Rock, Paper, Scissors as Alternative Dispute Resolution:

An order from U.S. District Court Judge Gregory Presnell in Avista Management, Inc. v. Wausau Underwriters Insurance Co. (paragraph breaks added):

This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion --- the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts --- it is ORDERED that said Motion is DENIED.

Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness.

At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building.

Incidentally, such random (or close to random) decisionmaking isn't entirely novel to the legal system: In some courts, the chief judge is selected from among the court's members based on seniority and related factors, and when there's a tie in those factors, the tie is broken by a coin flip. Tied elections are sometimes resolved the same way; in Nevada, they may also sometimes resolved by drawing cards (no joke).

On the other hand, in In re Brown, 662 N.W.2d 733 (Mich. 2003), the Michigan Supreme Court censured a judge for using a coin flip to make a substantive decision (item numbers omitted):

[The judge] encouraged the parties to resolve the matter themselves, but when they were unable to agree and where each side had equally compelling arguments as to why the children should be with one party on Christmas day instead of Christmas Eve she told the parties it was nothing more than a coin flip. Instead of just issuing a decision regarding the dispute, Respondent stated that she would decide it by the flip of a coin.

The court ordered the judge to "[r]efrain from resolving any disputed issue by the flip of a coin." (Of course, even if coin flips are improper for making substantive decisions, they may still be proper for relatively minor procedural matters such as the location of depositions.)

Thanks to Diane Knox for the pointer; she also reports that a fellow lawyer in Miami says that "the use of rock/paper/scissors (a.k.a. roshambo) has become such a prevalent means of resolving discovery disputes that some local law firms now take a student's roshambo skills into consideration when making hiring decisions." I can't claim great confidence in the "now take skills into consideration" assertion, but, as we say in Russian, "I'm selling it to you for what I paid for it."

UPDATE: OK, this I can't endorse -- "A jury unable to decide on a verdict tossed a coin last week to convict a man of murder." The procedure quite properly "prompt[ed the] judge to declare a mistrial."

The Michigan judge's decision reminds me of various occasions when Judge Posner has been criticized for being too honest about the judicial decisionmaking process.

If it's simply a tough call, a court shouldn't duck its responsibility by flipping a coin; but where there legitimately is no basis to distinguish between the claims of the two sides, a court shouldn't have to pretend that one side has the better case.

I understand why, in bitterly contested divorce cases, the parties sometimes can't work out seemingly straightforward decisions, but it's silly to see the same thing happen regarding discovery disputes in commercial litigation that the lawyers should simply work out.
6.7.2006 4:40pm
John Steele (mail):
For law geeks interested in legal sortilege, I can recommend this book by Neil Duxbury, Random Justice : On Lotteries and Legal Decision-Making
6.7.2006 4:45pm
Anonymous Jim:
Particularly in the case of the Michigan matter, it seems to me that the problem is not that the decision was made by the flip of a coin but rather by an acknowledgement that the decision was made by a flip of the coin. If it really was a close call where either side could win, the judge could have flipped the coin in private then wrote the order based on the result of the flip.
6.7.2006 5:09pm
Joel B. (mail):
The Michigan example seems interesting, if only because that seems like an example of a case where it seems appropriate to flip a coin for a substantive decision. Where both parents are equally worthy of spending time with the children on Christmas, the only really fair way to decide the matter is to leave it up to time and chance. And then rotate year by year. We should acknowledge that in some cases, the best method is to leave the decision "to chance."
6.7.2006 5:14pm
Armen (mail) (www):
This is an atrocious ruling. One (1) game of rock, paper, scissors? I really just don't know where to begin.

First, the judge doesn't specify that they must play until there's a winner. What if on the first game it's a tie? Sure you can assume she meant one game as in until there's a winner, but really, if they can't agree on the site of depos, can you REALLY assume that the rules for rock, paper, scissors will not be contested?

Second, every one knows that you play 2 out of 3 for any meaningful dispute resolutions.
6.7.2006 5:36pm
@ndrew (mail):
Potential Rules of Civil (RPS) Procedure:
6.7.2006 5:44pm
Joshua (www):
Another way they could settle disputes of this nature would be to bring the two parties to a soccer field and have a penalty-kicking contest.

