Just Say 'No Fishing': The Lure of Metaphor

Abstract

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of addressing and proving the merits of their objections to the cost of discovery.

This article begins by tracing the development of the fishing expedition metaphor in civil cases, demonstrating the way its changing uses reflect and contribute to the legal controversies of each era. For most of its life, the metaphor has been used to condemn "fishing." During the period of the New Deal, and for several years afterward, "fishing" was acceptable. Recent cases, however, have gone back to a more skeptical view of certain types of discovery and litigation, so cases decrying "fishing expeditions" have returned with a vengeance.

Part II of this article examines the impact of the fishing metaphor. Calling something a "fishing expedition" makes the court's decision sound easy and obvious. Facile use of the metaphor can thereby obscure the policy trade-offs underlying decisions about pleadings and discovery. In an overwhelming proportion of modern cases, it is plaintiffs who are said to be "fishing," and the metaphor's concentration in certain kinds of cases reflects and reinforces a kind of anti-plaintiff bias. The article concludes by suggesting that we reject the fishing metaphor. It has been trite for more than two hundred years. It leads to mangled thoughts like "the trial court [should not] allow plaintiffs to embark on a wide-ranging fishing expedition in hopes that there may be gold out there somewhere." More important, the "fishing" metaphor can provide cover for rulings that if fully explained would be seen to violate the letter or spirit of the Federal Rules of Civil Procedure.

Keywords: discovery, civil procedure, pleadings, legal history, law and humanities

JEL Classification: K40, K41