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60 Ga. L. Rev. 1 (2025)

handle is hein.journals/geolr60 and id is 1 raw text is: GAMESMANSHIP IN CIVIL LITIGATION Edith Beerdsen* In civil litigation, strategy is everywhere. Some of it is explicitly envisioned by rules of procedure, but other forms of strategy rely more on clever exploitation of gaps in the rules, sometimes through trickery, surprise, or psychological mind games. The role strategy plays in civil litigation is underexamined, which raises two concerns: first, this lack of attention entrenches strategy by default as a procedural value in competition with accuracy, efficiency, and other procedural values. Second, it amplifies the disadvantages experienced by unrepresented litigants. This Article builds on earlier work to examine how courts shape the space that litigants have for strategic behavior, in service of an inquiry into how that space ought to be shaped. Battles over the meaning and rightful place of strategy in civil litigation tend to play out in the arena of gamesmanship, a term courts use with increasing frequency to refer to behavior in the gray zone between the clearly allowed and the clearly disallowed. Strategic behavior in this realm is often unregulated by rules, only weakly governed by norms, and subject to significant judicial discretion. Judicial decisions in cases involving gamesmanship frequently expose tensions between respect for zealous advocacy and concerns about fairness and accuracy. * Associate Professor of Law, Temple University, James E. Beasley School of Law. I am grateful for comments and from to Gilat Bachar, Jane Baron, Rachel Bayefsky, Jeffrey Dunoff, Nate Ela, Richard Friedman, Alex Gouzoules, Craig Green, Paul Gugliuzza, J. Benton Heath, Helen Hershkoff, Brian Hutler, Chris Jaeger, Dan Lewerenz, Tom Lin, Meghan Morris, Julie Randolph, Dorit Reiss, Matthew Shapiro, Chris Upton, Harwell Wells, and participants at internal workshops at Temple Law School, the AALS Jurisprudence Workshop, the Maryland Law School's Legal Theory Workshop, and the Ninth Civil Procedure Workshop. Many thanks to the editing team at the Georgia Law Review, especially Trudi Sundberg, Eric Narbo, and John Douglas Kirby, for superb editing. 1