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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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