question. (If, that is, the judge decides that that question is relevant to the case. But if he takes the face-value reading of the statute, he could easily conclude that testimony is unnecessary, because nobody could possibly deny the proposition that poker is "based upon an element of chance.") The brief then criticizes the state for not having presented any evidence that poker is primarily a game of chance. Huh??? First, it's not yet clear that that is a question that will need answering in this case. And second, there hasn't been a trial yet! The lack-of-evidence argument might make sense if a trial had occurred, and the state had failed to produce an expert witness that said that poker was predominantly a game of chance. But it's way early to be complaining about what has or has not yet been produced in the way of evidentiary material. This is a completely frivolous argument.
Another smaller problem in the brief is that it takes things said about tournament poker specifically and tries to make them sound as if they are true for all poker. That's disingenuous. Were I the judge, the PPA's counsel would get no brownie points for honesty here.
I hate having to come to this conclusion, but this legal brief is a sloppy, shoddy, amateurish, mostly irrelevant piece of work. I recognize that it's not a primary brief, and as an amicus brief is designed to inform the court in more detail of things that the litigants' briefs may pass over, either because of lack of space or lack of expertise. That's why I'm not criticizing it for failing to tackle the big questions, like jurisdiction, and that hard-to-ignore definition of "gambling device." Those are questions best left to the defendants themselves.
But even taken for just the specific and limited role it is apparently meant to have, the PPA brief is bad legal work--bad enough that I'm ashamed that it is speaking for me as a PPA member.
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2 comments:
Solid comments, can't disagree with anything of significance in your analysis.
As a lawyer, I have a couple of additional critiques. First, the brief argues that knowing the odds and making the correct mathematical play is what makes poker a "skill" game rather than a "chance" game. The problem is, many casino games have an "ideal" strategy so that there is a mathematically "best" way to play craps, blackjack, video poker, etc. However, the PPA fails to take the next step and argue that the difference between "skill" and "chance" games is that "skill" games must have a potential +EV outcome for ideal play. That concept may be implicit in the argument, but this point is the overriding purpose of the entire brief and needs to be spelled out explicitly and then emphasized repeatedly.
Also, on pp. 21, the brief makes a curious argument that, because it is possible that all players will fold to a bet, the element of chance (i.e., the actual cards dealt to the players) can somehow be negated and permit a player to win by pure skill. This argument is specious. Obviously the cards the players hold and/or are on the board will influence whether they fold, and those cards are the random or "chance" element of the game. Certainly, the skilled player can take advantage of the cards in play, but there is still an element of chance, and to deny it forfeits credibility.
Finally, the brief only makes a cursory constitutional argument re whether forfeiture of the entire site domain name is appropriate in light of First Amendment concerns. This argument might have some merit, but giving it one page makes it look like a "throwaway" argument not likely to be taken seriously by the court.
In sum, I think there is some valuable information here that should be presented to the court. But I agree the brief could be substantially more effective as a piece of advocacy if it were re-drafted with the present litigation in mind.
I agree with your comments. Two additional comments:
1. The opinions of the Kentucky AG's Office may be of greater importance because it is Kentucky itself which is bringing the lawsuit. If its own AG's Office has past opinions helpful to the defendants, that might be important.
2. The PPA brief and motion doesn't cite any rule allowing a circuit court to consider amicus briefs. No case is cited for the proposition that a circuit court has inherent authority to consider amicus briefs. In some states, amicus briefs are only allowed in appellate courts.
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