It’s no surprise that trial lawyers are often drawn to politics — politics and trials both hinge on facts, credibility and persuasion, and both are swayed by similar strategies, tactics, persistence, diligence, insight and, unfortunately, fabrications and passions.

That is part of why, this blog, unlike most practicing attorney blogs, often jumps into politics. I believe politicians and political strategists have a lot to teach trial lawyers, or at least do a lot from which trial lawyers can learn.

Or re-learn.

Two months ago I made a prediction that I did not see made anywhere else: that Sarah Palin was announced as John McCain’s vice presidential running mate as part of a bait-and-switch strategy designed to disrupt the election narrative (in which John McCain was slowly losing the election), shore up social conservative support for McCain, and change expectations for his running mate.

I had many reasons to reach that conclusion, some of which you can read at the link, but chief among them in my mind was how the selection didn’t make any sense.

Sure, a number of pundits identified plausible reasons for the selection, including discontent among former Hillary Clinton supporters, but, long before the election, polls have consistently shown that most voters are both very concerned about electing a president over the age of 65 and uncomfortable with the idea of a female president. Add to those existing preconditions the fact that the McCain team had apparently done no vetting or other investigation of Palin, who had minimal experience, was under investigation for ethical violations, and had not shown any understanding of national politics, and you had, at least in my interpretation, a preponderance of evidence suggesting all was not as it appeared to be.

Put another way, had the vaunted Karl Rove political machine really chosen, without any detailed investigation, an unqualified candidate the voters were predisposed not to like? And had they done so while also conceding their strongest argument, that McCain’s experience trumped Obama’s vision?

Apparently so. I was wrong.

Here’s how Newsweek’s embedded reporters described it after the election:

Pawlenty, the popular governor of a swing state the Republicans badly needed to win in November, was the safe choice. Salter especially liked Pawlenty’s salt-of-the-earth qualities.

But McCain didn’t want the safe choice. A top adviser would later recall that telling McCain that Pawlenty was "safe" was "like guaranteeing" that McCain would not pick him. Prodded by Schmidt and Rick Davis, McCain began asking about Palin, a first-term governor who had shaken up the Alaska political establishment by taking on her own party elders, who was fearless and defiant, who was … a little bit like McCain.

There was no strategy: McCain, Schmidt and Davis were thinking, as Stephen Colbert would say, with their guts.

In one sense, there is no need for self-reflection, as the end result was the one I wanted, so does it really matter how we got there? Yet, every trial lawyer has had a trial end successfully but not in the way they imagined. After they fought hard, trapped the opposing party in their own contradictions, marshalled their strongest evidence and highlighted their opponent’s weakest evidence, the trial lawyers interviewed the jury afterwards and discovered the case the jurors decided bore little resemblance to the case the lawyers argued.

Sure, all the facts were the same, but in the end the jurors took the issues the lawyers thought were, respectively, dispositive and tangential, and flipped them. That’s as much as reason to re-evaluate how you tried the case than if you had lost it.

So it’s time to re-learn a lesson taught best to me by my brother, the theoretical physicist and poker player, who a while back related to me this strategic mental exercise:

Q: It’s early in a no-limit Texas Hold ‘Em tournament.  The last cards you’ve played to showdown were pocket kings for a flopped set that turned a boat.  Since then you’ve folded every single hand for the last 45 minutes.  From early position, you open-raise to 4 times the big blind with about 45 blinds behind.  What is your opponent thinking?

A: Nothing.

Sometimes, your complicated feigns are irrelevant and your opponent isn’t feigning anything at all.

Sometimes, they’re just thinking from the gut.

Next time you ask yourself, "what are they thinking?", consider that the answer could be "nothing."