Wednesday, November 23, 2011

Don't be an ostrich - UPDATED

Tomorrow is Turkey Day, but today is Ostrich Day, as Judge Posner and the 7th Circuit issue the first appellate decision I've seen with color illustrations for emphasis.

(And some good appellate advice on acknowledging adverse authority.)


... Updated after I found one of the op's pix online. Actually, I suspect that many lawyers wish to do just that during oral argument in the 7th Circuit.

... Philip Thomas notes the opinion and links to one of the chastised attorneys, who does not concur with the court's evaluation of his advocacy:
The case Posner said was controlling, Abad v. Bayer Corp., dealt with a product liability case out of Argentina.

“Not only is it on a different continent, the record we presented had no fewer than ten cases dismissed by Mexican courts proving that Mexico does not have any jurisdiction over foreign defendants,” McKeand said.
Well, let's see what the 7th Circuit thought:
In their response the defendants cite Abad repeatedly and state accurately that its circumstances were “nearly identical” to those of the present case. Yet in their reply brief the appellants still don’t mention Abad - let alone try to distinguish it - and we take this to be an implicit concession that the circumstances of that case are indeed “nearly identical” to those of the present case.
Ah, so the case was so entirely distinguishable that counsel ... didn't mention it?

I've seen this vice before: an attorney responds to what he thinks is a stupid argument by simply ignoring it. NEVER DO THIS. If the opponent's argument rests on John Adams' being the first president of the United States, point out the error (and, if possible, find a case to cite). If the opponent contends that 2 + 2 = 5, point out the error (and, if possible, find a case to cite).


  1. Just read that & almost died laughing.

  2. One of my cases had a photograph of an exhibit within a MS. Court of Appeals opinion. I like to think it was because I put it in the brief, but, it certainly wasn't as cool as this.

  3. I'll be curious to see the Federal Reporter version.

  4. 41 So.3d 729 is my case. Interesting to see how it looks in westlaw.