Hey, if it's good enough for the World Cup...
6.7.2006 5:55pm
Paul McKaskle (mail):
California provides for a coin-flip as the last resort to decide a tied election.
6.7.2006 5:59pm
Colin (mail):
Theoretical matters aside, the order explicitly provides for an appeal. If the parties are so contentious and committed that they cannot agree on where to hold a deposition, the loser of the game will certainly appeal. This seems like a waste of everyone's time.

But then, the court might expect the frivolity of the exercise to calm the parties down and make them more amenable to compromise. In other words, and this is pure speculation, wasting a little time might be just what the court intends.
6.7.2006 6:07pm
Nels Nelson (mail):
For those interested, and who aren't already familiar with it, RPS-25 is a variant with 25 hand positions, minimizing the number of ties. Print out the handy chart to learn all the positions and verbs.
6.7.2006 6:09pm
Ira B. Matetsky (mail):
Another decision criticizing a "coin flip" Judge:
6.7.2006 6:13pm
Anonymous Jim:
"If the parties are so contentious and committed that they cannot agree on where to hold a deposition, the loser of the game will certainly appeal. This seems like a waste of everyone's time."

If the parties avail themselves of the appeal mechanism, I'd love to be a fly on the wall in those chambers on July 7th.
6.7.2006 6:17pm
James Fulford (mail):
I don't really think there is such a thing as "roshambo skills" unless you play someone for several games, in which case they might develop patterns.

In You Only Live Twice,(1964)James Bond finds himself playing against a Japanese Secret Service chief whom he doesn't really want to beat, but thinking about it, he realizes it would be just as hard to lose as it would be to win. They aren't, I should make clear, playing as a form of dispute resolution, but as a game at a geisha party.

It was the old game of Scissors cut Paper, Paper wraps Stone, Stone blunts Scissors, that is played by children all over the world. The fist is the Stone, two out-stretched fingers are the Scissors, and a flat hand is the Paper. The closed fist is hammered twice in the air simultaneously by the two opponents and, at the third downward stroke, the chosen emblem is revealed. The game consists of guessing which emblem the opponent will choose, and of you yourself choosing one that will defeat him. Best of three goes or more. It is a game of bluff.

Tiger Tanaka rested his fist on the table opposite Bond. The two men looked carefully into each other's eyes. There was dead silence in the box-like little lath-and-paper room, and the soft gurgling of the tiny brook in the ornamental square of garden outside the opened partition could be heard clearly for the first time that evening. Perhaps it was this silence, after all the talk and giggling, or perhaps it was the deep seriousness and purpose that was suddenly evident in Tiger Tanaka's formidable, cruel, samurai face, but Bond's skin momentarily crawled. For some reason this had become more than a children's game. Tiger had promised he would beat Bond. To fail would be to lose much face. How much? Enough to breach a friendship that had become oddly real between the two of them over the past weeks? This was one of the most powerful men in Japan. To be defeated by a miserable gaijin in front of the two women might be a matter of great moment to this man. The defeat might leak out through the women. In the West, such a trifle would be farcically insignificant, like a cabinet minister losing a game of backgammon at Blades. But in the East? In a very short while, Dikko Henderson had taught Bond total respect for Oriental conventions, however old-fashioned or seemingly trivial, but Bond was still at sea in their gradations. This was a case in point. Should Bond try and win at this baby game of bluff and double-bluff, or should he try to lose? But to try and lose involved the same cleverness at correctly guessing the other man's symbols in advance. It was just as difficult to lose on purpose as to win. And anyway did it really matter? Unfortunately, on the curious assignment in which
James Bond was involved, he had a nasty feeling that even this idiotic little gambit had significance towards success or failure.

As if with second sight. Tiger Tanaka spelled the problem out. He gave a harsh, taut laugh that was more of a shout than an expression of humour or pleasure. 'Bondo-san, with us, and certainly at a party at which I am the host and you are the honoured guest, it would be good manners for me to let you win this game that we are to play together. It would be more. It would be required behaviour. So I must ask your forgiveness in advance for defeating you.'

