I recently had the opportunity to sit and talk with Roshan Rajkumar, a partner with the Bowman and Brooke law firm. He’s a perfect candidate for a profile because his civil litigation expertise is specialized, narrow, and deep. So he might not be broadly known in the Minnesota civil litigation bar, but he should be. Also, Roshan has distinguished himself as a mentor for many younger lawyers – a role that many aspire to and maybe many more should.
ML: You have been with the law firm of Bowman and Brooke for forever doing primarily automobile product liability defense work, right?
Roshan Rajkumar: Almost 15 years.
Products liability is what Bowman and Brooke is known for, but over the years, in my 15 years we’ve kind of evolved from not just everything that has wheels and engines and how they fail or people get hurt by them. As we’ve evolved to have more work, more business, more opportunities it’s crossed over from not just what Dick Bowman would always call the real products liability work to premises liability, mass tort, product warranty and product fire, as well as we have gone from primarily representing manufacturers of motor vehicles, heavy duty trucks and motorcycles to manufacturers that represent or manufacture medical devices, oil refinery equipment, oil rigs, and heavy equipment.
I think about the list because I’ve had the opportunity to represent manufacturers of sex toys, all because it’s gone across the board of what falls into products liability is many different things. The sex toy almost focuses almost exclusively on warnings and owners’ manuals and that kind of information. Then, of course, misuse, based on the fact of lacking to do that.
I’ve also done airbag cases and rollover cases, which has been our bread and butter for many years and then I’ve helped grow kind of our younger partner litigation work in mass tort, in product warranty and product fire, which has given us an opportunity to grow our business, but also to make kind of new areas of practice for our younger partners so they can be “business owners” and of value to the company.
ML: I have to ask about the sex toys, of course. What are they?
Roshan Rajkumar: Oh, man. It’s been across the board from vibrators, which is interesting in and of itself to exotic gels, stuff that are literally things you could buy at Sex World in downtown Minneapolis (which somebody just told me the building has been sold so it is apparently closing one way or another). But all sorts of different things. The world of sex toys from beads and other things also fall into it. I have to tell you, I was not versed in it, but we were contacted out of the blue by a manufacturer based actually in Wisconsin dealing with litigation that was happening in Minnesota. We represented it and there are a lot of good defenses that are there based on warnings. Owners’ manuals, depending on the type of toy you’re getting, which are pretty thorough and they do pretty much tell you to read everything before you use the device. Then there’s also an element of common sense, like having a device that has to be plugged in, not taking it into a bathtub or a Jacuzzi might be a good idea.
ML: That’s product liability work, those are personal injuries sustained I take it due to use of the product and I supposed you would say as the defending lawyer misuse of the product?
Roshan Rajkumar: Correct. Misuse or even abuse of the product, yes.
ML: But your main bread and butter and your firm’s main bread and butter for so many years has been cars essentially. Is that right?
Roshan Rajkumar: That is correct.
ML: Readers might be interested in hearing what kind of car an expert in automobile products liability defense drives. What kind of car do you drive?
Roshan Rajkumar: I have too old of a car, my wife will say, but it’s a 1998 Volvo. S70 with 258,000 miles on it. One of the safest cars out there and it is like a small tank, but I absolutely love it and until she fails on me, I’ll keep driving her.
ML: You mentioned airbag litigation and that’s people who are injured by either the airbag failing to deploy or allegedly deploying when it shouldn’t have. Also, there’s been a lot of press about airbags defectively propelling pieces of metal at people as well, correct?
Roshan Rajkumar: That is correct.
ML: We talked earlier and you had mentioned that a serious use or misuse of airbags is having a child in the front passenger seat?
Roshan Rajkumar: That is one kind of case I have dealt with. And, actually, one of my biggest cases involved a small stature woman.
A deployed airbag can kill an individual who’s 5 foot 2 inches or under, in a certain weight class. This plaintiff’s height unfortunately put her in a horrible situation where when the bag deployed in circumstances where it should have, it was on icy roads. Plaintiff had no treads on her tires in North Carolina. She lost control and slammed into at a pretty good rate of speed into another vehicle. Airbag deploys, but based on her being 5 foot 2 and also because she drove with literally her chest up against the wheel, that airbag had nowhere to go and it literally snapped her neck. That can happen to small stature individuals who are outside of the “reasonable person” metrics that they use for designing these airbags.
ML: Such a person, I guess that person was not on the passenger’s side, but a driver?
Roshan Rajkumar: She was actually the driver.
ML: What are small people supposed to do? Aren’t the airbags mandatory?
