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Appellate Advocacy – What Not To Do

Judge Richard Posner has written almost 40 books, most dealing with law and economics, and about 2,200 published opinions. A Reagan appointee, he has been on the 7th Circuit bench since 1981. He has been described as “probably the greatest living American jurist” in a website called “Project Posner”, created by his former law clerk, Timothy Wu, now a professor at Columbia Law School.

Posner recently wrote an opinion, castigating two lawyers, one of them by name, who had filed briefs in the 7th Circuit which ignored recent dispositive precedent relied upon by opposing counsel. The opinion, Gonzalez–Servin v. Ford Motor Co., 662 F.3d 931, 933 (7th Cir.2011), contains photographs of an ostrich hiding its head in the sand and a man in a brown suit (presumably a lawyer) acting similarly. 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.’”

 

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