On Thanksgiving Day, while you were enjoying your turkey (or tofurkey), we wrote about a different bird: namely, the ostrich. In a somewhat snarky opinion, Judge Richard Posner of the Seventh Circuit compared a lawyer appearing before him to an ostrich: “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.'”

Ouch. Judge Posner even included a photo (above right) of a man in a suit burying his head in the sand.

What did the lawyer in question, David “Mac” McKeand of Houston, have to say for himself? And what did McKeand have to say about Judge Posner?

Here’s the background, from the WSJ Law Blog:

The ostrich remark was directed at a lawyer representing a group of Mexican citizens suing over an accident-related death [in] Mexico. The 7th Circuit upheld a lower court’s decision that the lawsuit belonged in the Mexican courts. Posner criticized the lawyer, David “Mac” McKeand, for failing to cite a 2009 ruling that he said presented nearly identical circumstances.

Joe Palazzolo of the WSJ tracked down McKeand and asked for comment on the Posnerian benchslap:

“In the past I have had a great deal of respect for Judge Posner. I found his opinion to be beneath his high level of jurisprudence,” begins an email to LB.

The case Posner said was controlling, Abad v. Bayer Corp., dealt with a product liability case out of Argentina.

“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,” McKeand said.

If McKeand’s clients seek to litigate this case in Mexico, McKeand’s words may get turned around on them. And if they appear again before the Seventh Circuit, they might want to steer clear of Judge Posner, after what McKeand just said about His Honor:

“Abad was not controlling or even relevant to this case,” McKeand said. “In light of all the facts, I can only wonder who really is the ostrich.”

Yes, you read that right — McKeand just implied that Judge Posner is an ostrich. You can say what you will about them, but don’t deny that Texas lawyers have cojones nuts guts.

It’s worth noting that the Seventh Circuit ruling didn’t rest entirely on the Abad case. There was also some fairly conventional forum non conveniens analysis in the opinion (via How Appealing):

Judge [Sarah Evans] Barker’s careful and thorough analysis demonstrates that she was acting well within her discretion in deciding that the Mexican courts would be a more appropriate forum for the adjudication of this lawsuit by Mexican citizens arising from the death of another Mexican citizen in an accident in Mexico.

Unless the Seventh Circuit revisits the case en banc or the Supreme Court grants certiorari, both of which are highly unlikely, the three-judge panel presided over by Judge Posner is probably going to have the last word on this case. And it’s not inconceivable that McKeand could someday find himself before the Seventh Circuit again.

So it was probably unwise for David McKeand to compare an eminent jurist to an ostrich. Hell hath no fury like an Angry Bird.

P.S. As noted by a commenter on our prior post, this isn’t the first time that Judge Posner has written about the ostrich — and tried to shoot down the canard that ostriches actually bury their hands in the sand. To learn about the ostrich shout-out in Judge Posner’s opinion in United States v. Black, 530 F.3d 596 (7th Cir. 2008), see, e.g., this post by Scott Greenfield.

Who’s the Ostrich? [WSJ Law Blog]
Taking Judge Posner’s “Ostrich” Debate to the Mats (Update: Roberts/Liptak Mud Wrestling) [Simple Justice]
Gonzalez-Servin v. Ford Motor Co. [U.S. Court of Appeals for the Seventh Circuit via How Appealing]
David “Mac” McKeand [Martindale.com]

Earlier: Thanksgiving Greetings from Above the Law! (And a bonus benchslap from Judge Posner.)


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