Denver Bar Association
December 2007
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The Infamous Coin Flip


by PFK

"Judge Who Decided Case With Coin Fired" was the headline from the Associated Press.

According to the Virginia Supreme Court, Judge James Shull admitted tossing a coin to determine which parent would have visitation with a child on Christmas.

This is bad? Am I missing something? Is there a Supreme Court decision that answers the question which parent should visit the child on Christmas? Is there some as yet unarticulated common law principle we don’t know about that answers this question? (Actually, there probably is an unarticulated common law principle to decide matters such as these — flip a coin.)

We all know that the only cases that go to trial are the cases in which neither side has enough evidence or legal precedent to force the other side to surrender. The reason the parties go to trial is that neither party knows for sure if they are going to lose. In other words, the case could go either way. You know what the attorneys say to their clients in these cases? "It’s a coin toss."

Do you realize that if the judicial system used the coin toss to decide issues, there would have been at least a 50-50 chance that O.J. would have been convicted?

And if the coin flip were used for national security issues, there would have been at least a 50-50 chance that there were weapons of mass destruction in Iraq. A 50-50 chance might even have been worth a devastating, unending budget-busting quagmire of a war.

The coin flip is a long-recognized arbiter of human behavior. It contains elements of chance, divinity and mystery, reaching back to the Greek fates that control our destiny. It’s random, but it’s a randomness mankind can accept because it’s a limited randomness — yes or no, 1 or 0, you either win or lose. It’s not complex or messy. You can use it to decide minor career moves or for the menu at Burger King.

But it can play a role in large arenas too. The coin toss is at the heart of the pageantry of this country’s main reason for being. After the F-16s have flown over, after the national anthem has been sung, as the country’s biggest feast day is about to begin, the National Football League uses — what else? — a coin toss to decide who will receive the kick-off at the Superbowl. If it’s good enough for the NFL, it might be good enough for the Domestic Relations Court of the state of Virginia.

Oh, well. At least the Virginia Supreme Court left open the possibility of implementing the phrase lawyers use even more often than "It’s a coin toss."

All good judges shoot craps.


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