Raid on NYC clubs underway right now.

[Skallagrim]

I am fully aware of the legal article you cite. It is not a court opinion, but an attorney's opinion. Other notable attorneys disagree, and I, though not notable, also disagree. The California Courts ruled poker is not a "lottery" and thus not barred by a constitutional clause similar to NY's. A lottery was defined as ANY game where chance is the predominant factor. The court ruled chance was not the predominant factor in SOME poker (5 card stud was interestingly ruled a game of chance but 5 card draw not, in follow ups to this opinion). The article you cite neglects to point out the definition of "lottery" and instead emphasizes some language pointing out that poker is not played like a lottery.

There is also a California case holding bridge to be predominantly skill. Is there less random distribution of the cards in Bridge? And there was no question that skill v. chance was the issue in that case.

Also, right now you can go to websites that offer "skill" games for money that are based in the US and accept US credit cards and are owned by publicly traded US corporations. Does playing solitaire have more skill involved than poker? Canasta? Free Cell?

Virtually every court that has intereperted "to a material degree" has said that this means chance must be the "predominant" factor. You are quite wrong to state that balancing skill v. chance is not required by the NY statute, this is precisely what it requires. And that is precisely what every court that has addressed the issue has done. If chance need only be a factor that MAY affect the outcome, virtually all games would be games of chance (including golf and baseball). In criminal law, a material statement for a perjury prosecution is one that makes a difference to the outcome. If it does not make a difference it is not material. Cards make the difference in less than half the hands of poker, so therefore cards are not the predominant factor in most poker outcomes, and therefore not the predominant factor in poker as a whole: poker is a game of skill in which chance is also a factor, not the other way around.

The material degree language is what seperates poker from blackjack, which also invovles skill, but skill is not the predominant factor in blackjack because the cards must always be shown and always determine the winner.

Obviously you have not read the proof I have constructed, or you would realize that chance is not the predominant factor in the outcome of a single hand of poker, at least some hands. How can chance (the random distribution of the cards) be the predominant factor in a hand where everyone has folded to the winner? The decisions of the players were the predominant factor in that hand. Now some hands, those that go to showdown and where the underdog wins, are the result of the random distribution of the cards. So which wins more hands, decisions or cards? The answer is decisions. And decisions, even bad ones, are "acts of skill."

Cliff notes: accepting old ideas and assumptions without actually analyzing the basis of those assumptions guarantees that you will never change anything and never correct past mistakes. Also, finding one opinion and accepting it as the end of the story also guarantees that your own intellectual capacity is never used; why think for yourself when others can do it for you?

Thanks for your help, hope you enjoy having to go outside NY (or to an Indian reservation) for legal poker.

Skallagrim

[TMTTR]

[ QUOTE ]
Cliff notes: accepting old ideas and assumptions without actually analyzing the basis of those assumptions guarantees that you will never change anything and never correct past mistakes. Also, finding one opinion and accepting it as the end of the story also guarantees that your own intellectual capacity is never used; why think for yourself when others can do it for you?

[/ QUOTE ]

What a sweet lawyerly approach.

It is why I often call myself a self-hating lawyer.

You point to no case law to support your proposition that:

[ QUOTE ]
Virtually every court that has intereperted "to a material degree" has said that this means chance must be the "predominant" factor.

[/ QUOTE ]

And you are, in fact, wrong. The word "material" is a frequently litigated word in many contexts but in my experience has NEVER meant "predominant." A "material" fact is one that a person making a decision would expect to know and could be expected to have a non-trivial effect on an outcome or a decision. Chance can be expected to have a non-trivial effect on the outcome of any single poker hand and any tournament. Chance is not expected to have an effect on the outcome of most traditional sporting events (and your unsubstantiated assertion to the contrary is incorrect).

It is not an acceptance of old ideas or an unwillingness to consider the underlying reasoning. It is understanding the law and not trying to distort the meaning of words. I agree you should think for yourself, but you should also understand the facts and the limitations of your imagination to alter them.

[*TT*]

[ QUOTE ]

Just cause you didnt think of it doesnt mean it wont work. I suspect had you 2 TTs been around at the time, you would have spent just as much time telling the pinball guy (from the post above) that he had no chance and should just give up.

Skallagrim

[/ QUOTE ]

Thanks for twisting the meaning of my posts. I am all for trying to legalize poker in NY state, but using the forum as a soapbox to preach to the converted is wasted energy. You want to change the world? Go out and do it; don't come here to complain about it and say "someone" should do something. Thats all I try to squash, what I am really trying to do is convert them into activists instead of whiners.

