Stupid Legal Metaphors


Cliche metaphors tend to have a life of their own. They get passed on through common usage even after they lose their evocative power and their original meaning is lost to time. The law is particularly bad about this, propogating antiquated metaphors long after they've become meaningless. I was reminded of this by my Civil Procedure professor's discussion of the claim preclusion doctrine. The idea here is that, once a verdict has been entered on a lawsuit about some incident, you can't, generally, come back and sue again based on the same incident. The "generally" in that last sentence is why we spend several days on the topic, because there are always exceptions. As a general example of the doctrine, if you're black and your application for a license to build a disco is rejected, and you sue for racial discrimination and it gets thrown out, you can't sue again for the same rejection on grounds that, say, there was a conspiracy between the Board of Commerce and the disco across the street. You have to make all your claims in one case, because once the case is done, the matter is considered decided.

That's not the point. The Official Favored Legal Metaphor for the doctrine of claim preclusion is that "you don't get a second bite at the apple." This makes complete sense. It is well known that apples are not a fruit which can be bitten twice, or even more than once. The example of taking single bites out of apples, but being constrained from taking more, is entirely analagous to the idea of being able to sue once, but no more. Verbal irony aside, did the originator of this metaphor even know how apples worked? Why do lawyers (and, more to the point, law professors) propogate this silly metaphor? Surely some of them have encountered apples and discoverd that you can, indeed, take a second bite of the apple.


Well, see, before the days of all produce being factory farmed, fruits and vegetables were generally smaller and had more flaws. So perhaps the inventor of the metaphor was accustomed to tiny tiny apples with lots of worm holes, out of which you might get one good bite before you'd be either out of apple or eating worms. Perhaps the point is that this system saves the would-be plaintiff from filing a suit which would be much like eating a wormy section of apple in that it would not give satisfactory results (because who's really going to be sympathetic to the second case anyway?).

Dianna Woolsey, professional rationalization services. Reasonable rates and state-of-the-art techniques. No job too implausible.

On an even more plausible note, I wonder if the reference is not to holding an apple in your hand and eating it, but to bobbing for apples. If you don't get an apple the first time, I don't think you get to bob down again for a second try.

Your explanation is much more plausible than mine. I assumed that it was some sort of Garden of Eden thing, given that these metaphors were generated by old white men who liked to quote Cicero and make allusions to the Bible and classical literature. Like, Eve took one bite and then God cast her out. That seems like an odd lesson to draw from the story, though. God didn't exactly say "I banish you from paradise forever, and shall place an angel with a flaming sword at the entrance to ensure that none of your progeny shall ever return! And guess what else? You don't get to finish your apple! How about that?"

On a side note, claim preclusion isn't really so much about preventing Plaintiffs from making bad arguments as it is about "conserving judicial resources." Which is to say, ignoring perfectly good complaints because the court's too busy. A surprisingly large number of legal doctrines have at their heart "Justice involves doing X. But we're not going to do X, because that would involve more work for us." That's one of the reasons judges are very reluctant to change rules to be more favorable to plaintiffs. The more favorable the legal landscape is to plaintiffs, the greater the chances of a successful lawsuit, and the more lawsuits there will be. So unless the situation is truly egregious, judges prefer to leave rules that favor defendants alone, because it means fewer suits.

Claim preclusion is a balance. You get your day in court, and you can make whatever arguments you like. But once a decision is made, that's it. Unless new facts come to light, that incident is over as far as the court is concerned, even if you come up with a new theory, and even if your new theory is better. You've already short your proverbial wad.

Hey! Maybe that should be the new metaphor for claim preclusion: Shooting your load. "You only get one chance to shoot your load, so you'd better make it count." It's sexist, yes, and vulgar. But it gets the point across, it appeals to the MTV Generation, and it makes more sense than that apple thing.

The problem with switching to that metaphor is that it suggests that if you wait 10 or 20 minutes and then start fooling around with the case some more, you can indeed sue again. You'd have to specify that you can't shoot the same load more than once, but it's losing some of its catchiness by now.

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This page contains a single entry by Zach published on November 11, 2005 2:08 PM.

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