On Not Ignoring Unfavorable Precedent

Law students and lawyers — don’t let this happen to you (from today’s Gonzalez-Servin v. Ford Motor Co. (7th Cir.):

In … Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009)[], we affirmed Judge Barker’s transfer of a similar case [to the one being litigated here] to the courts of Argentina under the doctrine of forum non conveniens. The appellants in No. 11-1665 (the plaintiffs in the district court), the accident case, do not cite Abad in their opening brief, though the district court’s decision in their case was issued in 2011 — long after Abad. In their response the defendants cite Abad repeatedly and state accurately that its circumstances were “nearly identical” to those of the present case. Yet in their reply brief the appellants still don’t mention Abad — let alone try to distinguish it — and we take this to be an implicit concession that the circumstances of that case are indeed “nearly identical” to those of the present case.

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it….

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.” The attorney in the vehicular accident case, David S. “Mac” McKeand, is especially culpable, because he filed his opening brief as well as his reply brief after the Abad decision yet mentioned it in neither brief despite the heavy reliance that opposing counsel placed on it in their response brief.