The Proper Use of Animal References in Law, 0917 COBJ, Vol. 46, No. 8 Pg. 22
| Author | MARK COHEN, J. |
August, 2017
LEGAL MISCELLANEA
MARK COHEN, J.
The practice of law is replete with animal references. Lawyers routinely employ animal references in argument and writing. We say, "That dog don't hunt" to refer to a flawed theory. A person we don't trust is a "snake in the grass." Even accomplished jurists use animal references. Oliver Wendell Holmes once described the Supreme Court as "nine scorpions in a bottle." More recently, in Koons Buick Pontiac CMC, Inc. v. Nigh,1 Justice Scalia's dissent accused the majority of creating a "Canon of Canine Silence" in considering the legislative history of a statute. Using animal references to paint opposing counsel or parties as untrustworthy is common.2 A few lawyers even adopt animal nicknames. For instance, an injury lawyer in Texas obtained a federal trademark registration on "Injured? Get the Gorilla!"3
Of course, animal references are unavoidable when considering laws pertaining to animals. For example, it is a federal offense to import a "mongoose of the species Herpestes auropunctatus."4
But when lawyers use animal references in other ways, we lack uniform guiding principles. This article seeks to remedy that. Below are five best practices for using animal references in your legal practice.
1. Select an Animal Appropriate for Your Reference
The
most common mistake in using an animal reference is selecting
an animal that does not possess the traits or character you
seek to portray. One example of this is a speech in which Al
Gore reportedly said (referring to President George H.W.
Bush's attempt to portray himself as an
environmentalist), "A zebra cannot change its
spots."5 For an example of the correct way to
do it, see People v. Larson,
Even Supreme Court justices get it wrong now and then. In Spano v. New York,7 Justices Douglas, Black, and Brennan concurred in the judgment, and in their concurrence used the term "kangaroo court" to describe a procedure police used to obtain confessions while effectively denying the accused the right to counsel. Justice Douglas's reference to a marsupial is puzzling. Aside from the fact that kangaroos are not native to America, kangaroos are not known for being unfair, rushing to judgment, or being otherwise averse to due process. The reference to an Australian animal with powerful hind legs, a muscular tail, a small head, and good boxing skills simply does not work.
This principle also holds true in selecting an animal nickname. For reasons beyond this article's scope, the public came to see aggression as a good trait in lawyers. This led some lawyers to adopt animal nicknames. In the days before the Internet, when lawyers advertised in telephone books, it was common to see law firm ads featuring snarling dogs or angry bears. But is a grizzly really the animal you want associated with your practice? Few potential clients seek lawyers that eat dozens of pounds of salmon each day and sleep five to seven months per year. Today, there is a greater emphasis on civility in the law, so fewer lawyers boast aggressive animal nicknames such as "Pitbull" and "T-Rex." However, animal nicknames remain possible. You just must put more thought into what type of animal truly represents you. Given the eclectic nature of my practice, I am considering adopting "the Platypus." Doing litigation and transactional work, I am a legal monotreme.[8]
To paraphrase Johnny Cash, before using an animal reference, you must "Understand Your Animal."9
2. Recognize that Judges Dislike Foraging Animals, Especially Ferrets
The
case law is clear that judges do not like foraging animals.
In U.S. v. Dunkel,
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