If a picture speaks a thousand words then Judge Posner certainly makes his point clear in a recently published opinion. Published November 23, 2011, the opinion consolidates appeals in two product liability cases for grants of forum non conveniens in multidistrict litigation. In the first sentence, he begins by indicating the court’s concerns about appellate advocacy in the two cases.
The appellant’s attorney (a practitioner from Houston, TX) was criticized for ignoring precedent and it was done quite creatively. Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate”. He then includes a picture of an ostrich with its head in the sand followed by another one of a man in a suit (presumably a lawyer) with his head in the sand. The lesson (other than that ostriches don't really bury their heads in the sand)? It is right there in the opinion: “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.”
Read the whole opinion here
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