Of course then there is the issue of activists potentially making problems worse, but thats another issue entirely.

[Skallagrim]

Apparently you believe just because I make the statement without citiations and it does not comport with your beliefs, I must be wrong.

Here are a series of citiations regarding "to a material degree":

First, from the same article you cited:

"That general rule is set forth in the California decision In re Allen as follows:

“The term ‘game of chance’ has an accepted meaning established by numerous adjudications. Although different language is used in some of the cases in defining the term, the definitions are substantially the same. It is the character of the game rather than a particular player's skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game.”[2]"

Some more cases requiring "predominance": People v. Settles, 29 Cal.App.2d Supp. 781, 787 [78 P.2d 274]; Boies v. Bartell, 82 Ariz. 217 [310 P.2d 834, 837]; State v. Hahn, 105 Mont. 270 [72 P.2d 459, 461]; Baedaro v. Caldwell, 156 Neb. 489 [56 N.W.2d 706, 709]; State v. Stroupe, 238 N.C. 34 [76 S.E.2d 313, 316-317]; D'Orio v. Startup Candy Co., 71 Utah 410 [266 P. 1037, 1038-1039, 60 A.L.R. 338]; Longstreth v. Cook, 215 Ark. 72 [220 S.W.2d 433, 437]; State v. Wiley, 232 Iowa 443 [3 N.W.2d 620, 624]; Adams v. Antonio (Tex.Civ.App.) 88 S.W.2d 503, 505;

A specific case on "material degree:" OK, I cant find the actual case cite right now (I have before) but back in 1981 a Federal District Court judge in Portland, Oregon ruled backgammon to be NOT a game of chance under Oregon law. (here is an article about it, lest you doubt me again: http://www.edcollins.com/backgammon/backgamb.htm) How does Oregon define game of chance? It uses the exact same "material degree" language that NY uses: http://www.gambling-law-us.com/State-Laws/Oregon/

And you might want to consider the case in NY where 3 card monte was held a game of skill:
http://www.city-journal.org/dev/html/4_4_soundings.html

See, also: SYMPOSIUM: CROSS-BORDER ISSUES IN GAMING: The Games People Play: Is It Time for a New Legal Approach to Prize Games? Anthony N. Cabot*, Louis V. Csoka 4 Nev. L.J. 197 (Winter, 2003). There the authors say: “To assess the legality of such games, most states have adopted the "predominance test" and cite a number of cases.

If I were actually preparing this for a court, my citations would be better. But since I am preparing this for an apparently closed mind, I will refrain from extra effort.

Perhaps you would now like to cite a few cases that hold "material degree" to mean less than the predominant factor in the outcome? I couldn't find any.

Actually, I just ask you to do some research and find those 2 lower NY court opinions on poker. I bet if you do you will find that they use the predominance test, just come out the wrong way.

And finally, this is hardly a personal attack on you, but you ARE exhibiting a closed mind in this circumstance. You act like this is an open and shut issue simply because that is what you have always been led to believe. This is not an open and shut issue, and it is one of the important fronts in the fight over poker's legality. As a poker player I would rather have you on our side for this argument, and that is why I am challenging you to actually think through and research the issue before dismissing it.

Skallagrim

[Skallagrim]

[ QUOTE ]
[ QUOTE ]

Just cause you didnt think of it doesnt mean it wont work. I suspect had you 2 TTs been around at the time, you would have spent just as much time telling the pinball guy (from the post above) that he had no chance and should just give up.

Skallagrim

[/ QUOTE ]

Thanks for twisting the meaning of my posts. I am all for trying to legalize poker in NY state, but using the forum as a soapbox to preach to the converted is wasted energy. You want to change the world? Go out and do it; don't come here to complain about it and say "someone" should do something. Thats all I try to squash, what I am really trying to do is convert them into activists instead of whiners.

Of course then there is the issue of activists potentially making problems worse, but thats another issue entirely.

[/ QUOTE ]

If I twisted your words I apologize; I responed to them in the way they appeared to me.

As for activism, you know nothing aboout me, or my efforts in this area (which have been substantial, both for free, and for clients).

I made my origiinal post perciesely because I am NOT a NY lawyer, and thus could not take such a case even if I wanted to. If i were a NY lawyer, I would happily take such a case pro bono, and be confident of further free help from the PPA and its various board memebers, in advancing this argument. I too want legal poker for all of us.

As it is, if anyone in NY wants to pursue this argument (with the advice of their NY lawyer) I would be happy to assist.

