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.
This judicial tactic, or course, goes back to Solomon. In the biblical story, the threat of dividing the baby in two invokes the true mother’s love. By contrast, making a decision with a game of chance is less a matter of producing the “right” result than simply an efficient way of avoiding a tiresome inquiry into which fairness standards should apply.
Perhaps shamed by the publicity their case sparked worldwide, the attorneys privately agree on a venue for a deposition.