What do ostriches and appellate advocates have in common? If you practice in the Seventh Circuit Court of Appeals, you had better hope the answer is “nothing.” Judge Posner, along with Judge Easterbrook and Judge Tinder, recently took it upon themselves to explain in a published opinion why the “ostrich is a noble animal, but not a proper model for an appellate advocate.”
The advocacy tactic that precipitated this opinion: ignoring adverse controlling precedent. The scenario goes something like this. The appellant’s brief fails to mention a controlling case (perhaps they missed it). The appellee steps up to the plate and appears to hit a home run by relying on an opinion that seems to be directly on point. The appellant files a reply brief, but fails to provide any analysis, or even mention, the adverse case cited in the appellee’s brief.
While you could create your own mental picture of what judges think about this style of appellate advocacy, Judge Posner’s opinion actually provides the pictures for you. (Yes, these pictures are actually part of the opinion).
If you are better with words, than pictures, Judge Posner’s pen is as sharp as ever.
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. . . . 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. The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”
Bottom line: Regardless of what appellate court you are practicing before, if there is adverse authority, acknowledge it—even if your opponent has already brought the opinion to the Court’s attention.
And thanks to my friend John Bowers for bring this “fun” opinion to my attention.