Just Say “No Fishing”: The Lure of Metaphor
The phrase “fishing expedition” is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court’s attitude toward the issue or claim in a lawsuit.
This Article begins by tracing the development of the “fishing expedition” metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use of the metaphor have long been rejected. The drafters of the Federal Rules of Civil Procedure tried to overcome the metaphor. Nevertheless, in contemporary cases the prohibition of “fishing” is omnipresent.
In an overwhelming proportion of modern cases, it is plaintiffs who are said to be “fishing,” and the metaphor’s concentration in certain types of cases reflects and reinforces an anti-plaintiff bias. The Article concludes by suggesting that we reject the fishing metaphor It has been trite for more than two hundred years. More important, the fishing metaphor may camouflage reasoning that violates the letter or spirit of the Federal Rules of Civil Procedure.