Was Judge Posner a Dodo in His Ostrich Opinion?
Of course not! But the headline got your attention, didn’t it? The notion of Judge Richard Posner as being anything other than a genius will certainly make people sit up and take notice. There’s a reason why there’s a Facebook group called Richard Posner for Philosopher King (of which I am a proud member).
It should be noted, however, that Judge Posner’s opinion in Gonzalez-Servin v. Ford Motor Co. was not 100 percent perfect. It initially contained some infelicitous wording — which has since been fixed.
Let’s look at the language that was perhaps imprecise….
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UPDATE (4 PM): Additional comment from Judge Posner, added after the jump.
Just to refresh your recollection — the original opinion came down before Thanksgiving, so it has been a while — Judge Posner issued an opinion for a unanimous panel of the Seventh Circuit, affirming various forum non conveniens rulings by Judge Sarah Evans Barker. Frustrated by the advocacy of David “Mac” McKeand, one of the plaintiffs’ lawyers, Judge Posner compared McKeand to an ostrich, for allegedly burying his head in the sand when confronted with adverse precedent — to wit, the decision in Abad v. Bayer Corp., also written by Judge Posner. His Honor then included, in the opinion itself, a photograph of a man burying his head in the sand (see above).
The Gonzalez-Servin opinion generated significant discussion on a list-serv of law professors who teach Civil Procedure. The thread was started by a professor who sent around the opinion, along with this assessment: “For those of us who like to give examples of how to (and how not to) litigate, this new opinion is short and readable — and with memorable visuals!”
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But one list-serv member raised a substantive question:
I have a different issue with Posner’s opinion. Why does he repeatedly refer to forum non conveniens *transfers* to the courts of Argentina or Mexico? I’ve always taught students that grant of a forum non conveniens motion results in dismissal — there is no way to transfer the case (as in a 1404 transfer) to a foreign sovereign, and no way to insure that the litigation will actually proceed in the alternative forum. Am I missing something?
Nope, you’re not. I reached out to Judge Posner, who responded as follows:
He’s quite right. But if he looks at the Westlaw version of the opinion, he’ll see that “to transfer” has been changed to “to (in effect) transfer.” It is a dismissal, not a transfer as such, but it is a dismissal premised on the willingness of a foreign court to entertain a refiling of the identical suit.
(As it turns out, the “he” is actually a “she.” The professor who raised this issue on the list-serv was Pauline Kim of Washington University School of Law. In fairness to Judge Posner, I didn’t reveal the identity or gender of the professor when I contacted him, so presumably the “he” was used in its traditional, inclusive sense.)
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This issue of “transfer versus dismissal” in the forum non conveniens context has been fixed in Gonzalez-Servin, through the minor edit described by Judge Posner. And it’s clear, from his prior opinion in the Abad case, that Judge Posner understands the difference between transfers and FNC dismissals (as if that even needed noting).
Other law professors, however, had a perhaps more serious criticism of the opinion. As one law professor on the list-serv said to me, “I think it’s fair to say many of us thought Posner’s use of pictures was childish and unprofessional.” See also this comment on one of our prior posts:
Posner’s opinion was gratuitously disrespectful of counsel and therefore misconduct — whether he has lifetime tenure or not. The inherent racism and classism in his opinion is hardly subtle either: Take your clients back to Mexico where they belong.
Okay, playing the “race” card may be a bit much. But one could certainly argue that Judge Posner’s treatment of McKeand was unnecessarily harsh. Here are what some law profs told the Chicago Sun-Times:
“I don’t think lawyers should be treated in that manner,” said Warren Wolfson, a former Illinois appellate justice now teaching at the DePaul University College of Law. “There are ways of pointing out deficits without getting personal. I wouldn’t ridicule lawyers like that. I wouldn’t do it.”
“It’s pretty unusual — I don’t recall ever seeing a photo included to make a rhetorical point,” said Northwestern University Law Prof. Steven Lubet. “It certainly didn’t add anything to the opinion, which was strong enough without the photos.”
“I just wish that he wouldn’t be as insulting as he is to attorneys who appear before him,” DePaul Law Prof. Leonard Cavise agreed.
On the other hand, here’s a defense of Judge Posner, from one of our commenters:
[S]ending a brief like that to any federal court was foolish. The lawyer’s response — that the Abad case was “on a different continent” and that he had 10 cases showing that the Mexican courts themselves didn’t think they had jurisdiction in this situation — really doesn’t address Posner’s point. Posner wasn’t scolding the lawyer for having a weak case; he was scolding him for completely ignoring the Abad case in his brief. And he is right — even aside from the ethical obligation to bring adverse precedent to the court’s attention, it is amateurish, ineffective advocacy to simply ignore the elephant in the room…. Had he addressed the Abad case, he still might have lost, but he wouldn’t have gotten an opinion comparing him to an ostrich.
UPDATE (4 PM): Here’s what Judge Posner had to say about this post:
I certainly don’t mind being called an ostrich, as long as it’s understood that ostriches don’t in fact bury their head in the sand. That would be dumb. Once the ostrich is free from that calumny, it stands forth as a noble animal with whom any judge should be proud to be compared.
The dodo is a fine bird too, but unfortunately extinct. I therefore prefer the comparison with the ostrich.
Readers, what do you think about all of this?
In the case of Richard Posner v. David McKeand, I side with:
Loading ...Gonzalez-Servin v. Ford Motor Co. [U.S. Court of Appeals for the Seventh Circuit via How Appealing]
David “Mac” McKeand [Martindale.com]
Judge compares lawyer to ostrich [Chicago Sun-Times]
Earlier: A Reverse Benchslap? Chastised Lawyer Lashes Out at Judge Posner
Thanksgiving Greetings from Above the Law! (And a bonus benchslap from Judge Posner.)
