Local Terms of Art, or How Many Times Can You Kick the Cat?

May 13, 2011

When I practiced law in Wisconsin, I often heard the expression “another kick at the cat” used by lawyers and judges, generally to describe a party attempting to re-litigate or revisit an issue that had already been addressed. Recently I used that phrase with a colleague from another state, and I received a very blank look in response. She said she’d never heard this expression before. Interested, I ran a search.

Looking at all state and federal cases, I turned up more than a hundred cases talking about rhetorical kicks at cats. Of these, the vast majority come from Wisconsin courts, along with a handful from the 7th Circuit (in which Wisconsin is located) and one lonely 6th Circuit case discussing arbitration.  The earliest use of the phrase in a legal opinion seems to appear in a 1953 case, quoting a party’s brief:

Certainly an appellant cannot complain because his counsel knows less about his case than does respondent’s counsel. If a new trial is to be granted on such a basis it will afford a fertile avenue for defense attorneys who need only plead ignorance or stupidity to get another kick at the cat.  Briggs Transfer Co. v. Farmers Mut. Auto. Ins. Co., 265 Wis. 369, 373-74, 61 N.W.2d 305, 308 (1953).

Prior to 1953, case law appears to be entirely silent on the subject of kicking cats, except cases in New York (Baxter v. Mohr, 52 Misc. 558, 102 N.Y.S. 844 (NY Sup. Ct. 1907)) and Indiana (Bicknese v. Brandl, 46 Ind.App. 269, 91 N.E. 41 (Ind. App. 1910)) which are, unfortunately, referring to actual cats.

Here are a few more uses of the expression:

… the court concluded that Samp could not “expect a third, fourth or fifth  kick at the cat” in opportunities to make a redemption payment.  Harbor Credit Union v. Samp, 2011 WI App 40.

… defendants would not be entitled to another kick at the cat under the guise of an affirmative defense. Silicon Graphics, Inc. v. ATI Technologies, Inc., 06-CV-611-BBC, 2011 WL 322664 (W.D. Wis. Jan. 31, 2011).

To not apply issue preclusion in this case would encourage parties in Nambe’s position to sit on their hands and wait to see what happens instead of opposing summary judgment on an issue crucial to their claims. Then, if other parties who put forth the effort to oppose fail, the waiting parties are allowed a second kick at the cat. Precision Erecting, Inc. v. M & I Marshall & Ilsley Bank, 224 Wis. 2d 288, 309, 592 N.W.2d 5, 14 (Wis. Ct. App. 1998).

… appellant contends that remand for retrial would here give the respondent ‘more than one kick at the cat.’12 We do  not see this respondent as having had the first kick, and see the lack of opportunity as not caused by the respondent alone. Merco Distrib. Corp. v. O & R Engines, Inc., 71 Wis. 2d 792, 798, 239 N.W.2d 97, 100-01 (1976).

An article, written by a distinguished trial judge in this state, closed with these two Latin quotations:

    ‘Nemo debet bis vexari pro eadam causa.’

    ‘Interest reipublicae ut sit finis litium.’

As the author of that article correctly concluded, these axioms, ‘freely translated,‘ give the underlying principle of res adjudicata: “No one is entitled to more than one kick at the cat.” Applied here, this means that the feline in this case-the 1966 judgment for specific performance of an option contract-is beyond reach of further kicks by either party.  Conway v. Div. of Conservation, Dept. of Natural Res., 50 Wis. 2d 152, 160-61, 183 N.W.2d 77, 81 (1971).

(Quick plug: I ran this search on WestlawNext using the Advanced Search feature to search for kick! /3 cat.  Then I used the Copy with Reference feature to pull all the above quotes, which saved me a lot of typing time.)