Judge Compares Plaintiff's Attorney to Ostrich With Its Head Buried

Judicial opinions can be dry, dense and complex documents. So when a federal appeals judge wanted to rebuke attorneys for completely ignoring a precedent in case filings, he used pictures to liken them to an ostrich with its head in the sand.

In an unusual six-page published opinion, Judge Richard Posner of the Chicago-based Seventh Circuit Court of Appeals ended his ruling with two pictures of an ostrich and a man wearing a suit burying their heads.

The ostrich is a noble animal, Posner wrote, noting that the flightless bird does not really hide its head in the sand, but not a proper model for an appellate advocate.

Posner's opinion from last week was related to two cases that lower courts had removed from U.S. jurisdiction. In one case, a federal district judge ruled that a case over alleged accidents caused by defective Bridgestone tires installed on Ford vehicles in Latin America should be heard in Mexico.

In another case, a federal judge decided that Israel is a better forum to hear a case alleging that hemophiliacs received HIV-contaminated blood products.

In the tire case, Posner was dismayed that plaintiff's counsel never cited the Seventh Circuit's decision in Abad v. Bayer Corp., which transferred a case to Argentina under the doctrine of forum non conveniens. That doctrine allows courts to reject jurisdiction in favor of a more appropriate venue.

Plaintiff counsel David S. McKeand filed his opening brief as well as his reply brief after the Abad decision yet mentioned it in neither brief despite the heavy reliance that opposing counsel placed on it, Posner wrote in upholding the lower court ruling in favor of bringing the case to Mexico.

In the blood case, plaintiffs counsel discussed Abad a little and another case over jurisdiction, Chang, not at all, even though both decisions are heavily relied on by [the defendant companies] and highly relevant to their case, according to Posner.

McKeand, in an e-mail to the Wall Street Journal's Law Blog on Monday, said Abad was not a decision controlling the case or even relevant, contending that a Mexican appellate judge had explained that its courts had no jurisdiction over foreign defendants like Ford.

In the past I have had a great deal of respect for Judge Posner, McKeand said. I found his opinion to be beneath his high level of jurisprudence.

In light of all the facts, McKeand added, I can only wonder who really is the ostrich.