Bond smiled cheerfully. 'My dear Tiger, there is no point in playing a game unless you try to win. It would be a very great insult to me if you endeavoured to play to lose. But if I may say so, your remarks are highly provocative. They are like the taunts of the sumo wrestlers before the bout. If I was not myself so certain of winning, I would point out that you spoke in English. Please tell our dainty and distinguished audience that I propose to rub your honourable nose in the dirt at this despicable game and thus display not only the superiority of Great Britain, and particularly Scotland, over Japan, but also the superiority of our Queen over your Emperor.' Bond, encouraged perhaps by the crafty ambush of the sake, had committed himself. This kind of joking about their different cultures had become a habit between himself and Tiger, who, with a first in PPE at Trinity before the war, prided himself in the demokorasu of his outlook and the liberality and breadth of his understanding of the West. But Bond, having spoken, caught the sudden glitter in the dark eyes, and he thought of Dikko Henderson's cautionary, 'Now listen, you stupid limey bastard. You're doing all right. But don't press your luck. T.T.'s a civilized kind of a chap - as Japs go, that is. But don't overdo it. Take a look at that mug. There's Manchu there, and Tartar. And don't forget the soanso was a Black Belt at judo before he never went up to your bloody Oxford. And don't forget he was spying for Japan when he called himself assistant naval attache in their London Embassy before the war and you stupid bastards thought he was okay because he'd got a degree at Oxford. And don't forget his war record. Don't forget he ended up as personal aide to Admiral Ohnishi and was training as a kamikaze when the Americans made loud noises over Nagasaki and Hiroshima and the Rising Sun suddenly took a backward somersault in to the sea. And, if you forget all that, just ask yourself why it's T.T. rather than any other of the ninety million Japanese who happens to hold down the job as head of the Koan-Chosa-Kyoku. Okay, James? Got the photo?'

Since Bond had arrived in Japan he had assiduously practised sitting in the lotus position. Dikko Henderson had advised it. 'If you make the grade with these people,' he had said, 'or even if you don't, you'll be spending a lot of time sitting on your ass on the ground. There's only one way to do it without cracking your joints; that's in the Indian position, squatting with your legs crossed and the sides of your feet hurting like hell on the floor. It takes a bit of practice, but it won't kill you and you'll end up gaining plenty efface.' Bond had more or less mastered the art, but now, after two hours, his knee-joints were on fire and he felt that if he didn't alter his posture he would end up bandy-legged for life. He said to Tiger, 'Playing against a master such as yourself, I must first adopt a relaxed position so that my brain may be totally concentrated.' He got painfully to his feet, stretched and sat down again - this time with one leg extended under the low table and his left elbow resting on the bent knee of the other. It was a blessed relief. He lifted his tumbler and, obediently, Trembling Leaf filled it from a fresh flagon. Bond downed the sake, handed the tumbler to the girl and suddenly crashed his right fist down on the lacquer table so that the little boxes of sweetmeats rattled and the porcelain tinkled. He looked belligerently across at Tiger Tanaka. 'Right!'

Tiger bowed. Bond bowed back. The girl leant forward expectantly.

Tiger's eyes bored into Bond's, trying to read his plan. Bond had decided to have no plan, display no pattern. He would play completely at random, showing the symbol that his fist decided to make at the psycho-logical moment after the two hammer blows.

Tiger said, 'Three games of three?'


The two fists rose slowly from the table top, quickly hammered twice in unison and shot forward. Tiger had kept his fist balled in the Stone. Bond's palm was open in the Paper that wrapped the Stone. One up to Bond. Again the ritual and the moment of truth. Tiger had kept to the Stone. Bond's first and second fingers were open in the Scissors, blunted by Tiger's Stone. One all.

Tiger paused and placed his fist against his forehead. He closed his eyes in thought. He said, 'Yes. I've got you, Bondo-san. You can't escape.'

