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:

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.

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

 

 

 

 

 

 

 

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3 Responses Leave a comment

  • Max Kennerly 2011.12.7 at 19:29 | Quote

    While the advocacy in that case certainly left much to be desired, the mocking tone and inclusion of the pictures indicates to me that the panel doesn’t think that being a federal appellate judge is serious business.

    Next time I file an appeal, can I indicate what I think of the District Court’s opinion by including a picture of a man with his head up his butt? Is there any doubt I’d be sanctioned for that?

  • Eric Turkewitz 2011.12.7 at 20:43 | Quote

    I also had a gut reaction that this was over-the-top for the judge. In fact, that is why I didn’t use the lawyers names, though they are certainly fair game given the circumstances.

    But the opinion is signed by two others, including Chief Judge Easterbrook. So they agree that this bench slap was not inappropriate.

    I can only assume that they perceive a problem with appellate advocacy in their court, and that this was the straw the broke the camel’s back. I can’t see any other explanation for such harsh treatment.

  • Ron Miller 2011.12.14 at 14:34 | Quote

    I agree with Max on this. It is a little too much showboating. I’m convinced judges – and this judge is obviously a mega heavyweight but also clearly enjoys the limelight – do this kind of stuff to get extra pats on the back at local bar associations Grand Pooh Bah meetings after they give that keynote address.

    Believe me, what appellate counsel did in this case – ignoring the existing case law to the point of being an ostrich – should be condemned. But a federal panel of judges saying that makes that point without the histrionics.

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