Trial by Lots

paper_rock.jpgAfter one particularly frustrating and confusing day in law school, I remember vehemently defending trial by ordeal to one of my classmates. (Unfortunately, I was that kind of law student.) For example, in ancient Israel they seem to have resolved litigation from time to time by resort to a kind of holy set of dice, known as the Urim and Thummim, which would be cast to decide who would win a case. There is much to commend such a system. It is quick, efficient, eliminates any advantage that one party might have because of wealth or power, and in an actuarial sense it is completely predictable. One can’t say the same thing, for example, about American tort law. It would seem that the Honorable Gregory Prensell of the U.S. District Court for the Middle District of Florida shares some of these sentiments. In Avista Management, Inc. v. Wausau Underwriters Ins. Co., No. 6:05-CV1430ORL31JGG, 2006 WL 1562246 (M.D. Fla. June 6, 2006), he issued the following order:

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, 80 North Hughey Avenue, Orlando, Florida 32801.


I still think it would have been cooler if Judge Prensell had ordered the parties to throw a set of sacred dice.

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9 Responses

  1. John Armstrong says:

    For example, in ancient Israel they seem to have resolved litigation from time to time by resort to a kind of holy set of dice, known as the Urim and Thummim, which would be cast to decide who would win a case.

    Just checking: you didn’t happen to go to Yale, did you? Lux et Veritas and all.

  2. Patrick S. O'Donnell says:


    Presuming you’ve yet to read it, Jon Elster’s Solomonic Judgements: Studies in the Limitations of Rationality (Cambridge, UK: Cambridge University Press, 1989), treats such topics (i.e., Gordian Knots), in particular (and by way of illustration) with regard to child custody cases. It’s a delightful read.

    However, I doubt the dice need be ‘sacred.’ Indeed, it’s perhaps better if we left divine will out of this and chalked it up to fate, chance or luck: all parties might be more accepting of the result!

    [Incidentally, some time ago there was a post on this case at TalkLeft as well]

  3. Nate Oman says:

    “…you didn’t happen to go to Yale, did you?”

    Perish the thought! I went to a law school.

    On the divinity of the dice, I am not so sure. If the outcomes can be ascribed to the inscrutable will of diety you might have a bit more support for the system.

  4. Patrick S. O'Donnell says:

    But the notion of ‘the inscrutable will of the deity’ does not make sense to agnostics, atheists, humanists, Taoists, Confucians, Buddhists, etc.

  5. Patrick S. O'Donnell says:

    I might have said that dice plain and simple could be accepting to all parties, theists and non-theists alike insofar as the former could still interpret the results as the inscrutable will of their deity, while the latter could asribe the outcome to Fortuna, luck, chance, what have you.

  6. John Steele says:

    Neil Duxbury’s “Random Justice” and Barbara Goodwin’s “Justice by Lottery” deal with justice by lottery. IIRC, in the case recreated in the movie Amistad, the lower court was going to use a lottery to determine which slaves would be returned. Judge Prensell’s decision is an odd mix of justicy by lottery and trial by combat.

  7. Nate Oman says:

    It occurs to me that legal lot casting in the Roman Republic (it was often used to divy up responsibilities between elected magistrates) was prone to chronic manipulation, which — of course — would undermine the fairness and predictability of the system.

    Even under a system of random justice one needs an honest judge throwing the dice it would seem.

  8. arthur says:

    For a judicial ruling order mandating a coin flip to decide which contender would receive a multi-million dollar prize, see Order, Oct. 19, 1998, LaPerriere v. Vesta Ins. Group, No. CV-98-AR-1407-S (N.D. Ala. 1998).

  9. Ron Myers says:

    This method was also used to decide who got to auction off an art collection. See:

    “Rock, Paper, Payoff: Child’s Play Wins Auction House an Art Sale


    Published: April 29, 2005

    It may have been the most expensive game of rock, paper, scissors ever played.

    Takashi Hashiyama, president of Maspro Denkoh Corporation, an electronics company based outside of Nagoya, Japan, could not decide whether Christie’s or Sotheby’s should sell the company’s art collection, which is worth more than $20 million, at next week’s auctions in New York.”

    The rather lengthy url is noted below: