Monday, April 03, 2006

Dealing with Misdealing

How do you remedy a misdeal? As a item offered in a law-school charity auction, a fellow law prof and I offered a poker party. Several students joined to purchase the opportunity. We gathered, together with some S.O.s and kids in tow, last Friday night. In the course of the fun, in retrospect, I think I misdealt a card at a crucial moment.

I realized the probable mistake only after I'd studied the correct dealing pattern more carefully. It was a somewhat complicated (or so it seemed, after a martini) dealing pattern—Texas hold-em, I think—and I must admit that I did not pay sufficient attention to my instructions. The loud excitement made concentration difficult and the festivities my memory dim, but I'm pretty sure that I failed to "burn" a card before dealing the last one up. I thus think I laid down the wrong random card.

I offer that only by way of explanation, not exculpation. I'm pretty sure that I erred, and thus inadvertently favored one party over another. How should I correct my error?

I should apologize to the adversely-affected party, to be sure. An offer to repay her money down—$50—seems in order, too. But do I owe her still more? Did I breach an implied promise to exercise due care in card dealing? And, if so, could she get expectation damages? Or would she have to rest content with the $50 of restitution?

I think I'll ask my Contracts II students those questions. The hypo—or, rather, the actuality—offers a good problem of contract remedies. Describing it will, happily, give me a chance to make my apology public, too.

By the way, my error (supposing I made one) worked in the favor of my fellow professor, who ended up winning the evening's game. He's promised to donate his bounty to the same charitable cause—the Public Interest Law Foundation—that benefited from the auction of our poker game.


Dylan said...

"I'm pretty sure that I erred, and thus inadvertently favored one party over another."

Not true at all. A random (or at least unintentional) mistake could not really favor one party over another. You've still generated a random outcome, just by a nonapproved method. The purpose of "burning" a card in Hold 'Em is to frustrate those relying upon marked cards. In an unmarked deck, burning serves no purpose.

Glen Whitman said...

I'm with Dylan. This is much like those cases of coincidental causation, like the one (someone vs. Berry Notch, as I recall) in which a speeding trolley was hit by a falling tree that was hit by lightning. A passenger injured by the tree sued the trolley company. But for the trolley operator exceeding the speed limit, the passenger on the trolley would not have been injured by the falling tree. Yet the trolley operator's decision to speed did not increase the likelihood of that event from an ex ante perspective, and so the court eventually ruled for the defendant.

Chris Hibbert said...

In most sports and games, the rules explicitly state that errors not noticed and protested at the time are waived. In this case, there wasn't even any harm, since as dylan pointed out, the outcome was still random. If an incorrect card is played, and the face of the correct card has been shown, the usual remedy would be to deal a different random card, rather than the known card.

Gil said...

Me too.

Nobody's decisions were affected by whether you would turn over the first or second of the random cards in the deck, so the result is still fair.

You might as well say you "mis-shuffled" favoring one player over the other.

dgm said...

so long as you are not speaking of the round that made me lose all my chips, i won't cry foul. otherwise, there will be hell to pay when i get home, sir.

Tom W. Bell said...

Sheesh, what a bunch of softies (except for you, dgm)! Still, I must admit that I feel less guilty. Let's not stop beating up on me just yet, though.

Glen characterizes the wrong as a tort, whereas I think of it as a breach of (an implied) contract. So I am not sure that the trolley hypo resolves the case. You can breach a contract without acting negligently (though I arguably did both).

Following up on Chris's soothing analysis, I should observe that my fellow prof expressly indicated, at the game's start, that he had the sole authority to resolve disputes that arose during (or after? related to?) the game. He evidently took no notice of my error, and thus impliedly let it pass. But, then again, he did not promise to serve as both the judicial *and* executive branch!

dgm: No round "made" you lose your chips. You simply suffered the consequences of a poor choice. (not that I'm one to talk).

hsnoyes said...

