Going to trial, it’s said, is like rolling the dice. That proved true when an exasperated federal judge, the Honorable Gregory A. Presnell, ordered litigants to play a game of Rock Paper Scissors if they could not privately resolve their differences over a procedural issue. The lawyers were stalemated on where to depose a witness in the case, despite the fact that their offices were located just four floors apart in the same building. The judge didn’t want to waste public resources resolving such a trivial matter.

Many took the order as yet another exhibit in the case against shortsighted lawyers – and an attempt to shame them and their clients into more constructive behavior. Judge Presnell’s ruling also established a new best alternative to a negotiated agreement, or BATNA, for the parties: The matter would be decided by chance rather than on its merits, an unsettling prospect if each side was convinced of the righteousness of its position.