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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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