Legal Definitions - red herring

The term red herring has two distinct meanings in a legal context:

• 1. An Irrelevant Distraction: In its primary legal and rhetorical sense, a red herring refers to a legal or factual issue that is irrelevant to the main points of a case or argument, but is introduced to divert attention, mislead, or confuse. It's a tactic to sidetrack discussions from the core issues at hand.

  • Example A: Courtroom Argument
    During a trial for embezzlement, the defense attorney repeatedly questioned a witness about the victim's personal spending habits and lavish lifestyle, implying that the victim might not have noticed money missing or was somehow deserving of the loss. However, there was no evidence linking the victim's spending to the alleged embezzlement. The judge eventually intervened, ruling these questions a red herring because they were irrelevant to whether the defendant committed the crime and served only to distract the jury.

  • Example B: Contract Negotiation
    In a complex negotiation over a business acquisition, one party suddenly brought up a minor, unresolved dispute from a completely unrelated past deal, spending significant time discussing its trivial details. This tactic was a red herring, designed to shift focus away from a critical clause in the current acquisition agreement that the other party was pushing to modify.

  • Example C: Public Policy Debate
    During a city council meeting discussing a proposed zoning change for a new affordable housing development, an opponent of the project spent their entire allotted time criticizing the personal character and political affiliations of the council members who supported the proposal, rather than addressing the merits or drawbacks of the zoning change itself. This was a clear use of a red herring to avoid debating the actual policy issue.

• 2. Preliminary Offering Plan (Real Estate): In the context of real estate development, particularly when converting rental apartment buildings into cooperatives or condominiums, a red herring refers to the initial, draft version of an offering plan that a developer submits to a governmental regulatory body (such as a state's Department of Law). This preliminary document is for review and approval before the developer can legally advertise, offer, or sell any units. It's often called a "red herring" because it typically includes a disclaimer printed in red ink, indicating that it is not a final offer and is subject to change.

  • Example A: Developer Submission
    A real estate developer planning to convert a large rental building in New York City into condominiums first prepared and submitted a comprehensive red herring to the New York State Attorney General's office. This document detailed the proposed terms of sale, financial projections, building condition, and tenant rights, initiating the formal review process required before any units could be marketed or sold.

  • Example B: Regulatory Review Process
    After receiving the red herring from a sponsor converting an apartment building, the Department of Law conducted a thorough review. They identified several areas where the plan lacked sufficient detail regarding the building's structural integrity and issued a "deficiency letter." The sponsor then had to revise the red herring to address these deficiencies before the plan could be accepted for filing.

  • Example C: Tenant Notification
    When a landlord decided to convert their rental building into a co-op, they were legally required to provide all existing tenants with a copy of the red herring. This allowed tenants to review the preliminary offering plan and understand their rights and options during the conversion process, even though no binding offers or sales could take place at this early stage.