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Attorneys and Ostriches: Beware the Wrath of Judge Posner

By Robyn Hagan Cain | Last updated on

You may have noticed that we're slightly obsessed with Seventh Circuit Court of Appeals Judge Richard Posner. He's our law crush because he always writes interesting opinions.

We're not naive: We know that behind every witty judge is a fleet of witty law clerks, but Judge Posner ultimately sets the tone and approves the opinions, so he's the object of our law crush. (Just wait until we start posting sonnets about him for Valentine's Day.)

With this law crush in mind, we admit that we did a double-take when reading a Posner opinion this week in which our favorite judge compared appellate attorney David McKeand to an ostrich.

Judge Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate… 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.’”

To drive the comparison home, Posner included a photo of an ostrich with its head in the sand, followed by a photo of a suited gentleman, also with his head in the sand.

(But for the ostrich references — Judge Posner might be as fixated on ostriches as we are on him — we could have sworn that this opinion was written by Judge Frank Easterbrook; Judge Easterbrook never holds back.)

Judge Posner was peeved because McKeand, one of the appellate attorneys appealing a forum non conveniens ruling before the court, failed to include dispositive precedent in his brief.

McKeand, however, told The Wall Street Journal that the case Judge Posner cited, Abad v. Bayer Corp, was neither on point nor relevant. “Not only is it on a different continent, the record we presented had no fewer than ten cases dismissed by Mexican courts proving that Mexico does not have any jurisdiction over foreign defendants.”

Right or wrong, we’re siding with Judge Posner on this one … unless David McKeand can woo us with a better man-as-bird argument in an en banc appeal.

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