Roshan Rajkumar: Airbags are not mandatory. In that type of vehicle, it could have actually been deactivated. Typically they don’t go there now. There’s literally pressure sensors and I have to tell you that litigation, which is probably over eight or nine years ago for that case, at that time, we didn’t have the same technology that we have now where literally there’s seat sensors to tell you about the positioning of the person, their body and their weight. Just like a small child is being told if they’re under 80 pounds and a certain height, they should be in the back seat in a booster seat, never in the front seat. These sensors can actually tell if this person is of a certain weight that an airbag could actually kill them rather than help them and they won’t activate. We didn’t have that technology at that time. That was probably about a 2007 case for that manufacturer.
ML: Is all the improved automotive technology benefiting us all and hurting your business?
Roshan Rajkumar: The number of airbag cases I have has honestly gone down 90%. The technology’s gotten better. There are multi-sensors as opposed to a single sensor. There are so many electronics on our vehicles, good or bad, especially with the supplemental restraint systems including airbags and side airbags and curtain airbags, etc. They’ve become very good at determining who is where at the proper moment, even though, of course, everything is happening in literally microseconds. We have far fewer cases like that and typically if I see an airbag case now, it’s because of an older vehicle where an airbag deployed rather than something that’s a 2010 or later.
ML: Do you keep track of the cutting edge car technology and how it affects your work?
Roshan Rajkumar: We do. We always feel like we’re one poorly designed or poorly engineered concept or option away from the next class action. One that we’ve been monitoring closely, of course, is the self-driving vehicles that are automated driving vehicles. It’s wonderful and at the same time it opens up a host of possibilities and potential liability.
You harken back to the woman who drove her RV and thought that having cruise control was like having autopilot and yet… This was a case, I think in the south, it might have even been in Kentucky, where a jury agreed with her that she could reasonably infer that [interview laughter]… Yeah, don’t ask me….It’s one of those cases I looked at it. I just remember reading it. She put on the cruise control while driving the vehicle and then got up to go grab a sandwich in the back and there was an accident.
You’ve seen lots of ads from Volkswagen and others about how they tout that their cars will stop an accident from happening based on the technology. We are monitoring developments like these all the time because we also know there can be potential failures and many of these options, these safety devices are first generation or early second generation and that’s when the bugs are being worked out. So there are opportunities for us, good or bad, for additional litigation or defending our clients’ products and cutting edge technology.
The idea of the automated car that self-parks, that drives on its own… I don’t think we’re at the George Jetson phase yet of vehicles driving autonomously, but we’re coming close and unfortunately we get comfortable with that and we expect everything to be perfect. We are monitoring these developments, watching them, looking for opportunities as well and marketing towards them. You already see CLEs across the country where people are talking about the next wave of litigation. Some of my senior partners are the ones speaking on these subjects around the country.
ML: What other next waves of litigation that you see on the horizon.
Roshan Rajkumar: We’re always watching for it. Since I do so much work in mass tort, asbestos has been one that’s never dying and it continues to keep going. Benzene, we thought would be the next asbestos, and then there was some medical defenses and poorly pursued cases in that area that kind of made this litigation go away, but we’re suddenly starting to see these cases again because there’s some new medical evidence as to cause and effect of certain disease processes from benzene exposure and I think now the plaintiff’s bar has become better versed in it to bring the case. We could see that from that standpoint at least in the mass tort litigation.
The other thing that really we’ve seen now mass tort outside of toxic torts is the Volkswagen, the fraud on the emission standard. We see potentials for all sorts of manufactured devices, whether its cars, trucks, motorcycles, ATVs or side by sides where if there’s a vehicle that’s displaying some sort of concern and you start seeing a pattern, that’s the next wave of class action.
These waves of litigation tend to originate out of California or Georgia where they have some good consolidated class action state courts that then can, of course, lead to multi-district litigation in federal court.
We’re always watching for that because patterns can come up pretty quickly when something’s not working, i.e., GM and the ignition switch litigation, which we’ve been involved with as well. The plaintiff’s bar is pretty savvy and watching that, connecting the dots very quickly. The only reason why I say that it’s more of a general response, we don’t always know who did what from a manufacturing standpoint as to a car or motorcycle, but if they made something that’s tens of thousands of vehicles went out there and something fails, you start seeing the pattern. That could be the next class action and the plaintiff’s bar is very quick to react.
ML: When was your last trial?
Roshan Rajkumar: My last trial actually was a two or three-day trial, in the fall of 2015. I had one set to go March of this year and it literally settled three days before we went to trial, which was kind of a bummer. We had done all the preparation for it and that was for an Alabama fire case.
