Don't be an Ostrich: Justice Posner Opines on Appellate Advocacy in the 7th Circuit Court of Appeals
Monica del Carmen Gonzalez-Servin v. Ford Motor Company et al. was a consolidated appeal from two decisions concerning forum non conveniens motions. In No. 11-1665, the appellants failed to cite a decision called Abad in their opening brief or their reply brief, even though the defendants repeatedly and accurately stated that it was nearly identical to the case at bar. In No. 08-2792, the appellants discussed Abad "only a little" and failed to discuss another authority directly on point.
Writing for a unanimous Court, Justice Posner chastized the appellants for "ostrich advocacy":
"When there is an 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. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. 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 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."
If the words weren't enough, Justice Posner offered up the following illustrations, which were placed directly in the opinion:
So don't be an ostrich. Distinguish adverse authorities with your head high (and firmly out of the sand).
U.S. Seventh Circuit Court of Appeals Docket Numbers: 11-1665, 08-2792
Date of Decision: November 23, 2011
forum non conveniens ostrich advocacy United States Court of Appeal