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Sometimes, the only thing that you can do is shake your head and shrug your shoulders when a judge makes a ruling that does not make any sense. There is a reason that no trial attorney with any intelligence and experience never guarantees a client a win. There are always circumstances beyond control or logic, with the two big factors being the judge and the jury. No matter how clear cut the case may seem or how certain you are in your case, there is always risk.

Today, I’m using a non-employment case to illustrate this point. In Almond Alliance Of California v. Fish And Game Commission, Third District Court of Appeals for the State of California was presented with what is seemly a very simple question: Is a bumblebee a fish?

Think I’m kidding? The Court specifically laid it out: “The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish.”

Seems like we could take this exercise to any kindergarten class in America, hold up a picture of a bumblebee, and ask the five-year-olds, “is this a fish?” I’m pretty sure that every single kid in this classroom would yell, “No!” Ask, “are you sure?” and all the kids will scream, “Yes!”

But cases are not decided by kindergarteners. This case was decided by a panel of three judges. After three different parties briefed this issue and held oral arguments on this question, what followed was – I kid you not – a 35-page analysis of statutory construction and legislative history that resulted in this holding: “Although the term fish is colloquially and commonly understood to refer to aquatic species … each of the four bumble bee species, may be listed as an endangered or threatened species under the Act” as fish.

Crazy, right? This was not even a split decision. All three judges concurred that a bumblebee is legally a fish under California law.

So, the next time anyone tells you that they are certain what a judge is going to do, ask them, “is a bumblebee a fish?”


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