Appellate attorneys may take it as a bad sign when their advocacy is described as “ostrich-like” by an appellate court and even worse when the court’s opinion uses an unflattering image like the one here to illustrate the point.
In a terse six-page opinion, the Seventh Circuit’s Chief Judge Richard Posner criticized counsel for failing to address precedent directly applicable to the forum non conveiens issue presented in two appeals (addressed simultaneously by the Court). Chief Judge Posner wrote:
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. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. . . . Whatever the reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper model for an appellate advocate.
It is indeed difficult to imagine the reasoning underlying the strategy of ignoring applicable authority, whether relied upon by an opponent or not. The Rules of Professional Conduct prohibit such a strategy, but beyond that, it is poor advocacy. It may require thought and creativity, but in many instances plausible, if not meritorious, reasons can be articulated as to why existing precedent does not apply, or if all else fails, was wrongly decided.
The decision is in Monica Del Carmen Gonzalez-Servin, et al. v. Ford Motor Company, No. 11-1665, and was issued on November 23, 2011.