'Good show,' said Bond, trying to clear his mind of the suspicion that Tiger would keep to the Stone, or alternatively, that Tiger would expect him to play it that way, expect Bond to play the Paper and himself riposte with the Scissors to cut the paper. And so on and so forth. The three emblems whirled round in Bond's mind like the symbols on a fruit machine.

The two fists were raised - one, two, forward!

Tiger had kept to his Stone. Bond had wrapped it up with the Paper. First game to Bond.

The second game lasted longer. They both kept on showing the same symbol, which meant a replay. It was as if the two players were getting the measure of each other's psychology. But that could not be so, since Bond had no psychological intent. He continued to play at random. It was just luck. Tiger won the game. One all.

Last game! The two contestants looked at each other. Bond's smile was bland, rather mocking. A glint of red shone in the depths of Tiger's dark eyes. Bond saw it and said to himself, 'I would be wise to lose. Or would I?' He won the game in two straight goes, blunting Tiger's Scissors with his Stone, wrapping Tiger's Stone with his Paper.

Tiger bowed low. Bond bowed even lower. He sought for a throwaway remark. He said, 'I must get this game adopted in time for your Olympics. I would certainly be chosen to play for my country.'

Tiger Tanaka laughed with controlled politeness. 'You play with much insight. What was the secret of your method?'

Bond had had no method. He quickly invented the one that would be most polite to Tiger. 'You are a man of rock and steel, Tiger. I guessed that the paper symbol would be the one you would use the least. I played accordingly.'

This bit of mumbo-jumbo got by. Tiger bowed. Bond bowed and drank more sake, toasting Tiger.

6.7.2006 6:19pm
Dylanfa (mail) (www):
Real men play roshambo by Eric Cartman rules.
6.7.2006 6:34pm
Ron Hardin (mail) (www):
The ``avalanche'' is my favorite rock paper scissors strategy. From the strategy page
6.7.2006 6:49pm
Fishbane (mail):
I appreciate the judges position, but due to my own legal philosophy must campaign for Rock Paper Scissors Lizard Spock.
6.7.2006 7:01pm
Ye gods!

According to CNN, the opposing attorneys' offices are in the same building, four floors apart.
6.7.2006 7:05pm
Frank Drackmann (mail):
The best part of RPS is the slapping of the forearm that the winner traditionally gets to do, although to do it correctly, you need to lick your fingers before delivering the blow.
6.7.2006 7:06pm
Public_Defender (mail):
I'd like to see what a $400-an-hour attorney puts on a timesheet for the rock-paper-scissors game:

0.2 review order setting hearing, ltr to client
1.3 travel to and from court
0.8 wait for hearing
0.4 negotiations w/ opposing counse re: game rules
0.1 play rock paper scissors
0.2 prepare entry journalizing results
0.2 ltr to client re: rock paper scissors results
0.1 consider whether it's ethical to bill my client just because I threw a temper tantrum about holding a deposition in my opposing counsel's office.
6.7.2006 7:43pm
The Original TS (mail):
On the other hand, in In re Brown, 662 N.W.2d 733 (Mich. 2003), the Michigan Supreme Court censured a judge for using a coin flip to make a substantive decision (item numbers omitted):

Of course, the judge's whole point here is that this isn't a "substantive decision." As RichC points out,

According to CNN, the opposing attorneys' offices are in the same building, four floors apart.

The judge is politely telling these two attorneys to start acting like professionals and stop acting like juvenile twits. If they are unable even to agree on a location for their "match," they're going to be forced to do it in public. You'll note that the judge chose 4:00 on a Friday on the courthouse steps. You can bet that every member of the local legal profession will be there to point and laugh.
6.7.2006 9:58pm
Please note the time that the rock, paper, scissors resolution is to occur. 4:00pm on the Friday before the long weekend (assuming that the firms involved, like mine, are closed on July 3). The real point of the order, in my opinion, is to shame the parties into seeing how petty their dispute is. I can only assume that there are plenty of other contentious issues in this case and the location of a 30(b)(6) deposition is only a minor ripple in the great lake of the litigation.
6.7.2006 10:32pm
Stormy Dragon (mail) (www):
6.7.2006 11:46pm