More grist for the mill....
What does it add to your calculus to know the hand played out as follows. Prof raised preflop, Student called. After the flop, Prof had two pair, student had open ended straight draw. Prof raised student called. [STOP HERE. Was your "misdeal" an isolated "mistake"? That is, did you burn a card before the turn? Because if not, it actually led to multiple "mistakes" in how the hand played out.] After the turn, Prof has two pair, student has straight. Prof raises, student goes all in, Prof calls. Then you turned over a full house for Prof on river.

Tom W. Bell said...

hsnoyes: Alas, it would be relatively easy to resolve the case if I'd *never* burned any cards. But I think it was only on the last--and crucial one--that I failed to do so. So the student was thiiiiiiiis close to winning. I don't know what the next card was, of course, but I'd have bet she would have won.

Glen Whitman said...

I didn't mean to imply this was a tort. I was just drawing an anology, and I think it's apt, because in both cases an action was taken that ex post appears to have harmed someone, but ex ante did not affect the likelihood of that harm. A general rule requiring compensation in such cases will not improve incentives, but will incur the administrative cost of adjudicating the case and enforcing the remedy.

You might say the rule *would* improve incentives, because it would give you an incentive to take more care in your poker dealing. But there is such a thing as taking too much care; worrying that any tiny breach of the rules could lead to a lawsuit would have made for a much less enjoyable poker game. Similarly, in the trolley case, a rule awarding damages for the harm done by falling trees would give the trolley car driver a greater incentive not to speed, but that doesn't mean it's a *better* incentive. If he's already held accountable for harms whose risk is actually affected by his speeding behavior, then the threat of damages for coincidental causation as well will give him an excessively large incentive not to speed (perhaps refusing to speed even in cases where he should, or paying too much attention to his speed over other things he should pay attention to).

Gil said...


You mean you never even saw the next card???

Then, why are you wasting our time? :-)

I think you understand that your mistake was irrelevant to the game (bets were made based on any remaining random card being dealt, and that's what you delivered).

I think what's happening here is a psychological effect. You feel guilty because you saw a bad beat, and you violated a technical (but immaterial) rule, so you're inclined to take responsibility.

The fact that an unlikely event occurred doesn't make your mistake responsible for it. They happen without mistakes, too.

It just makes you more aware of it.

student said...

To complete the scenario of the misdealt hand, here is some more information. Prof. asked student how much do you have left? Student replied with 'x' amount. Prof then raises so that student has to go all in to stay in.

In my opinion and in consideration of the totality of circumstances, student should have won.

Gil said...


Would you think "student should have won" if the hand had been dealt properly?

If not, why do you think the misdeal changes what "should have" happened?

Was student counting on the second card vs. the first card being dealt for some reason?

Also, why do the details you have given affect the issue?

student said...


I think if the hand was dealt properly, student probably would have won the round. The mis-dealt card gave the prof. a full house which, in turn wins over a straight.

The card that was flipped over should have been "burned". On the other hand, it is not definate that student would have won the round because the card that should have been flipped could also have given the professor a full house as well. No one really knows, but the odds of student winning were higher, given the cards already shown.

Gil said...

But if the cards had been shuffled differently, the prof would have made the full house on the correctly dealt card.

In that case, would you say that student "should have" lost?

I realize that a technical rule had been broken by not burning the card, but that violation didn't impact any decisions made. A random card was expected, and a random card was dealt; just as if the shuffle had been slightly different.

Let's suppose that at the beginning of the hand it was declared:

"New Rule: On this hand no card will be burned before the river card is dealt."

In that case, would the hand have been played differently by anybody?

If not, why is what "should have" happened any different?

It seems to me that student wants to use a technicality to negate a fairly played hand. Of course, I understand the desire to do so. I just don't agree that it's justified.

student said...


You do have a good point. A random card was expected and that was what was dealt.

As to whether or not the hand would have been played differently if the new rule had been made, I do not know. Those are questions that Prof and Student would have to answer.

Gil said...

Maybe so.

But, as far as I can tell, the only reason to play differently based on the new rule would be because one was cheating, psychic, or irrational.

So, I'm very skeptical that it should matter.