By Steven Lubet
As reported by Adam Liptak in the New York Times (June 9, 2006), a federal judge in Florida has ordered two lawyers to “convene at a neutral site” and “engage in one (1) game of rock, paper, scissors” to settle a trivial dispute about the site for taking a deposition. Calling it a “new form of alternative dispute resolution,” Judge Gregory Presnell was obviously fed up with the lawyers’ inability to agree on even the most inconsequential matters, and he was clearly not inclined to spend his time resolving their petty differences.
Nonetheless, it appears that at least one of the lawyers has taken the challenge seriously. Plaintiff’s attorney David Pettinato informed Liptak that he has been in serious training for the event, practicing with his 5 and 9 year old daughters. They have evidently advised him to open with rock, as Pettinato believes that his case “is solid as a rock.”
This, of course, brings up the question of strategy. Is Pettinato really going to open with rock, as he has announced, or is it a ploy to fake out his adversary (defense counsel D. Lee Craig, who declined to speak to Liptak).
Like poker, rock-scissors-paper is a game of bluff, in which the optimum strategy is to disguise your hand (literally, in the case of rock-paper-scissors). In poker, therefore, you want to play strong cards as though they are weak (encouraging opponents to bet) and weak cards as though they are strong (encouraging opponents to fold). Rock-paper-scissors works the same way: You want to look like a rock when you are planning to show scissors (so that your opponent will play paper). Of course, you also have to be able to read your opponent’s “tells” that will reveal his intentions.
Getting back to attorney Pettinato, the first-level implication of his announcement is that he is planning to play scissors. Why? Because his proclaimed “rock” preference would lead Mr. Craig to play paper, which of course would be defeated by a surprise scissors move. But of course, that’s too obvious. Any seasoned litigator (or first-grader) would immediately figure out such a transparent strategy and respond by playing rock – thus breaking Pettinato’s scissors. Then again, that might be playing right into Pettinato’s hands (so to speak), if he is actually planning to show paper. And if Craig makes that assumption, he will show scissors, in which case Pettinato would win by actually sticking to his originally announced intention – Rock!
That sort of second- and third-guessing is called “recursive strategy,” in which the players continually attempt to out-think each other. In that game, even the truth (“I will play rock”) can be deceptive.
Because the counter-moves are potentially endless, the ultimate key to success really lies in (1) being able to read your adversary, and (2) being inscrutable yourself. Or as Eugene Pincham, the great Chicago trial lawyer, used to say: “When they think you’re coming by land, you are really coming by sea.”
Steven Lubet is Professor of Law at Northwestern University and a nationally recognized expert on trials and trial strategy. His latest book is Lawyer’s Poker: 52 Lessons that Lawyers Can Learn from Card Players. Visit the Lawyer’s Poker website to learn more!