Like most people, I am not a horse. For this reason, I’ve always hated the expression “one bite at the apple” in legal writing. For those who didn’t spend three of their prime years trying to memorize the rule against perpetuities and stress-eating ice cream for breakfast, the “one bite at the apple” is a phrase used to indicate that a party is attempting to re-litigate an issue that has already been decided. As a general rule, once a court has ruled on a matter, its ruling is binding on the parties–you don’t get to keep re-raising the issue just because you don’t like the judge’s decision.
I’ve always found the expression somewhat maddening, because it takes me way more than one bite to eat an apple. (In a series of rigorous experiments I conducted while drafting this post, I learned that it takes me roughly sixteen bites to get through a standard-sized Granny Smith.) It would be a much better metaphor if it used a smaller fruit–something you truly only get one bite at. “One bite at the blueberry” has a nice ring to it, I think.
This week, I’ve been reading Lawtalk: The Unknown Stories Behind Familiar Legal Expressions. To my delight, the authors have a section on what they refer to as the “one-bite rule.” Here’s what they have to say about it:
[U]ntil the 1940s both British and American lawyers regularly said “one bite at the cherry.” In the twentieth century, however, cherry had taken on an additional meaning in the United States as a slang term for the hymen or for a virgin. As [Bryan] Garner notes, “one bite at the cherry may well be the only legal idiom that has changed because its users felt embarrassment over a new-found double entendre.” Unfortunately, the substitution takes an image that makes sense (a cherry is normally consumed in one bite, so you can’t have another bite) and replaces it with one that does not. Usually you get lots of bites at an apple!
Right on! The authors go on to explain that after the expression shifted from “one bite at the cherry” to “one bite at the apple,” some judges began to associate the one-bite rule with the biblical image of the forbidden fruit. To these judges, a party that had taken a bite at the apple (had already litigated an issue) was no longer “innocent,” and thus could not be allowed to take a second bite.
The Lawtalk passage got me interested in the historical usage of these phrases, so I did a little research of my own. My findings basically corresponded with the Lawtalk authors’: the first use of “two bites at the cherry” appears to have been in Howerton v. Wimbish, an 1856 case in which the Supreme Court of North Carolina held that a man could not maintain a lawsuit over funds that both he and his wife had an interest in without adding her as a plaintiff. The court held that the wife was an essential party, because her arguments for why she had an interest in the money were the same as her husband’s. It would waste judicial resources to give the couple “two bites at the cherry” when both of their interests in the disputed funds could be resolved in the same lawsuit.
The first use of “two bites at the apple” in a judicial opinion did not come until the 1922 case of McCoy v. Tolar, in which the Supreme Court of Mississippi held that a party was not entitled to a new trial just because they had failed to offer available proof at the first trial. “A litigant who fails to make essential proof” despite the evidence being available “shall not have ‘two bites at the apple,'” the court said.
Interestingly, and somewhat surprisingly, “two bites at the cherry” remains in use to this day. Two district courts quoted the phrase approvingly in 2020, and there have been a smattering of opinions over the last several decades that have used it. However, while “two bites at the cherry” remains in occasional use, its number of appearances in judicial opinions is dwarfed by that of “two bites at the apple.” In the last century, “two bites at the cherry” has appeared in approximately 200 opinions; “two bites at the apple” has appeared in roughly 10,000.
I also found an interesting literary reference that the Lawtalk authors did not mention. While many judges have connected “two bites at the apple” with the forbidden fruit, one connected it with Greek mythology. In Angel v. Bullington (later quoted approvingly in O’Shea v. Chrysler Corp.), Justice Wiley Blount Rutledge wrote that unless a litigant is given “a real bite at the apple of discord”–in other words, unless he has been allowed to fully argue his position–he should not be denied the opportunity to fully state his case at a later date. (Interestingly, Justice Rutledge used “one bite at the cherry” several paragraphs earlier in what ought to be known as his Fruit Salad Opinion.)
“The apple of discord” is a reference to the golden apple in The Judgment of Paris. In that myth, the Greek gods were gathered at Mt. Olympus for a wedding–all except for Eris, the goddess of mischief and discord, who was not invited because nobody wanted the wedding to be interrupted by her mischief. To get revenge, she inscribed “to the fairest” on a golden apple and tossed it among three goddesses–Hera, Athena, and Aphrodite. The goddesses fought over who the apple was intended for, and the decision ultimately went to Paris of Troy. Aphrodite bribed him into selecting her by offering him Helen of Sparta (Hera and Athena offered bribes as well). He accepted Aphrodite’s bribe, Aphrodite helped him kidnap Helen, and the kidnapping ultimately led to the Trojan war.
Given this background, it’s a somewhat strange analogy for Justice Rutledge to have employed. Unlike a bite at a regular apple (or cherry) a bite at the apple of discord is not a good thing; that apple was designed to cause strife. Even the process of obtaining the golden apple was corrupt; the three goddesses all tried to bribe the decision-maker. Perhaps Justice Rutledge, despite believing that the plaintiff ought to be given his day in court, was trying to signal what he thought of the merits of the underlying suit.
Whatever Justice Rutledge’s intent, it is clear that “one bite at the apple,” no matter how maddeningly nonsensical a phrase it may be, is here to stay in judicial writing.
Chauvinisms 