Appellate Practice

Posner Opinion Includes Ostrich Photo to Portray Lawyers Who Ignore Precedent

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Updated: A federal appeals court is criticizing lawyers who ignore or downplay precedent in an opinion that includes two photos to illustrate:


One picture is of an ostrich and the other is of a man dressed in a suit with his head buried in the sand.

The opinion by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals takes aim at the appeals filed in two separate cases for ignoring precedent, or for discussing the relevant case only a little.

“The ostrich is a noble animal, but not a proper model for an appellate advocate,” Posner wrote. How Appealing links to the opinion (PDF) and to a story by Thomson Reuters News & Insight.

The two appeals sought to overturn a judge’s rulings sending one case to courts in Mexico and the other to courts in Israeli under the doctrine of forum non conveniens. One involved a suit alleging an accident in Mexico was caused by defective tires. The other involved a suit claiming Israeli citizens were infected in Israel with contaminated blood products made for hemophiliacs.

In the tire case, the plaintiffs’ lawyer never cited relevant 7th Circuit precedent in the opening or reply brief, though the defendants cited the prior case and said the circumstances were nearly identical, the 7th Circuit opinion says. In the blood contamination case, the plaintiffs’ lawyer discussed one precedent “a little,” and another precedent “not at all,” the opinion adds.

“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,” Posner wrote. “Whatever the reason, such advocacy is unacceptable.”

The opinion names the lawyer in the tire case, David S. “Mac” McKeand. He did not return a call placed to his law firm for reaction over the weekend, but he commented to the Wall Street Journal Law Blog in an email.

McKeand said Mexican courts don’t have jurisdiction over foreign corporations, and he should be able to litigate in the United States because Mexico isn’t an available forum. The precedent cited by Posner, Abad v. Bayer Corp., involved a product liability case in Argentina, he said.

“Not only is it on a different continent, the record we presented had no fewer than 10 cases dismissed by Mexican courts proving that Mexico does not have any jurisdiction over foreign defendants,” McKeand told the Law Blog.“In light of all the facts, I can only wonder who really is the ostrich.”

Updated Nov. 28 to include information from the Wall Street Journal Law Blog.

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