California Bar Journal
CBJ - January 2012 #04.
"The ostrich is a noble animal "
The Colorado LawyerJanuary 2012"The ostrich is a noble animal "The Internet is abuzz, while blogs and online forums are filled with chatter about a recent decision from the 7th Circuit U.S. Court of Appeals authored by legal giant, Judge Richard Posner. Yes, this is the same Judge Posner who authored more than 2,500 decisions, teaches at the University of Chicago and has written many books about the economy.
Two consolidated appeals sought to overturn a trial judge's rulings, sending one case back to Mexico and another to Israel. Both involved product liability issues; both raised concerns on the bench regarding appellate advocacy. Both cases involved huge corporate defendants, who argued that the plaintiffs should have brought the claims in their own countries.
One case involved the 2004 death of a Mexican citizen in a car accident in Mexico when a tire supposedly failed. The grieving widow sued Ford Motor Company and Bridgestone/Firestone North American in federal court. The corporate defendants successfully petitioned the Indiana district court judge to throw the case out. The widow appealed.
In the other case, Israeli hemophiliacs sued the US manufactures of blood products that were allegedly contaminated with HIV. This lawsuit ended up with the same Indiana federal judge, who decided that the case should have been brought in an Israeli court.
But the facts of the two cases are not generating the whirlwind of controversy. The plaintiff's lawyer, arguing his first appeal, failed (according to Judge Posner) to cite relevant precedent, and "such advocacy is unacceptable."
You may be asking yourself "did the lawyer get cited for violating FRAP 38, or American Bar Association Rule 3.3?" Lawyers can be subject to discipline or sanction for filing a frivolous appeal. Lawyers who make mistakes can be subject to sanctions, discipline or legal malpractice actions. As lawyers, we know if we make mistakes, certain known consequences can result.
That's not what happened in this case.
In a short, five'page opinion, the lawyer became the laughing stock of the nation. Judge Posner published two pictures in his decision. One pictured an ostrich, and the other depicted a suited man in an unusual awkward position which resembled an ostrich...