Patterico's Pontifications


The Pictures Bring This One to Life

Filed under: General — Aaron Worthing @ 12:04 pm

[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]

Update: Egg on my face, as I named the wrong judge as the author.  Thanks to rfy for pointing that out.  But I could legitimately say literally the same exact things about Posner as Easterbrook, so its all good.

Update (II): For some reason the link broke.  Fixed now, but if it happens again, go to the Volokh link.  Its worth it.

Via Volokh we get to witness a pretty thorough spanking of a pair of lawyers by Judge Posner Easterbrook of the Seventh Circuit (who is one of the giants of the legal profession generally).  You see, lawyers are required to inform the court as a matter of ethics of any adverse precedent, and in practice there are several things you can do, but the one thing you absolutely shouldn’t do is just ignore the precedent.  Which is what happened in Gonzalez-Servin v. Ford,

In Pastor v. Bridgestone/Firestone North American Tire, LLC (decided with and under the name Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009)), we affirmed Judge Barker’s transfer of a similar case to the courts of Argentina under the doctrine of forum non conveniens. The appellants in No. 11-1665 (the plaintiffs in the district court ), the accident case, do not cite Abad in their opening brief, though the district court’s decision in their case was issued in 2011—long after Abad. 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—le t 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…

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 . But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridges tone/Fire stone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe 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.

And he goes on, and it gets pretty ugly for the counsel involved. But bluntly, nothing really captures the fun of reading it and seeing the pictures that the court chose to attach to the opinion. So please, just go there and read the whole thing.  It’s only 6 pages, and there are pictures.  Glorious, hilarious pictures that must have made the lawyers involved sink in their chairs as they saw them.

Also, let’s give bonus points to Easterbrook Posner for knowing that ostriches didn’t really bury their heads in the sand, even if it is an evocative metaphor.

[Posted and authored by Aaron Worthing.]

20 Responses to “The Pictures Bring This One to Life”

  1. Made my day – but Posner is the author, not Easterbrook.

    rfy (0f1c61)

  2. rfy


    thanks, corrected.

    Aaron Worthing (e7d72e)

  3. sheesh.

    i can possibly understand not mentioning the case in the appeal. Seems like you ought to know about a controlling precedent, but mistakes happen.

    ignoring the case in the reply brief even though the response relied on it extensively? that seems flat out incompetent.

    aphrael (807c84)

  4. also, link no longer works.

    aphrael (807c84)

  5. Here’s an alternate link that still works, at least for now.

    DRJ (a83b8b)

  6. Linky no worky… ah, thanks DRJ.

    I wonder if the judges secured copyright for those photos?

    carlitos (49ef9f)

  7. The Volokh link works.
    Pics are worth the wait. No peeking!

    Viktor (c98e24)

  8. By which I meant to say that the link to the decision at the Volokh site works fine.

    Viktor (c98e24)

  9. Has anyone ever seen Richard Posner with Gilbert Gottfried?

    I’m just saying.

    Mitch (341ca0)

  10. The Seventh Circuit has something of a reputation for not suffering fools gladly, and this is not the first of their opinions to bluntly convey the judges’ disappointment with the caliber of the appellate advocates appearing before them.

    Including photographs at all — but especially photographs that are extraneous to the written appellate record — is extraordinary, however. And the choice of these two photos in particular will multiply many times over the amount of attention that this opinion would have received were it limited to the same stern text without any pictures. Judge Posner obviously wanted not just a (metaphorical) burning at the stake, but a large audience for it, and he’ll get it.

    Although signed by Judge Posner, the opinion is for a panel that includes the Chief Judge as well, so the judicial official who, by position, might be most likely to frown upon such levity is, instead, on board as having concurred in Judge Posner’s opinion without reservation. So there will be no blow-back.

    Beldar (65378a)

  11. The humor in this is obvious to lawyer and layman alike, I’m confident.

    It may not be obvious to nonlawyers just how deeply mortifying this opinion is, and was intended to be, and what an huge impact it may have upon these two lawyers’ careers. They’re likely to be fired — by their firms/partners, and by their clients — and it will be hard for them to find untainted replacements. They will face “career-changing” consequences, perhaps bordering on “career-ending” if their practices are heavily concentrated in federal court.

    But, if Judge Posner’s opinion is accurate in its factual and procedural description, they should indeed face exactly such consequences.

    Beldar (65378a)

  12. Well, that was well worth a look (and the link above to the decision is still broken, but is working via Volokh).
    It’s good to see that Judges can still maintain a sense of humor when they are not suffering fools gladly.
    Perhaps these lawyers (?) can find time-consuming activity to participate in – if not actual paid work – in one of the various Occupy encampments?

    Judge Posner rates them a #Fail!

    AD-RtR/OS! (562140)

  13. I rate them a fail too.

    DohBiden (ef98f0)

  14. reserve a challenge to it for a petition for certiorari

    What does this mean? Reserve a challenge to it for a Supreme Court appeal?

    But if it is dispositive, or the most important , not to ask the lower court to overrule it would be giving up any hope on that level.

    Sammy Finkelman (2d0c86)

  15. @ 7:47
    Emails were stolen from the “United Arab Emirates”?

    AD-RtR/OS! (562140)

  16. That opinion needed re-writing.

    I don’t think Judge Posner thought this thing through very carefully.

    The decision gave what it thought might be the reason this was done: A different panel would get the case. But then it also claimed it fooled nobody.

    Also, he doesn’t seem to make clear what is unacceptable, clearly intended as a worse term, and what is merely unprofessional. I don’t think these are well-defined terms of art. Are they?

    Now let’s see:

    The court said it was unacceptable to attempt to fool the judge, and also to do this for some other reason, like incompetence. (it seems to have wanted to say attempting to fool the judge is unacceptable, but then has second thoughts and seems to think that carelessness or whatever is also unacceptable. in either case

    It also separately considered the possibility it was unprofessional and fooled nobody.

    I think the court was disturbed that it could fool somebody, although if Posner is the judge and has good clerks, and especially if the dispositive case is cited in the opponent’s brief, it mainly could give them a lot of extra work, since it may take some time till they discover or examine the other precedent.

    Giving them a lot of extra work, and having them waste a lot of time, I guess they call unprofessional.

    I am trying to distinguish when the court considers something unacceptable and when it considers it unprofessional

    Maybe this:

    Unprofessional is when something is low level work that doesn’t stand a chance of ultimately fooling the judge (although it may waste his time, and may fool the client into thinking he’s doing great work)

    Unacceptable, is doing this in a serious attempt to fool the judge, but also, come to think of it, even without that intent.

    All that is unprofessional is also unacceptable.

    And all that is unacceptable is also unprofessional, but some things are really, really, unacceptable.


    Sammy Finkelman (2d0c86)

  17. reserve a challenge to it for a petition for certiorari

    What does this mean? Reserve a challenge to it for a Supreme Court appeal?

    But if it is dispositive, or the most important , not to ask the lower court to overrule it would be giving up any hope on that level.

    It may be that there is no hope at that level. For instance, it may be a Supreme Court precedent that the lawyer will need to have overturned; no circuit court can do that. But if that is the idea, the lawyer still needs to acknowledge its existence.

    Milhouse (f8511c)

  18. University of East Anglia, but maybe like with the
    new Mission Impossible film, they got it right the first time.

    narciso (ef1619)

  19. Extremely unprofessional of the good judge, bordering on puerile.

    Maximus (22397b)

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