Injunctions
Case Analysis
Oct.
11, 2006
The
court’s discussion of the decision in D. Patrick, Inc., v.
Ford Motor Co., 8 F.3d 455 (7th Cir. 1993), does not actually
limit the precedent of that decision in any way, nor that of H.K.
Porter Co. v. National Friction Products Corp., 568 F.2d 24 (7th
Cir. 1977).
Both
cases involved motions for contempt for violating judgments that
incorporate settlement agreements, without clearly setting forth
the duties imposed by the agreements in the judgment itself.
Appellate
jurisdiction wasn’t even an issue in these cases. Thus, the
court’s language limiting their application does not overrule,
or even limit the decisions to their facts.
The
most useful aspect of this case for appellate attorneys is not
limited to cases involving injunctions but can be employed in
any case. Instead, it is the court’s simple four-word sentence:
“Beware decision by metaphor.”
Every
attorney and judge comes across briefs containing colorful metaphors,
some apt, some not so apt.
This
decision gives attorneys a pithy retort that they can cite when
confronted by such metaphors in their adversary’s brief.
Digging
through cases of the Seventh Circuit from the 1980s reveals several
more:
“In
law as in The Mikado a metaphor must not be confused with the
real thing.” Russell v. OWCP, 829 F.2d 615, 616 (7th Cir.
1987);
“‘The
most ironclad written contract can always be cut into by the acetylene
torch of parol modification supported by adequate proof.’
This is not reasoning; it is a conclusion disguised as a metaphor
(cite omitted).” Wisconsin Knife Works v. National Metal
Crafters, 781 F.2d 1280, 1286 (1986).
And
the earliest, by Judge Posner when still in his rookie year on
the Seventh Circuit: “We deprecate decision by metaphor.”
Encyclopedia Britannica, Inc., v. C.I.R., 685 F.2d 212, 217 (7th
Cir. 1982).
These
old comments by the court, and the latest one in the case at bar,
could be very useful for removing the wind from the sail of your
adversary’s argument (bad metaphor fully intended).
Click here for
Main Story.
David
Ziemer can be reached by email.
