Nov 23 (Reuters) - Judge Richard Posner has written a six-page appeals court decision that includes two photos -- one of an ostrich with his head in the sand, the other with a man in a suit with his head in the sand -- to illustrate some litigators' habit of ignoring court precedent.
"The ostrich is a noble animal, but not a proper model for an appellate advocate," Posner wrote in an opinion on Wednesday on behalf of a three-judge panel of the Seventh Circuit Court of Appeals. The decision upheld two lower court judges' decision throwing out a pair of tort cases.
The panel sharply criticized two sets of attorneys for ignoring the circuit court's ruling on the doctrine of forum non conveniens, which limits U.S. court jurisdiction over lawsuits stemming from injuries that occurred abroad.
The pair of cases before the panel -- one over an auto accident in Mexico, another over contaminated blood products in Israel -- ignored a precedential 2009 circuit court opinion, Abad v. Bayer Corp., that mandated the transfer of cases to courts abroad, the appeals court held.
"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," Posner wrote. "Whatever the reason, such advocacy is unacceptable."
The plaintiffs in the case both ignored the Abad decision in their briefs, Posner wrote. One plaintiff's lawyer, David McKead was "especially culpable" because his initial brief was filed after the Abad decision was reached. The other plaintiffs, Posner wrote, did refer to the case, albeit "unpersuasively."
"Their advocacy left much to be desired, but McKead's left more," said Posner.
Messages left for McKead and plaintiffs' lawyer Elizabeth Cabraser were not immediately returned.
The cases are Monica del Carmen Gonzalez-Servin v. Ford Motor Company, 11-1665, and Yehuda Kerman v. Bayer, 08-2792, U.S. Court of Appeals for the Seventh Circuit.
(Reporting by Carlyn Kolker)
Follow us on Twitter: @ReutersLegal