November 24, 2011
Happy Thanksgiving! Today, we give thanks for Judge Posner and his wit. Yesterday, the Seventh Circuit issued an opinion in two consolidated appeals in an opinion captioned
Del Carmen Gonzalez-Servin v. Ford Motor Co., ___ F.3d ___ (7th Cir. 2011), Cause No. 11-1665. The cases were consolidated because the Court found that they "raise concerns about appellate advocacy."
less..
The Court's issue was the appellants' failure to squarely address recently decided precedent. Between the time that the appellant's brief was filed and the appellee's brief was filed, new, controlling precedent had been issued. The appellees cited this precedent (as it was in their favor), but the appellants did not deal with this precedent in a straightforward manner in their reply briefs. In one of the cases, the appellant "unpersuasively" tried to distinguish the recent cases; in the other the appellant did not mention them at all. The Court was not impressed.
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. We don't know the thinking that led the appellants' counsel in these two cases to do that. ... There are likely to be additional such appeals; 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.
The Court then decided to use some visual aids and placed a couple of full-color photos into the opinion, one of an ostrich with its head in the sand and another of a man in a suit in the same pose.
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The "ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless."
Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting
Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).
Lessons:
- Make sure to address recently decided, controlling cases or Judge Posner will make fun of you.
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