ML: Your cases are sort of all around the country, correct?
Roshan Rajkumar: Yes.
ML: Do you have any cases in Minnesota?
Roshan Rajkumar: About 20% of my cases are in Minnesota, but the rest are all over the country.
ML: What was your last trial?
Roshan Rajkumar: Last trial was dealing with a product warranty. Somebody dissatisfied with, how should say it, the application of the warranty to their vehicle with heavily modified aspects of their vehicle. They had chosen to put close to $8,000 worth of after-market accessories and parts to make the vehicle better . In the end he had to admit he wasn’t an engineer or a designer. He’d never done any sort of product modifications like that. It was a two-day trial, a bench trial, came up with judgment for the defense. It was clearly the buyer’s own modification issues that led to the concerns with the vehicle. A good win.
ML: Do you like going to trial?
Roshan Rajkumar: I love it. When I started 15 years ago with Bowman and Brooke, I was probably averaging 7 to 10 trials of jury trials a year. Now we’re down to 1 or 2. It’s unfortunate, but some of it’s the business aspects of it. It’s costly to go to trial in state or federal court. Then also a lot of the volume that I do in product warranty and product fire cases are all about agreeing to a figure very quickly. Even on the fire cases where there are half a million to a million dollars in loss, the insurance company that’s involved really doesn’t want to try the case. They want to get to a figure that their clients can live with. It’s a business decision and they just want to close out cases. I miss the days where I had opportunities to either be trying the cases or being the second or third chair with first-chair trial counsel learning and growing from that, but it’s still happening, just not often enough.
ML: Do you keep a tally of how many states you’ve tried cases in?
Roshan Rajkumar: As a firm, we do. For myself, I have tried cases in probably over 20 states, most heavily in Wisconsin surprisingly. I just have a lot more cases there than anywhere else.
ML: Which court system do you regard as the strangest in which you’ve had to try a case?
Roshan Rajkumar: New Orleans, in one of the local parishes and I won’t even try to remember the name of it, had very good local counsel that walked us through it, but the local rules were quite rigid — granted you’re dealing with French law as the background — so it made for some interesting moments. Also the local customs were very different down in South-side New Orleans. Louisiana is very parochial.
ML: What were the “very different” local Louisiana customs you’re referring to?
Roshan Rajkumar: One of them concerned the process for out-of-state lawyers to get admitted to appear pro hac vice for a case. Typically, you submit papers, your local counsel will show up, ask the Court for your admission to appear in a case, and everything’s fine. In Louisiana, the court demanded that I appear in person. That was one of the local customs and even local counsel, which hadn’t really dealt with it before, was kind of surprised so literally when he got in to have the papers signed, they had to set up a separate hearing for me to fly down and be there. It was the shortest hearing, like 5 to 7 minutes and all the judge wanted to do was meet me, size me up, ask me some questions and then signed the order. That was an interesting local custom.
The other was you may have mediators in mind, but the judge would express a preference and you were to respect the preference. It tended to be somebody that they were either related to or had a family connection to and you didn’t have the right to say no or it could prove pretty badly for you as things go down the road.
ML: Has there been any particular state forum or federal for that matter that stands out to you as a well-run system?
Roshan Rajkumar: Some people will disagree with me, but the Eastern District of New York for the MDL work that I’ve done there has actually been very efficient, but granted I’m looking at the window of the last probably 10 years. I’ve worked more with the Eastern District of New York for the MDL 875, which is dealing with asbestos. You know it kind of have its form and function in process and things get brought in there and they move forward and they push towards summary judgment or settlement and then they get kicked back to the state court. It’s been really actually pretty effective. The other one actually that I do remember really well because this is one of my first trials, we’ve had a couple of cases there was in, I want to say it’s the Eastern District of Arkansas, that has also been a really good federal court process for getting through procedures, getting things kind of like, if we’re going to try this case, you’ve going to get there.
You’re going to get there in not like 3 or 4 years. You’re going to get there in probably a year, year and a half depending on how sophisticated the litigation is. They’ve been impressive as well. One that I haven’t had as many cases in that I’ve enjoyed that has been state court in Fargo, North Dakota. With the mass tort, it’s actually pretty well run. We’ve had some retirements of judges, but they’ve tried to keep the historical knowledge going with the new chief judges for asbestos and that’s actually been pretty good.
