A Lesson in Appellate Advocacy

Here’s the scenario: you’re retained to argue an appeal in the tough U.S. Court of Appeals for the 7th Circuit; there’s a precedent from that very court that appears clearly to stand in your way; you’re about to prepare your brief for filing. What do you do about the obstinate precedential obstacle?

I’d be willing to be that if you took a poll of appellate advocates, something on the order of 99.4 percent of them would say that, whatever you do, you don’t just ignore it. But that’s exactly what counsel did in Gonzalez-Servin, et al. v. Ford Motor Company, et al. (No. 11-1665, Decided November 23, 2011 [PDF]), decided together with another similar case. And, as luck would have it, the case drew Judge Posner, noted, among other things, for his willingness to speak out plainly about what he sees as mistakes.

And speak he did.

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. . . .

[M]aybe 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.

Whereupon he included in the opinion a pair of photographs that graphically reinforced his point — and, I’d say, revealed what in his view was the most obvious feature of the counsel involved.

Of course, Posner being Posner, hastened to inform us that ostriches don’t really stick their heads in the sand. Then he singled out the counsel by name. Ouch.

[Hat tip: Joel Kohm]

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Comments

  1. Nice.

    Let’s see how

    “[M]aybe 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.”

    works if it’s modified as needed and applied to appellate courts, themselves.

    [M]aybe divisions of appellate courts think that if they ignore their own precedents they won’t get called on this by their colleagues, especially if a judge on the appellate panel was part of the panel deciding the precedents; or there’s nobody outside the court (who might matter) to to complain because it’s an appellate court of final resort; or it’s an inferior appellate court but the panel has good reason to believe the final appellate court won’t grant leave to appeal.Whatever the reason, such judicial conduct unacceptable. The ostrich is a noble animal, but it is not a proper model for the appellate judge.

    That seems to make sense, no?

    On the other hand, if one is an august body of last resort ignoring its own recent precedents (for example, the Supreme Court of Canada – this has been known to happen (g)) one apparently gets to claim that it’s not necessary to refer to the prior cases because the principles one is about to outline “emerge” from the cases. Who (that matters) is in a position to gainsay?

    Or, if one is judge of an inferior appellate court which should be paying attention to what is said about the exact same point in the co-ordinate appellate courts of the other provinces, but seeming isn’t. Well, that’s not a proper model for the appellate judge, either, even if those other cases aren’t binding but are only persuasive.

    Well … “Outis” might be, but those of us with with a wasted (?) classical education might recall where that got Polyphemus.

    And I suppose some law professors (and those occasionally masquerading as academic lawyers) might be heard to complain, especially if it gets them into print.

    What’s sauce for the goose ISN’T, apparently, etc.

    Go figure.

    Kidding aside, I suspect that the lawyer challenged could find examples where what he suggested the lawyer might have been attempting was successful. In the U.S. Federal appellate courts, and maybe all of the state appellate courts, they have a procedure (as I understand it) by which a judge of the appellate court who wasn’t on the hearing panel can request the full court reconsider the decision.

    DC

  2. I can’t open the link. But Posner has dealt with the ostrich myth before, in a case involving Conrad Black:

    http://www.ca7.uscourts.gov/tmp/DZ0PUBDN.pdf

    (It’s at page 12)

  3. Thanks for the info Evan. After reading pg. 12 and the “ostrich head-in-the-sand myth” referenced in the Conrad Black case, I do not believe this form of ridiule of a lawyer and/or a judge (since everyone is capable of mistakes) has a place in a judgement. Furthermore, the pictures are insulting and demeaning and do not accurately depict the behaviour of an ostrich in protecting her young. I am deeply disappointed in Judge Posner’s conduct and hope his pictorial representations will be dealt with by an independent judicial counsel. As for the noble ostrich, I do hope the animal rights activists will act to legally correct this undeserved, defaming characterization which doesn’t belong in the law or anywhere else for that matter.

    As for the lawyer, being ignorant is not a valid excuse under the law.

  4. Sorry the link didn’t work: the court has a curious linking structure that produces temporary links that seem to fail for others. I think I’ve fixed the problem, but let me know if this link still doesn’t do the job.