It will be impossible ever to think of Gonzalez-Servin v. Ford Motor Co., No. 11-1665 (7th Cir., Nov. 23, 2011), as anything but “the ostrich case,” chiefly because the court includes in its opinion full color pictures of an ostrich with its head in the sand and a lawyer imitating the bird.
The point of the case (actually, two cases, consolidated) is a serious one that you would have thought didn’t need to be made: If there is binding authority on point against you, deal with it. Distinguish it, or don’t take the appeal. Ignoring it won’t make it go away. Because the appellants’ lawyers in the first case ignored clearly binding circuit authority here — failing to deal with it in the first brief and then continuing to ignore it in reply, though the appellee devoted substantial attention to it in the response brief — the court not only published the silly pictures but mentioned the offending lawyer by name. The lawyers in the second appeal lost, too, but didn’t draw the shaming penalty because the contrary authority came down after their opening brief and they tried fecklessly to distinguish it in reply.
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