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Animal Instincts

By Annie Gausn | May 2, 2006

Law Office Management

May 2, 2006

Animal Instincts

Legal writing is littered with animal metaphors. Have we flown the coop, or is there an elephant in the room? by Jeff Bleich

By Jeff Bleich
      Has legal writing gone to the dogs?
      If you read enough appellate briefs and judicial opinions, one thing is clear: Legal writing is infested with animals. We compare adverse parties and counsel to every form of predatory, slithering, and generally yucky beast known; we manage to invoke animal trivia in even the most boring ERISA analysis; and we do not hesitate to describe litigation as "a jungle," "a dog-eat-dog world," "a zoo," or-as one U.S. Supreme Court justice described his own situation-"nine scorpions in a bottle." From their first-year student papers to lofty Supreme Court opinions, lawyers love animal metaphors.
      Admittedly, lawyers are not alone: A lot of the most common animal references that show up in briefs are the same clichés that appear in all bad writing. These include phrases such as "bird in the hand," "the chicken or the egg," "rats deserting a sinking ship," "snake in the grass," "bull by the horns," "letting the cat out of the bag," "playing possum," "catching flies with honey," and so on (to beat a dead horse). But lawyers have also bred their own exclusive menagerie: that distracting red herring, the menacing 800-pound gorilla, and that hard-to-ignore elephant in the room. Our dominion over these exotic beasts may reflect that we embrace certain animal metaphors even when no one else would have them. For example, not to be too technical, but 800-pound gorillas don't exist. The largest male gorillas rarely top 500 pounds, which means we might just as well claim to be menaced by an 800-pound hamster. Likewise, whether a herring is red doesn't make it distracting at all: The reference relates to the use of stinky herrings to throw dogs off the scent in a foxhunt by antifox hunting activists. Any old color of herring will do for that purpose. And as for elephants-surprisingly, elephants cannot actually fit through the doors of most rooms, so the concern about ignoring them never comes up in reality.
      Animal references are not always clichés or written by unaccomplished writers, however. Just look at last term's Supreme Court opinions. Justice Antonin Scalia, arguably the Court's most entertaining writer, devoted space in no less than three of his dissents to dogs, bears, and birds. In National Cable & Television Ass'n v. Brand X Internet Services (125 S. Ct. 2688 (2005)), he compared Internet services to "puppies," explaining that they don't lose their essential character simply because they are sometimes bundled and sold with other things. "The pet store may have a policy of selling 'puppies only with leashes,' but any customer will say that it does offer puppies-because a leashed puppy is still a puppy, even though it is not offered on a 'stand-alone' basis." Justice Scalia, however, was less forgiving of his colleagues' attempt to use dogs to prove a point. In his dissent in Koons Buick Pontiac GMC, Inc. v. Nigh (540 U.S. 50 (2004)), he complained that the majority had explained the significance of there being no legislative history by invoking Sherlock Holmes's deduction about "the dog that didn't bark." Justice Scalia derided what he called this "Canon of Canine Silence" and reasoned that Congress (presumably the dog) hadn't been silent in the statute at all. It was merely individual members of Congress (presumably, to Justice Scalia, various parts of the dog) that hadn't made whatever noise the majority expected dog parts to make.
      This kind of debate in the high court isn't isolated. A big fight in the Court's ruling in Alaska v. United States (125 S. Ct. 2137 (2005)), concerned the justices' relative sympathy for seabirds over bears. The majority-in what Scalia called an "Ursine Rhapsody"-observed that federal control of certain disputed lands would protect brown bears from being shot from the decks of pleasure yachts during their "distressingly frequent" swims to islands to feast on shoreline seabirds and seabird eggs. Though the desirability of bears eating birds was not at issue, Scalia angrily defended the bears, saying that "[i]t is presumptively true that the seabirds consider these visits distressingly frequent, and demonstrably true that the brown bears do not. It is unclear why this Court should take sides in the controversy." Based on this exchange, Chief Justice Roberts's Senate inquisitors were probably right to ask him lots of questions about his dissent in the "hapless toad" case (Rancho Viejo, LLC v. Norton, 334 F. 3d 1158 (2003)), to see whether he was indeed fit to serve on the Court.
      This preoccupation with animal allusions also extends throughout the lower courts. Indeed, lower court judges seem to have a morbid fear of being mistaken for foraging animals. "Judges are not like pigs, hunting for truffles buried in briefs." (United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); "Judges are not ferrets!" (Nicholas Acoustics & Specialty Co. v. H&M Constr. Co., Inc., 695 F.2d 839, 84647 (5th Cir. 1983)). Lawyers must deny even less flattering comparisons, protesting variously that they are not "lying snakes," "bloodthirsty sharks," or "blood-sucking leeches"-all characterizations I have read (though not about me, fortunately) in briefs over the years.
      Animal metaphors range from trite to downright mystifying. The two most popular trite references these days (based on an unscientific survey) seem to be: (1) "if it looks like a duck, and quacks like a duck, it probably is a duck" (i.e., it's a fair inference) or (2) "that dog don't hunt" (i.e., it's not a fair inference). Conveniently, both can be used in the same hearing.
      Some of the more entertaining animal references I've come upon lately originated in oral arguments about case management: "this case is like a shark, either it moves forward or it will die" and "this case is like an old dying pig, Your Honor; you can't just keep feeding it, so it's time to shoot it."
      Some animal references are familiar but nonetheless defamatory to the animals in question. For example, we should know by now that ostriches don't hide their heads in the sand to avoid facing danger; they lay their heads flat on the sand or nudge their eggs into a shallow pit. There'd be a whole lot fewer ostriches in the world if they actually hid their heads when being attacked. Likewise, spiders aren't dumb enough to get trapped in their own web (of lies or otherwise)-spiders are the ones that set the traps. But a few metaphors are just plain, well, batty. For example, one brief compared the government to "the great grey wolf, who after stalking, slaying, and consuming its prey, urinates on the remains to ruin the feast for others." That brief then went on to describe the government at several points as having its "leg poised." In another case, a judge admonished attorneys who demanded discovery because they claimed to "smell fish" that, though he felt sorry for the attack on their olfactory senses, they'd need to point to a few "gills and fins" (and maybe even a theory) before they could "cast the nets of discovery." (Howard Gunty Profit Sharing v. Quantum Corp., 1997 U.S. Dist LEXIS 23532.)
      What is one to make of all this focus on fur and feathers? One explanation is that writing about the law is not very interesting, so introducing references to animals now and then is a safe way to spice things up. Another explanation is that it is just force of habit. People in the old days used animal metaphors, so now we do too (which also explains why my kids are still singing songs about Miss Lucy and her steamboat, when steamboats haven't been around for nearly 100 years). I really don't know the reason. So I'll simply leave these observations for you to consider, and like the great sea tortoise that lays its eggs in the sand and then retreats to the sea, I will never return to them again.

Annie Gausn

Daily Journal Staff Writer

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