Kandu Challenge

I was just reading the newest Ante Up magazine, and found a brief article by attorney Marc Dunbar. (Available online here, page 62.) He is discussing recent legal cases in which courts had to determine whether poker is predominantly a game of skill or of chance. He thinks the courts are getting it wrong by usually ruling it a game of chance.

His discussion mentions a case I had not heard of, so I looked it up. It's Three Kings Holdings v. Six, from the Kansas Court of Appeals, June 10, 2011, available here. I found a couple of references on poker-related sites about the trial court decision in 2009 (e.g., PokerPages story here), but not a word anywhere in the poker media about the recent appellate decision. I don't think I had ever heard of either the game or its legal history before tonight.

Kandu Challenge is Texas Hold'em with one significant twist: After the cards are shuffled, but before any are dealt, the deck is spread out in front of the players face up for three to five seconds, allowing players a chance to memorize the order of as many cards as they can. The dealer then gathers the cards without disturbing their order, cuts the deck, and shows the card at which the deck was cut. In theory, if you had been able to memorize the entire order, you would now know exactly which cards would be dealt to every player, as well as what would be coming on the flop, turn, and river. Wouldn't that be nice?!

The game was offered at some sort of card room in Wichita, but within a few months was shut down by the state attorney general as a violation of state gambling statutes. The game's owners sued, arguing that skill dominated over chance in determining the outcome. They lost and filed an appeal.

The appellate court basically rehearses the trial court's decision and endorses it at every crucial step. Most interestingly, this included a lengthy discussion of whether the skill/luck determination should be made based on a single hand or based on some undefined longer period of time. This is a question that other courts have touched on briefly but without much rigorous analysis.

It's true that the "spread the deck" twist adds a feature not found in regular poker, and it might arguably increase the skill factor, because quick memorization of many cards would clearly grant a significant edge. But the courts didn't put much stock in this, based on witnesses saying that they could usually only memorize four or five cards in the allotted time, and they had not found that doing so had helped them win.

The courts, then, analyzed the case just as they would for Texas Hold'em--which is why the discussion of whether the legal determination on the skill/luck question should be made on a single hand versus some "long run" (a session of a few hours or more) is potentially important to other courts that will face the same question in the future.

Their decision is, I think, hard to argue with. The rules allow a player to play just one hand and then leave, even if few people actually do so. A winner is unambiguously determined at the conclusion of every hand, but there is no unambiguous way to determine a "winner" if you extend the period of consideration arbitrarily. Most importantly, if the analysis isn't done on the basis of a single hand, then there is no other logical unit to apply.

Once the courts had almost entirely discounted the ability to memorize the order of the deck--Kandu Challenge's only unique feature--and had decided that the skill/luck determination had to be made, for legal purposes, on the basis of a single hand, well, the outcome was in the cards, so to speak. I don't think anybody can seriously debate the proposition that what cards one is dealt and what cards come on the board are more determinative of the outcome of a typical hand of poker than the relative degree of two players' skill. If Joe Tourist and I play two hands, one where I beat his straight with my flush and one in which those hands are reversed, my greater skill might cause me to win more than he does with the flush, and lose less than he does with the straight. But no amount of skill can make a straight beat a flush.

I summarized and posted pointers to the other recent state appellate court cases a few weeks ago here. You can now add the Kansas decision to the growing list of cases in which courts view the skill versus luck question entirely differently than we as poker players are inclined to do. At least in this case the courts made explicit the basis for their rulings, and the underlying logic, rather than just waving off the overwhelming expert testimony that poker is, in fact, a game of skill.