It's a twista!  It's a twista!

Some signs we think of as presaging a storm:  Dusky ponderous clouds that loom on a horizon.  A swirling sudden reversal of wind direction.  The plummeting barometer.  And that poetical classic, red sky at morning/sailor take warning.

Storm warnings, all.

But what does "storm warnings" mean in the legal context?  Mercy, it does seem imprecise.  And the law does not like imprecision.

Yet the allure of metaphor to enliven the dullness of legal prose has proven well-nigh irresistible.  Just so in the case of storm warnings.  And what duller subject can you think of than the question of when, precisely, a statute of limitations commences its run its race towards dealing oblivion to a legal claim?

The Second Circuit today wrassled with that very topic yesterday. 

The case involved allegations that The Hartford, an insurance and financial services giant, defrauded investors by touting to the market the genius of The Hartford's business model when in fact its sucess depended on paying "kickbacks" to insurance brokers.  The Hartford defended on several grounds, including that the plaintiff sued too late — specifically, more than two years after "storm warnings" about The Hartford's business model should have put the plaintiff on notice of the kickback backstop. 

The district court held that the plaintiff could have, in the exercise of reasonable diligence, discovered the storm warnings; that the storm warnings would have put him on notice of allegedly fraudulent doings at The Hartford; and that therefore his failure to file suit until more than two years after he should have learned of the storm warnings barred him from court.

The Second Circuit vacated the dismissal.  Review of its "storm warnings" precedents (since adopting the doctrine in 1993) alone spanned 17 paragraphs.  Blawgletter confesses that the factual exposition of the cases – a feature that seems common to Second Circuit opinions – lent concrete definition to the metaphor.

The plaintiff won the appeal because the publicly available information — the storm warnings — either failed to point to The Hartford as a participant in the practice of paying of kickbacks to brokers or lacked sufficient notoriety.  An article in The New York Times, for example, never mentioned The Hartford; industry newsletters referred to The Hartford but didn't tie it to kickbacks; and pleadings in an obscure lawsuit in California state court drew no journalistic interest or publicity whatsoever.  Staehr v. The Hartford Fin. Svcs. Group, Inc., No. 06-3877-cv (2d Cir. Nov. 17, 2008).

What have we learned?  That judges should shun metaphor because of its imprecision and therefore potential to lead to wrong decisions?

We must say no.  We like judicial metaphors.  They add style, provoke thought, promote understanding, and aid persuasion.  Haig Bosmajian even wrote a book about them — Metaphor and Reason in Judicial Opinions (1992).

No, the vice lies not in colorful, memorable rhetorical flourishes but in using them as a crutch for the hard lawyerly work of applying law to facts.  Rigorously.

 Our feed never yells fire! in a crowded theatre.  Except when necessary.