ILNews

7th Circuit cautions against 'ostrich-like' advocacy

Back to TopCommentsE-mailPrintBookmark and Share

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.”



 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hmmmmm ..... How does the good doctor's spells work on tyrants and unelected bureacrats with nearly unchecked power employing in closed hearings employing ad hoc procedures? Just askin'. ... Happy independence day to any and all out there who are "free" ... Unlike me.

  2. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

ADVERTISEMENT