Silly Suits

Mr. Brownlow: … the law supposes that your wife acts under your direction.

Mr. Bumble: If that's what the law supposes, sir, then the law's an ass!

- Oliver Twist by Charles Dickens

Lawyers and the law often get a bum rap. It's probably unavoidable, given the system of justice we inherited from England.

In countries like France, judges take an active role in discovering the facts of a case, going into the field, interviewing witnesses, and the like. In the United States, Canada, and the other English-speaking countries, judges act mostly as passive referees. The active players are lawyers, who are required to be zealous advocates for their clients.

This is usually a good thing. The theory is that the truth will emerge from the struggles between these zealous advocates. But "zealous" derives from the word "zealot." The original Zealots were a group of Jewish fanatics in ancient Judea who attempted to throw off Roman rule. In 73 CE, the 900 zealous Zealot defenders of Masada committed suicide rather than surrender.

Very few lawyers would literally fall on their swords for their clients, but some do take being a zealous advocate a little too far.

Operators of legal gambling get more than their share of frivolous suits. First, they are seen as the epitome of deep-pocket defendants. Plaintiff attorneys love to sue companies that have lots of money and that are not held in high esteem by the average juror.

In addition, bettors can become very emotional, especially when they think they have been cheated out of a prize.

Finally, gaming operations are not well understood by most lawyers. So, when clients say fervently that they "would have won," attorneys generally do not know enough to say, "No. You didn't."

The most recent reported case, at this writing, was brought against the Maine State Lottery. Larry Moody bought a "Wild Card Cash" lottery ticket. On April 1, 2002, he submitted a clearly losing ticket, saying that, under the rules, he had a winner.

The game required players to scratch off six hands of cards in hope of revealing a winner, such as a pair. Each ticket had a separate scratch box labeled "wild card." Moody's ticket showed the wild card as a 5, and he had no other fives and no pairs. So, how could he think this loser of a ticket was a winner?

He decided that since the wild card was on the face of the ticket, one of the hands could use that wild card, giving it a pair.

The amazing thing is not that someone would come up with such a bizarre reading of the rules, but that he was able to get a lawyer to take his case.

The State Lottery was able to educate the judge on how lottery games worked. If Moody's reading of the rules was correct, every lottery ticket would have a wild card as part of a hand. Superior Court Judge Crowley wrote, "Reading the terms of the 'contract' as the Plaintiff does produces the absurd and unintended result of every ticket being a winning-ticket." Judge Crowley dismissed Moody's lawsuit.

Losing patrons have also scoured the rulebooks of casinos, looking for ways to turn losses into winnings. An interesting case arose when the Trump Castle's roulette rulebook actually did contain mistakes. For example, one illustration showed that betting on red paid off on black, and even numbers paid off on odd numbers.

In practice, the casino played by the regular, well-established rules of the game. Still, a player filed a lawsuit in small claims court. Robert Signore alleged that he lost $800, and that he would have actually won if the payoffs had been made as illustrated in the faulty guide.

Fred Gushin, then of the New Jersey Attorney General's Department of Gaming Enforcements, asked the obvious question: Why did Signore continue playing after he lost money on bets he supposedly thought were winners?

The DGE thought the typos were so insignificant that the regulators allowed the casino to continue distributing the rulebook until the stock was exhausted.

Gambling myths can also lead to lawsuits. The players' cry of "I would have won" is often tied to gambler's fallacy, the mistaken belief that probability requires some event to happen soon.

A typical case was brought by Heather Devon, a California school teacher. Her lawyer, Cal Potter, actually managed to get her case to a jury. Devon had played the same dollar progressive slot machine for almost 12 hours straight through the night. When she took a break for breakfast, she asked the casino to lock down the machine.

Anyone can write the plot of what happened next in this little drama: Someone else played the machine and hit a $97,000 jackpot.

IGT, which built the machine, sent an employee to educate the jury about how slot machines work. Since the machine has a constantly changing computerized random number generator, Devon would have won that jackpot only if she had played at the exact same moment as the real winner.

The jury ruled in favor of the casino. They actually understood that the slot machine was not "due" to hit.

Racetracks have been around longer than state lotteries and casinos, so they have more reported cases. My favorite opinion is a 1948 suit brought by Virginia K. McMenamy against Western Union. McMenamy claimed the company was late in delivering a telegram with a racing tip from "the Maryland Syndicate," touting Isolationist in the fifth race at Washington Park. She said that if the telegram had arrived on time, she would have bet $100 on Isolationist to win, which it did.

Albany City Court Justice Herzog was skeptical: "Who can say she would have bet $1, $100, or $1,000? Who can say that she would have bet Isolationist 'straight,' 'show,' 'place,' or 'across the board,' to use the parlance of the track? The wager of $100 'on the nose' is a substantial wager and strictly a gamble. There is no such thing as a 'sure thing.'"

The judge went on to point out that the horse race was in Illinois, and McMenamy would have had to have placed the bet by phone from New York to the bookie in Maryland. At the time, there was no legal way to make this bet. Case dismissed.

So, is the law an ass? In all cases, the law did, eventually, do the right thing.

But this does not excuse the lawyers who fought like Zealots for cases that never should have been filed in the first place.

Professor I. Nelson Rose is recognized as one of the world's leading authorities on gambling law. His website is www.GamblingAndTheLaw.com.