Why you must be upfront with adverse authority.

If you’re not, someone like Judge Posner may slam you in full color.

Comments

[Brom]

When you wrote "full color," I thought you were just being metaphorical - and then I read the opinion. I love the juxtaposition of those two pictures. And while most appellate decisions aren't going to feature color photographs, I like the inclusion of those photographs in this opinion; I think they add just the right tone. Nobody who reads that opinion can doubt how the court feels about lawyers who ignore relevant precedent.

[Ruth Anne Robbins]

This is the second time I have seen a 7th Circuit opinion that made the point with photos. Do you think that this mean we can also use photos in briefs? That would be very welcome news.

I also want to point out that the opinion itself has lovely document design.

[Ray]

I haven’t tried photos in a federal brief, but I did try it a few times in state-court briefs. The second time, the other side moved to strike the brief, but the court denied the motion. I’d say that if the photo is in evidence, a copy of it in the brief is okay until the court says something different.

[Brom]

I just came across an article with a response from the lawyer named in the opinion.

http://blogs.wsj.com/law/2011/11/28/whos-the-ostrich/

I find his response to be pretty weak. He said that the authority he ignored wasn't controlling or even relevant. But because his opponent relied heavily upon it, he still should have addressed it in his briefs: that was Posner's point, and he doesn't seem to have understood that yet.

[Ray]

I agree, Brom. I don’t know whether the argument to the reporter holds water, but if that’s his argument, he should have put it in his brief. Seems pretty simple to me: An argument cannot persuade if it’s omitted from the brief.

[Michelle Johnson]

Ruth Anne, do you by any chance still have the cite for the other Seventh Circuit opinion using pictures? I would enjoy seeing it.

Thanks,

Michelle Johnson

[Roger W. Hughes]

This, as one might expect from Posner, is the shortest, most direct statement of why one confronts adverse authority. The failure virtually admits counsel has nothing. It is counsel's only chance to distinguish it. In one case, I did not cite a controlling recent decision in hopes it might disappear by a m/reh; it did not but my opponent failed to cite the case. I cited it in my reply brief and then gave alternative arguments why I should I should win anyway. Fortuntately, the panel decided to accept my alternative argument. Confession is good for the soul and your briefs.

[Stephen R. Diamond]

On the use of pictures in briefs—Posner welcomes it in the 7th Circuit, and he seems to think the courts generally do:

""Wherever possible, use pictures maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing it makes it come alive to judges." (Richard A Posner [http://tinyurl.com/73j7q99].)