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Injunctions Case Analysis

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);

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“‘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).

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David Ziemer can be reached by email.

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