Denver Bar Association
July 2006
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Rock, Paper, Scissors, Law: One federal judge makes law a child’s game

by Paul Kennebeck

If your client demands that you be proficient in litigation skills, insurance law and playing "rock, paper, scissors," what do you say?

Litigation skills, insurance law — no problem. Anyone knows that stuff. You just sue and scream.

But "rock, paper, scissors"?

What if you can’t make a fist? What if you can’t spread your fingers, scissors-like? Do you admit that arthritis has caught up with you? That you accidentally hammered your fingers over the weekend?

The New York Times recently reported that, "Fed up with the inability of two lawyers to agree on a trivial issue in an insurance lawsuit, a federal judge in Florida this week ordered them to ‘convene at a neutral site’ and ‘engage in one (1) game of ‘rock, paper, scissors,’ to settle the matter.’"

Finally, the courts recognize the truth. Law is a child’s game. Some win, some lose.

Every graduate of law school knows his time would have been better spent playing "rock, paper, scissors" for the past three years. The bar review would be intense, of course — cramped hands, painful fingers. And the bar exam itself would be a bit odd.

"Duel at Dawn" by Dick Ott

But these two lawyers in Florida. Are they like NFL wide-receivers? Do they have good hands? They’re involved in insurance litigation. There may be lots of money in
dispute. The New York Times didn’t say. Maybe it’s medical malpractice. Maybe there’s been pain, death and remorse among the clients. The pain and remorse will be resolved, of course, once money is rewarded. So "rock, paper, scissors" could play a significant role in their lives.

Question: Are there rules for "rock, paper, scissors"?

Second Question: Do the rules have loopholes?

Who will judge the winner? What if a "rock" looks like a "paper"? Who decides? Is there an appeal? To whom? Are the two attorneys practicing their moves as you read this?

Because these are lawyers, we know the game has been researched. They both know the statistically most common opening move. They know the second moves. They know how to feint, to balk, to chew gum, belch and break the opponent’s concentration. This is law, after all. By now they know the history of the game, the sites of famous matches, who is the Barry Bonds of the game. This is life as a reality game show.

But, because we all know the true nature of law, why didn’t the judge do the right thing and just order the attorneys to do a crap shoot?

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