Oregon State Bar Bulletin ó JUNE 2006

Feathers and Fur
A different kind of "animal law"
By Jeff Bleich

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 ó as one Supreme Court justice described his own situation ó "nine scorpions in a bottle." From Supreme Court opinions to first-year papers, 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 bad clichťs that would appear in any bad writing. These include phrases like "bird in the hand," "chicken or the egg," "rats leaving the ship," "snake in the grass," "bull by the horns," "letting the cat out of the bag," "playing possum," "catching flies with honey," etc. (to beat a dead horse). President Bush even introduced his own bizarre brand of Texas-style metaphor in the 2004 campaign, when he said, "I am a pitbull on the pantleg of opportunity." But lawyers have also curated their own exclusive menagerie: that distracting red herring, the menacing 800 lb. gorilla and that hard-to-ignore elephant in the corner. Our dominion over these exotic beasts may reflect that our exuberance is so great, we embrace metaphors that no one else would have. For example, not to be too technical, but 800 lb. gorillas donít exist. The largest male gorillas rarely top 450-500 lbs., which means we might just as well claim to be menaced by an 800 lb. hamster. Likewise, whether a herring is red doesnít make it distracting at all: the reference relates to the use of stinky herrings to throw dogs off the scent in a fox hunt by anti-fox hunting activists. Pretty much any old color of herring will do for that purpose. And as for elephants ó surprisingly, elephants do not actually fit through the doors of most rooms, and so the concern about ignoring them rarely comes up.

Animal references are not always clichťs or written by unaccomplished writers, however. Just look at last termís Supreme Court opinions. Justice Scalia, arguably the Courtís most entertaining writer, devoted space in no less than three of his dissents to dogs, bears or birds. In National Cable & Television Commín v. Brand X Internet Services, 545 US __ , 125 S.Ct. 2688 (2005), he compared Internet services to "puppies," explaining that they donít lose their essential character simply because they are sometimes bundled and sold with other things. "The pet store may have a policy of selling Ďpuppies only with leashes,í but any customer will say that it does offer puppies ó 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 colleaguesí attempt to use dogs to prove a point. In Koons Buick Pontiac GMC, Inc. v Nigh, 540 U.S. 50 (2004), Justice Scalia complained that the majority had explained the significance of the record showing no legislative history by invoking Sherlock Holmesí deduction about "the dog that didnít bark." Justice Scalia derided what he called this "Canon of Canine Silence" and reasoned that Congress (presumably, the dog) hadnít been silent in the statute at all. It was merely individual members of Congress (presumably, to Justice Scalia, various parts of the dog) that hadnít made whatever noise the majority expected dog parts to make.

This kind of debate in the high court isnít isolated. A big fight in the Courtís ruling in Alaska v. U.S., 545 US 75 (2005), concerned the justicesí relative sympathy for seabirds over bears. The majority ó in what Scalia called an "Ursine Rhapsody" ó observed that federal control of certain disputed lands would protect brown bears from being shot from the decks of pleasure yachts during their "distressing(ly) frequen(t)" feasts on shoreline seabirds and seabird eggs. Though the desirability of bears eating birds was not at issue, Scalia angrily defended the bears, saying that while "(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 Robertsí senate inquisitors were probably right to ask him lots of questions about his "hapless toad" reference to see whether he was indeed fit to serve on the Court.

This preoccupation with animal allusions 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, 846-47 (5th Cir. 1983). Lawyers must deny even less flattering comparisons, protesting variously that they are not "lying snakes," "bloodthirsty sharks," "blood-sucking leeches," or "greedy pigs" ó all characterizations I have read (though fortunately not about me, so far) in briefs over the years.

The animal metaphors range from trite to down-right mystifying. The two most popular trite references these days (based on an unscientific survey) seem to be either: 1) "if it looks like a duck, and quacks like a duck, it is probably a duck" (i.e., itís a fair inference); and 2) "that dog donít hunt" (i.e., itís not a fair inference). Conveniently, both can be used in the same hearing. Some of the more entertaining animal references concern case management, including: "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 canít just keep feeding it, so itís time to shoot it." Some are familiar but nonetheless defamatory to the animals in question ó for example, we should know by now that ostriches donít hide their heads in the sand to avoid facing danger; they place their heads on the sand to move their eggs. Likewise, spiders arenít dumb enough to get trapped in their own web (of lies or otherwise): spiders are the ones who 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 sympathized with the attack on their olfactory senses, theyíd need to point to a few "gills and fins" (and maybe even a theory) before they could "cast the nets of discovery."

What is one to make of all this focus on fur and feathers? One explanation is that writing about the law is not that interesting, and so introducing a few references to animals now and then is a safe way to spice up our writing. Another explanation is that this is just force of habit. People in the old days used animal metaphors and so now we do too (which also explains why my kids are still singing about Ms. Lucy and her steamboat when steamboats havenít been around for nearly 100 years). I really donít know. So instead, I simply leave these observations behind for you to consider, and like the great sea turtle that lays its egg in the sand and then retreats to the sea, I will never return to them again.

Jeff Bleich has read and written a lot of briefs and draft opinions. He clerked for the D.C. Circuit and U.S. Supreme Court, has filed appellate briefs in dozens of cases including matters before the United States and California Supreme Courts. He has also lectured on appellate advocacy at Boalt and Stanford, and serves on the ABAís Amicus Curiae committee. And he has an (unskinned) cat and a (willing to hunt) dog.

This article first appeared in the May 2006 issue of California Lawyer.

© 2006 Jeff Bleich

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