Ipse Dixit: Game Worth the Candle?

• Jurisdiction: United States
• Publication year: 2022

Ipse Dixit: Game Worth the Candle?

Hobson's Choice. So I'm sitting in this lawyer's library waiting for the deposition to start and I notice a book on his shelf titled Cassell's Dictionary of Word and Phrase Origins by Nigel Rees. I had just been informed, in a matter unrelated to the case I was there for, that a decision I was about to make was a "Hobson's Choice." I pulled Cassell's off the shelf (this lawyer still had actual books) and looked it up. There really was a Tobias Hobson who lived in Cambridge (until 1631) and who owned a livery at which one could hire a horse. The rule was, however, that you could hire any horse you wanted, as long as it was the one next to the door, or no horse at all. Thus, "Hobson's Choice" is no choice at all.

That led me to wonder if Cassell's chronicled any other phrases that we lawyers encounter and use every day but have no idea of the derivation. I looked up a few. (It was a long wait.)

Red Herring. How often have we heard, "Your Honor, their argument is a red herring!" We all know that the phrase implies that the argument is meant to distract the court from the real issue in the case—your issue. According to Cassell's, there is no fish known as a red herring. The phrase was derived from the practice of using a kipper (usually a herring), soaking it in brine, smoking it to produce a very pungent smell, which caused the flesh of the fish to turn reddish. Then the herring was dragged across a trail to see if the dogs would be distracted from the scent they were there to find.

Draconian. We've all heard how draconian some laws are or some judge's decision is. Who is this guy and why are lawyers talking so bad about him? According to Cassell's, Drakon (aka Draco) was an Athenian legislator known for his harsh, sweeping, drastic, and severe legislation causing heavy penalties for small infractions. In response to the unjust interpretation of oral law by Athenian aristocrats, he wrote the Draconian code near the end of the 7th century BC.

Hoist on His Own Petard. This is a favorite of Vince Fornias, who we all miss writing in this spot. It is from Shakespeare's Hamlet. Hamlet discovers a plot on his life by Claudius and resolves to respond by letting the plotter be "hoist on his own petard." A petard is a small explosive device. When the bomb maker accidentally explodes his own...