On Thanksgiving Day, while most everyone was either at home stuffing their faces with turkey, or out to eat somewhere, stuffing their face with turkey, other people were sitting at a desk written a story about a different type of bird: namely, the ostrich. In a somewhat very snarky opinion, Judge Richard Posner of the Seventh Circuit compared a lawyer that appeared 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, it is as unprofessional as it is pointless.”’
Gees. Judge Posner even included a photo of a poor guy is a suit burying his head in the sand.
So, what did the lawyer in question, David ”Mac” McKeand of Houston, Texas, have to say for himself? And what did McKeand have to say back about Judge Posner?
This is the background story, curtsey of 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 Palazzo, who is a member in the WSJ, tracked down McKeand and asked him for a comment on the Posnerian slap in the face:
”’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,” began his email to LB.
The case Posner said was controlling, Abad vs. 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,” said McKeand.”
If McKeand’s clients seek to litigate this case in Mexico, McKeand’s words may get turned around to them. And, if they appear again anytime 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,” said McKeand. ”In light of all of the facts, I can only wonder who really is the ostrich.””
Yeah, you did read that right–McKeand just implied that Judge Posner is an ostrich. You can say whatever you want about him, but you cannot deny that this Texas Lawyer has some serious guts.
It is definitely worth noting that the Seventh Circuit ruling did not rest entirely on the Abad case. There was also some fairly conventional forum non-conveniens analysis in the opinion.