A Fishing Expedition

The expression “fishing expedition” is a very old legal term, certainly dating back to an era before sonar and fish finders.

In legal circles, you accuse your opponent of “engaging in a fishing expedition” when you want the judge (or public opinion) to tell your friend opposite to stop examining your witness. Conjuring up the image of a trawler steaming back and forth in murky waters with little or no idea where the fish really are, you are suggesting that your friend is conducting his examination without a clue as to what evidence is there or how to get it. You’re saying that your friend is just hoping to get lucky or extract some answers by forcing a weary witness to volunteer some answers just to end his misery.

A fishing expedition is the legal equivalent of cracking cryptography by brute force— enough computers running for enough time may eventually find a secret. But neither our courts nor our society can afford brute force examination of witnesses. Courts, judges, and counsel are costly enough, but our culture tends to impose harsh penalties against bullying and badgering of any sort. Because of this, “fishing expeditions” are seen negatively and few want to be seen by the public as engaging in one.

But this can cut both ways. Like charges of racism or misogyny, accusing someone of conducting a fishing expedition can be a convenient way to throw mud, deflect scrutiny away from the facts, or put a stick in the spokes of someone getting uncomfortably close to the truth.

There is no precise way of distinguishing between a fishing expedition and inefficient but proper examination. However, if counsel has spent considerable time without seeming to have a plan, fails to score any hits, or spends agonizing moments between questions while he ponders where to go next, a judge is likely to intervene, “Mr. Jones, where are you going with all this?” If you have some plausible answer, you’re likely going to be allowed to continue for a while, but if you’re asked the same question a second time, you’re going to be put on a very short leash, and if you’re asked it again, your time is up.

Lawyers who engage in fishing expeditions are generally inexperienced and poorly trained. There are, however, some veterans who keep the device in their bag of tricks. These guys are like NHL players who think that sharp elbows and dirty hits are all part of a day’s work— they get paid because they get some results, but nobody is proud of them.

The moral of the story for all of us (not just young lawyers) is that if you intend to get at the truth short of brute-force examination, you’d better have a good idea of what the answers are and how you’re going to get them. And this means doing your homework, and doing it well.

See video of truck hitting runaway ramp. (https://www.youtube.com/watch?v=IibhwiUoRtA)