concurring.
I do not share Judge Posner’s fear that the majority opinion might be construed to mean that any failure to appeal an appeala-ble judgment would be incompetence per se. Elson himself raised the question of his incompetence and asked that this issue be heard. It is only in the context of the very peculiar facts of this case that the failure to appeal was a final nail in the legal coffin of his client’s case. Filing an amended motion to vacate when Illinois makes “no specific provision for such an animal” and urging upon the court a hearing on that peculiar animal is not a substitute for filing an appeal when a relatively obvious miscarriage of "justice has occurred. Imaginative pleadings, however commendable, do not add to the time for a proper appeal. The fact that one judge would have provided a vehicle for hearing the imaginative motion and another, successor judge, would not, does not make the failure to appeal more sound; it may provide a reason for the failure but scarcely an excuse. Imagination is simply not a substitute for sound legal judgment.
Finally, I would commend Elson for his frank statement that he made a mistake. To rely on a judge’s agreement to hear and rule on a motion filed without any precedent or standing is not just a “long shot”— it is risk-taking at the expense of a client who had already suffered from legal advice that seemed to have failed to grasp the handle of legal reality. Elson may be more to be pitied than censured — he was undoubtedly doing his best to untangle a knotty problem not of his doing — but the opinion simply accepts what he himself has urged upon this court.