Skallagrim

[ReptileHouse]

Hey, Skall, this discussion is interesting and there's a lot of real content here. Please do continue. However, if you tone down the stridency a notch, I suspect it'll be even better. Remember, this is the choir you're preaching to here. [img]/images/graemlins/smile.gif[/img]

[Skallagrim]

One final note on this subject. The NY case used in the post a page back by vidocq, People v. Turner, finds poker a game of chance because "The skill of the player may increase the odds in the player's favor, but cannot determine the outcome regardless of the degree of skill employed."

This is wrong, shows a misunderstanding of poker, and is why the argument I have advanced is different. Skill CAN determine the outcome in poker. Its called bluffing. When a skilled player with a busted hand makes a bet that is designed to induce the other player(s) with better hands to fold because he senses weakness, and the other player(s) fold, the cards did not determine that outcome. The acts/decisions of the players determined that outcome. Acts and decisions can be called a lot of things, but chance is not one of them.

Look. I dont want to start a fight, and I dont want people going off half cocked figuring this argument is a sure winner. All I want is for people to realize the value of the argument and to present it in an appropriate way. Serious poker players have always known that poker is a game where results are mostly due to skill. The problem has always been proving that in a logical and legal way. We are at the verge, IMHO, of solving that problem.

One nice modern Appeals Court decision saying poker is mostly skill after a full and well-financed trial, and poker as a legal game is off and running in the vast majority of states, both online and in B&Ms. Its worth the shot (at least when there is no threat of jail or when that becomes the only way to avoid jail).

Skallagrim

[Skallagrim]

[ QUOTE ]
Hey, Skall, this discussion is interesting and there's a lot of real content here. Please do continue. However, if you tone down the stridency a notch, I suspect it'll be even better. Remember, this is the choir you're preaching to here. [img]/images/graemlins/smile.gif[/img]

[/ QUOTE ]

My apologies to anyone my "stridency" has offended. Perhaps its because I have debated this issue so many times in the legislative forum, that I get a little upset when it is summarily dismissed.

Also, as I said above, does anyone in this "choir" really believe that their poker "outcomes" are more due to the cards they get than how they play those cards? I stopped believing my poker results were mostly chance soon after I (finally) got good enough to be a consistent winner (albeit a small amount winner with plenty of variance). I thought pretty much everyone in the "choir" would easily agree with the main point (poker is mostly skill) and then we could just discuss the best way to prove it.

Finding out that a lot of poker players on this forum still seem to think poker is mostly chance shocks me, but I guess it also helps explain my winning record.

Skallagrim

[TMTTR]

I started writing a pissy post telling Mr. Skalligrim what he could do with his opinion of me and the research he wants me to do for him to prove a point that he is passionate about but I believe is tenuous, but instead...

I will close my side of it by saying that I have never summarily dismissed anything. I said your original post had holes and when challenged I pointed out that the biggest one was that you were relying primarily on whether poker is a game of skill or a game of chance. You quote the statute and then you ignored the actual words of the statute. As a poker player, I think that poker is a game of skill -- particularly over the long term -- but that chance plays a very significant (and, therefore, a "material") role -- particularly in the short term.

On the research point, I don't have the time or resources to immediately go to the cases, but my easily reachable Black's Law Dictionary defines material as "important; more or less necessary; having influence or effect..." (the word predominant/majority/etc. is not present) -- Chance is important, more or less necessary and has influence or effect on the game of poker.

A second "problem" (which is discussed here often) is that no one is getting any prison time for running a poker room. They are losing their money and property and possibly a couple of days in jail. I would never advise a client to risk imprisonment to take a stand for the rights of a bunch of poker players (including myself) to play a game if, instead, he could walk away with the equivalent of a slap on the wrist. This is not a lofty humanitarian issue.

I wish there was an easy way to change the law but (in my opinion) fighting this in Court (particularly in NYC) would very likely lead to failure. I hope someone proves me wrong.

'Nuff said.

[DeuceHigh13]

[ QUOTE ]
There are plenty of rooms in new jersey, but the state police have been cracking down pretty hard the last few months. Also, from what I have heard, in NY the only person who really takes a big hit is the operator of the club, here in NJ...the penalties are a lot stiffer for EVERYONE that is involved. Even the players get a court appearance and end up having to pay a fine.

[/ QUOTE ]

This isn't really true, at least not in my experience. I was in the 5th Street Club that was raided in 2005. It is still an ongoing trial in Morris County, and is fairly high profile because the club was owned by 2 morris county cops. I lost the money on the table (obviously) and they confiscated the cash in my wallet also. I was issued a lawsuit summons for the cash they took, which I didn't fight. Otherwise, that is it....no charges against me or court appearence required.