Anderson had a note last week about the 7th Circuit’s
turkey ostrich case that included actual pictures of an ostrich and—presumably—an attorney with their heads in the sand.
Here is Judge Posner’s 7th Circuit opinion, in which he chastises lawyers for ignoring adverse dispositive precedent. Judge Posner writes:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguish or reserve a challenge to it for a petition for certiorari but may not simply ignore it.
Where would a lawyer writing an appellate brief learn such a foolish practice as ignoring adverse precedent? My guess is that the lawyer routinely ignores adverse facts in trial court pleadings and briefs. I see that all the time.
Much of responding to a defendant’s motion for summary judgment is making a record of and pointing out to the judge all the facts favorable to the plaintiff that the defendant left out of its summary judgment motion. Many times, that is the entirety of responding to a defendant’s summary judgment motion. The defendant can’t get summary judgment when those facts are in play, so it ignores them. Fervently.
It’s an interesting tactic. My fear is that the tactic sometimes works. Otherwise, why would you see it so much?
Some trial court judges expose the hole in the party’s argument during hearings and confront the attorney with the opposing facts. It can be uncomfortable to watch. Trial court judges who are poker faced and don’t say much during hearings may cause anxiety for the side with the upper hand because they don’t signal whether they “get it.”
Sometimes when a case makes it to trial, it’s the defendant who has the “rest of the story” and the plaintiff has ignored bad facts. A commercial case where the documents are particularly good for the defendant are an example of a situation where this can happen.
But there is a big difference between ignoring harmful facts and ignoring dispositive precedent. Lawyers are supposed to disclose dispositive authority to the court. There is no such obligation with facts that help the opposing side.
Above the law has the lawyer’s response, in which he disagrees with Posner.