The Volokh Conspiracy - 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."

	[Eugene Volokh, June 7, 2006 at 3:28pm] Trackbacks 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."