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]