In law practice, as in life, we run across a number of clichés . We highlight these commonplace sayings in this new semi-regular feature. Today, Todd Key discusses “splitting the baby.”

The Biblical tale arises from Solomon’s attempt to distinguish between two women who both claimed to be the mother of an infant. Solomon’s order to split the baby was a personality test to differentiate between the real mother and an imposter. According to the tale, the imposter mother was completely ok with taking a literal sword to a literal baby, and receiving half of the literal baby corpse, presumably with literal baby entrails swaying in the breeze.  And Solomon, with his wisdom, was able to deduce that any person who would be ok with this solution was probably not the biological mother. To his credit, he was probably right, but I question whether this is really an example of “wisdom,” and I also worry that the parable uses an improbably psychopathic and murderous woman to drive its point home.

In the legal world, we bastardize this parable and use “split the baby” as shorthand for splitting the difference.  It’s a bastardization of a parable about infanticide.  I use it all the time without thinking about it, but I probably shouldn’t.

Here is a discussion of the phrase from a mediator’s perspective. 

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