Judge compares lawyer to ostrich

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Updated: January 3, 2012 9:09AM

Lawyers have come to expect tongue-lashings from federal appellate Judge Richard Posner if he doesn’t like the answers they give him in court.

But Posner broke new ground last week when he included in his published opinion photos of an ostrich burying its head in the sand and a suited lawyer sticking his head in the sand.

“The ostrich is a noble animal, but not a proper model for an appellate advocate,” Posner wrote.

He said the lawyers in two cases dealing with events that happened abroad — tire defects in Mexico and contaminated blood products in Israel — ignored what Posner considered the most relevant recent case dealing with the issue of whether such cases can be tried in the United States.

Under a picture of a man — presumably a lawyer — with his head in the sand and his well-dressed bottom in the air, Posner wrote that attorney “David S. ‘Mac’ McKeand, is especially culpable. . . ”

Legal scholars said they could not remember a judge using such harsh tactics against a lawyer.

“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.

Attorney “Mac” McKeand lives in Dallas and so doesn’t have to worry about appearing before Chicago’s best-known judge too often. So he told the Wall Street Journal’s law blog that Posner, in his opinion, failed to cite what McKeand thought were the most relevant cases.

“In light of all the facts, I can only wonder who really is the ostrich,” McKeand said.

Posner acknowledged in his opinion: “Not that ostriches really bury their heads in the sand when threatened. Don’t be fooled by the picture below.”