ML: The other area that I was hoping to get insights from you on is mentoring. As I’ve mentioned to you, I’ve come across folks who have said that you are the model, the perfect mentor. Tell me what makes you the perfect mentor. Tell me whether you think there’s a place for mentoring outside of one’s own law firm’s mentoring and what that’s like.
Roshan Rajkumar: I’m humbled if anyone says I’m a perfect mentor because I know, I don’t think I’m perfect in anything, but the idea of the mentoring is part of the reason why I have been successful as a lawyer. It helped me grow. I had wonderful mentors in Bowman and Brooke and outside of Bowman and Brooke, people who continue to mentor me to this day from the Hennepin County attorney’s office and more through the Hennepin County Bar Association.
I’ve been involved with the mentoring program there since 2000 and I swear by it in the sense that I’ve learned a lot from other people who have either walked in the attorney’s shoes before me and either similar practice or other practices, but taught me a lot about civility and working with others. We’re a great litigation firm. Bowman and Brooke does know how to fight cases, but we also know how to work with opposing counsel. I don’t have people internally who have ever told me to be mean-spirited and act with malice and to really beat somebody down.
From a mentoring aspect, outside of the firm, there’s John Daly, for example, a 35-plus year personal injury attorney, originally from California. He’s been a great friend. He’s talked to me about how to do things right. I’ve been able to pick up the phone even though I’m doing defense work for personal injury cases. If I have a question, he’s happy to give me insight and have a nice dialogue and also he’s been one of those people who said, “Okay, you know I’ve supported you different times. Now I need you to help me out. Here’s a younger trainee that you need to talk to or a young law student.” It’s been wonderful because we have that relationship, but I’m happy to do it because John has, in essence, showed me how to be a good supportive mentor.
One of the things that I’ve always thought as important for mentoring it’s a two-way street. I can offer a lot of insight and attorneys like to talk a lot, but if you’re mentoring someone and you don’t actually ask them what do they want or where are they coming from or ask them, “Does what I say make sense? Does it apply to you?” I’m a products liability litigation defense attorney. My experience doesn’t always apply to all the practice areas of the people I meet, law students or lawyers, but I can say what I’ve experienced just generally in the law and does it help you or what are you looking for. I mean, some law students are simply asking should I be here. Should I be going through law school. I’m not there to convince them. I more want to be a sounding board because it’s a crucial thing. If you’re going to put the time and money into going to law school, you’re going to come out with what? What do you hope for?
I do the mentoring externship program at the University of St. Thomas, as well as I teach in that program as well. They have a coursework segment and I love meeting with these students to say “What are your hopes? What are your dreams?” I ask them a question and this is a tough one sometimes, “What’s your dream job?” Ask law students that and they might answer, “Well it’s to be a lawyer.” I say “No, no, but what really does that look like?” That helps them to think more about what they want and I think that dialogue and stuff helps me be a better lawyer, but also be a better person. When you’re listening and you’re actively listening and you’re trying to help them find the best course for them, I can’t show them how to get the job. I can’t show them how to be successful per se, but I can help them at least guide them along the way so that maybe they don’t make some mistakes.
There’s a great joy in mentoring someone who finds a success or that kernel of wisdom or that nugget that gets them forward. Not all mentoring relationships have been great. They go their course and you need to be aware that some mentoring relationships do come to an end. Others will grow and become a different thing. That’s been very important to me to watch as well. I’m kind of all over the board in answering that question, but mentoring itself, it’s not a scary thing if you’re open to it and it you’re also realizing that it truly is a two-way street and you could learn something from it.
I love younger attorneys and older attorneys who simply want to pick my brain about what I do or how do I market or how do I network. How do you try a case? It’s kind of fun to say that I have a little bit of wisdom and a little bit of experience that I can share, but I’m also trying to always get better and trying to improve as well. I try to share that with folks who I’m having a mentoring relationship with.
ML: If I’m a brand newly minted lawyer just about to take the bar exam, don’t have a job, how am I supposed to find a mentor?
Roshan Rajkumar: Ask. In all honestly, I’ve met with several law students who were going through that even in my class. They just happen to get maybe lucky or unlucky, they’re stuck with me as their adjunct for this mentoring externship class at St. Thomas, but I’ve told them, if you want me to be your mentor other than your faculty mentor because you have to, just ask. Set up a time to have coffee or let’s meet or right after class. I’m happy to do it, but I have to tell you I’m not seeking you out because you have to think do I fit with what you think. Do you like what you hear? Do you think I’m going to challenge you or am I just more of kind of like a talking head. That’s not going to be helpful if that’s the approach.
