The Ostrich Offense
Many people have heard of the Sergeant Schultz defense (“I know nothing”), named for the Hogan’s Heroes character. It’s quite popular with defense lawyers and politicians looking to evade responsbility for something, even it it happened right before their eyes. (We will likely see much of this in the Penn State abuse scandal.)
But into the legal lexicon now comes comes The Ostrich Offense. Courtesy of Seventh Circuit Judge Richard Posner, he lambassted two lawyers recently for ignoring controlling opinions on the subject of forum non conveniens. But worse than criticizing, he actually mocked them by inserting the two graphics that you see here right into the text of the opinion in Gonzalez-Servin v. Ford Motor Company. Pictures in an appellate opinion? Never seen that one before.
The language you see that follows, or a paraphrased part when used in the lower courts, is virtually guaranteed to see wide citation well beyond the issue being discussed, as it goes to the far broader subject of intelligent legal advocacy:
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.” (citations omitted)
The message to the bar in naming and mocking the two lawyers seems clear: Don’t screw around when you appear before us. You will regret it if you do. If there is a “bad” case on your side, you better figure out how to deal with it, or concede the point and don’t waste our time.
I use the phrase Ostrich Offense (as opposed to Schultz Defense) because the most likely use of this case, and potentially the graphics, is as a sword to strike down the other side in Reply for ignoring important case law.
(And, by the way, this is not the first time Judge Posner has opined on ostriches in arguments)
More on The Ostrich Case:
Was Judge Posner a Dodo in His Ostrich Opinion? (Lat @ Above the Law)
Who’s the Ostrich? (Palazzolo @ WSJ Law blog) – in which the mocked lawyer responds
Judge compares lawyer to ostrich (Pallasch @ Chicago Sun-Times) Lawyers don’t recall ever seeing pictures to make rhetorical point