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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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