“I really didn’t say everything I said.” – Yogi Berra.  While such may be true, what this poet/philosopher of the baseball diamond did say is quoted widely by courts nationwide.

 

Federal courts have quoted Yogi at least 81 times.  The earliest citation to Yogi is found in Keasler v. United States, 585 F.Supp. 825 (E.D.Ark. 1984).  Awarding attorney’s fees to plaintiffs in a successful action against the United States to obtain refund of excise taxes paid, the Court rejected the government’s contention that plaintiff’s motion for attorney’s fees was untimely.  The court held that the applicable statute’s thirty day deadline for filing a trial-level request for attorney’s fees did not start until the entire litigation was over.  District Court Judge Garnett Eisele wrote, “In short, under the section 2412 limitation period, the immortal words of Yogi Berra seem appropos — ‘The game isn't over till it's over.’”

The earliest State appellate court to quote Yogi was Florida.  In Benestad v. Benestad, 459 So.2d 464 (Fla.App. 4 Dist. 1984), the Court considered the issue of when a final judgment in a divorce action was truly final.  Using the more popular (and likely more correct) variant of the same Yogi phrase, the Court wrote – “It ain’t over till it’s over.”

While the phrase “It ain’t over till it’s over” may be the law’s earliest Yogi citation, it is not the most popular.  That distinction belongs to another phrase.

According to baseball lore, after watching Mickey Mantle and Roger Maris hit back-to-back homers repeatedly one season, Yogi said, “It’s deja vu all over again.”  This “Yogi-ism” is the phrase most frequently cited by judges.  It is applied to all types of cases and laws.

The earliest use of the phrase in appellate opinions appears to be Parsons v. Parsons, 490 N.W.2d 733 (S.D. 1992).  There, the phrase was cited in the dissenting opinion of an appeal challenging an alimony award.  In federal appellate courts, a dissenting judge in the Ninth Circuit was the first to use this Yogi saying.  In Fetterly v. Paskett, 15 F.3d 1472 (9th Cir. 1994), frustrated that the majority was ignoring established law governing habeas corpus petitions in denying a petition for a rehearing en banc, Circuit Judge Alex Kolinsky wrote, “As Yogi Berra is said to have said, it's deja vu all over again.”

Maryland courts treasure this pearl of Yogi wisdom, too.  In Pair v. State, 202 Md. App. 617 (2011), Judge Charles E. Moylan, Jr. employed the phrase while discussing the criminal law governing merger and double jeopardy.  Judge Roger Titus of the U.S. District Court for the District of Maryland likes the phrase, too, and has used it on three occasions – once in Reaching Hearts Int’l, Inc. v. Prince George’s County (07/22/2011 Memo. Op.) and twice while considering the case of Schafler v. Euro Motor Cars. See 02/23/2009 Memo. Op. and Order and 02/05/2009 Memo. Op.

“You can observe a lot by watching,” Yogi once said.  And, in the law, it seems you can learn a lot by listening to Yogi.