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7th Circuit cautions against 'ostrich-like' advocacy

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Warning appellate lawyers not to ignore precedent, a 7th Circuit Court of Appeals decision today issues a short but clear message to not use “ostrich-like” tactics when briefing and arguing cases.

In case readers didn’t take notice of the written warning, the appellate panel included pictures showing an ostrich and attorney with their heads buried in the sand to illustrate the message even more clearly.

“The ostrich is a noble animal, but not a proper model for an appellate advocate,” U.S. Judge Richard Posner wrote for the unanimous panel, which also included Chief Judge Frank Easterbrook and Judge John Tinder.

Issuing a six-page decision that combines two lines of multi-district litigation in Indiana and Illinois, the panel addressed the doctrine of forum non conveniens that centers on transferring cases to different, more appropriate forums. Posner wrote that the reason for consolidating the appeals and publishing this opinion is because the same concerns are likely to arise in similar appeals.

The Indiana case is Monica Del Carmen Gonzalez-Servin, et al. v. Ford Motor Company, et al., No. 11-1665, and involves the litigation arising from the accidents caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. In that case, Judge Sarah Evans Barker from the Southern District of Indiana ordered the case be transferred to the courts in Mexico, deciding that would be an appropriate forum for the suit brought by Mexican citizens based on the death of another of its citizens after an accident in that country.

In the second case consolidated in this appeal, the court examined the suit of Yehuda Kerman et al. v. Bayer Corp., et al., No. 08-2792, that involves the manufacturers of blood products that were given to hemophiliacs but contaminated by HIV. That particular suit was brought by Israeli citizens who were infected by those products in Israel, and Judge John Grady in the Northern District of Illinois transferred the case to that country’s courts.

 The common issue that the 7th Circuit panel focused on in both cases was that the attorneys for the appealing parties didn’t cite or adequately discuss past caselaw that specifically addressed the forum transfer issue. The federal appellate court in May 2009 held in Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009) that Judge Barker had properly transferred a similar Bridgestone/Firestone case to the Argentina courts under that same doctrine.

Despite that ruling in 2009, the appellants in this case didn’t cite Abad in the opening brief filed in early 2011. After the Ford Motor Company defendants responded by citing Abad repeatedly in their response brief, the appellant again didn’t mention the precedent.

Although a similar problem exists in the Illinois case, the 7th Circuit panel found that the appellants’ opening brief in 2009 came before Abad or related caselaw and could not have applied. But the reply brief only quickly and incorrectly cited the precedent, Posner noted.

“When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it,” Posner wrote. “We don’t know the thinking that led the appellants’ counsel in these two cases to do that.”

Posner noted that many transfers came in the pair of MDL actions under the same doctrine and more appeals are likely in the future.

The judge wrote, “Maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.”

In the final two pages of the opinion, Posner cites two past 7th Circuit cases from the 1980s that referenced the “ostrich-like tactic” of pretending precedent doesn’t exist. He included a photo of an ostrich with its head in the sand, followed by another picture of an attorney doing the same, and then scolded the Texas appellate attorney in the Bridgestone/Firestone case for being “especially culpable.”



 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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