Wednesday, November 23, 2011
Ind. Decisions - Two Posner opinions today on Indiana cases, at least one is priceless
In re Fort Wayne Telsat (ND Ind., Springmann) is a 13-page opinion in a bankruptcy case. Judge Posner writes:
This appeal requires us to explore the duty of a trustee in bankruptcy to prosecute uncertain claims for the recovery from third parties of assets allegedly owned by the bankrupt estate. * * *In Gonzalez-Servin v. Ford Motor (SD Ind., Barker), and In re Factor VIII (ED Ill.), a 6-page illustrated opinion, Judge Posner writes:
And remember that the license wasn’t actually worth $4.1 million—that the trustee estimated its value to the debtor to be only $600,000 and that this was a reasonable estimate. He thought the probability that a claim to those rights would succeed was zero, but even if it were much higher it still wouldn’t have been worth pursuing. Litigation is expensive! If the probability of the trustee’s prevailing on such a claim were 50 percent (much too high, in light of our analysis), the expected gain from pressing the claim would be $300,000, but that would be gross rather than net. The $100,000 received in settlement would be gone, leaving an expected gain from litigating of $200,000. It is unlikely that a complex commercial litigation could be conducted for less than that amount of money and therefore the net gain (the gross expected gain minus litigation expense) would be unlikely to exceed $100,000 and might well be negative.
The bankruptcy judge and the district judge got it right: the trustee had acted reasonably in settling the debtor’s claim against the university for $100,000.
We have consolidated for decision two appeals that raise concerns about appellate advocacy. These concerns are likely to arise in similar appeals, so we have decided to address them in a published opinion. Both are appeals from grants of forum non conveniens in multidistrict litigation. * * *
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. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) 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.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).
[ILB: See pp. 5 & 6 of opinion for color photos of ostrich with head in sand, and man in suit with head in sand.]
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. In contrast, counsel in the bloodproducts appeal could not have referred to either Abad or Chang in their opening brief, did try to distinguish Abad (if unpersuasively) in their reply brief, and may have thought that Chang added nothing to Abad. Their advocacy left much to be desired, but McKeand’s left more. AFFIRMED.
Posted by Marcia Oddi on November 23, 2011 02:50 PM
Posted to Ind. (7th Cir.) Decisions