Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition?
This tweet yielded some fun responses, like “Plaintiff is on a snipe hunt” and “Plaintiff is running crab traps in a frog pond.”
Let me add my humble suggestion: “Plaintiff has very nearly caught a woozle.”
When I tweeted this line, I got some live feedback suggesting that it was too obscure. Wrong. Anyone who finds this obscure has no soul. Just consider what happens when we drop the line Gorsuch style:
Plaintiff has very nearly caught a woozle. That is to say, his own herculean efforts in discovery have convinced him of the rightness of his theory despite all evidence to the contrary. In A.A. Milne’s 1926 classic Winnie the Pooh, Pooh and Piglet track some footsteps through the snow around a spinney of trees. They suspect that they may be tracking a mythical beastie known as a “woozle.” As the hunters continue around the spinney, the number of tracks increase. They surmise that the woozles are gathering may have been joined by a wizzle. They also begin to wonder if their prey may have hostile intent, and Piglet grows worried enough to abandon the search. Just then they spot Pooh’s friend, Christopher Robin, sitting a tree. Christopher Robin points out that Pooh and Piglet have been walking in circles around the trees. Pooh belatedly realizes what has been going on: He and Piglet were just following their own tracks. “I have been Foolish and Deluded,” said he, “and I am a Bear of No Brain at All.” Indeed, no less an authority than Wikipedia recognizes “[t]he Woozle effect, also known as evidence by citation, or a woozle, [which] occurs when frequent citation of previous publications that lack evidence misleads individuals, groups, and the public into thinking or believing there is evidence, and nonfacts become urban myths and factoids.” So too here, the Plaintiff’s own spirited pursuit itself–not any underlying facts–has satisfied him of the truth of his position, blinding him to the obvious countervailing proof.
“Woozle hunt” is a 100% valid alternative to “fishing expedition.” Fight me.