Really, a new attorney who’s about to sit for the bar, if they have concerns, they should ask attorneys that they meet. I say they should vet them in different ways. I know a lot of people, especially younger people who are Gen Y through Gen Z, they use the internet and they can figure who is who by looking at their social media presence. A lot of law students have reached out and said, “I saw you on LinkedIn, I saw you on Facebook, I saw your firm bio. I’d kind of like what you’re doing. Could I sit down and talk with you?” I’m really motivated by somebody who not only does their homework, but reaches out to me because I’ve always said I’m at least going to give you time for coffee or a meal and heck, I’ll even buy it for you and then we can talk and if it makes sense, great.
Or we talk and I realize that you know what? I might conclude that you’re going down a different road than what I can offer, but could I connect you to this person who’s someone who I trust, who also could be another mentor and it opens up the door. I don’t shut the door to me. I say, “We can still stay in contact, but this is what you’re looking at. Like employment defense litigation, I have somebody in this area who’s also a female and a diverse attorney. I think it would be really good for you to meet with her and I literally try and set up that relationship.” Then I of course always say, “I’m available to you.” You can never have too many mentors or good sounding boards. It’s just like somebody who has a good business practice has 10 people in the room that they bring together to talk about how they’re making their business grow.
In this way we’re all making our legal profession. Your legal journey grows by having good people around you. I never want to think that I have it all figured out because I know there’s people who have gone through stuff that I go through whether in a business setting, with a law firm setting or in a non-profit setting since I do a lot of that work that I can learn from. It’s always important to have those kind of mentors.
Another thing I have thought about: great mentors aren’t necessarily other lawyers. I’ve gotten better in a business side, but I actually having mentors who are in the business world who are not attorneys and they share insights. I can think more like a business person and that’s been really helpful as well, but that was very intentional on my part, finding people I felt I could relate with more in business areas close to what I’m doing who are willing to share their thoughts and ideas, so that’s been very important, too.
ML: If you could change the business of law or legal practice, how would you if at all?
Roshan Rajkumar: That’s a tough one. The first thing that came to mind when you said that, because I love the practice of law and what I do, but one of the things that I know is a killer is billable hours and billed rates. Not only billing your time and keeping track of it, which is a pain to begin with, with everything else we’re trying to do, but it also becomes a barrier to people when they hear that, “How much do you bill it an hour? Oh, too expensive, I’ve got to move on.” Sometimes we don’t have the flexibility to say I can give you a flat fee amount or I can give you a lower rate or how about I give you an option of somebody who’s lower rate here, but I will be in the background helping?
That’s one of those things. We’re not cheap and because I’m with a firm that has standardized rates and now I’m 15 years into practice, I don’t like broadcasting what my standard rate is and I know how much I bill under it for a lot of my clients simply because I love the work. The opportunities I have, the expertise I offer and I can be very efficient, but typically if clients only look at my hourly rate, I don’t think I’d be working with them. That’s one of those things that I think about those who can’t afford legal assistance who are looking to legal aid for low or no cost rates from attorneys who are like the Volunteer Lawyers Network and I do pro bono work at the Basilica. There are so many people who can’t afford and so many people look at the legal system as if you don’t have a lawyer and you can’t figure it out, you’re pretty much lost. That’s a tough thing.
ML: Do you agree a lay person can navigate our legal system without a lawyer?
Roshan Rajkumar: I don’t. I really don’t. People do pick up the phone and call me, many friends or people who say you’re the only attorney I know, so I referred this person to you, could you talk to them? I’d talk to them and I’d listen. It’s a family law issue. I’m dangerous to give you any advice and that’s not my expertise, so I’m very honest about this, but I’m going to refer you to some people. Here’s some options and what I have to do is I go here’s this person who I really like, reasonable rates, but you’re going to probably have to have a retainer in place or here’s someone who will work with you on an alternative fee base, but has a little bit less experience, but they’re willing to give you that opportunity, or here’s someone who’ll simply take the case that you’ve got and they’re going to charge you a certain amount and that’s all it’s going to cost you no matter what it looks like, but this is what you’re going to be driving towards.
And sometimes those who represent themselves pro se are just so angry with the system and if they don’t have somebody even shadowing them, which I know in the Hennepin County system, they can do, the pro se litigant can’t figure it out or they don’t want to and they just throw up their hands and they get even more antagonistic. It makes very tough for myself and my clients to get to a resolution.
I’ve tried some cases against pro se litigants where I look at it and I’m going this is nightmare. They’re their own worst enemy. If they had somebody at least talking to them who kind of understands where they’re coming from, but also can explain the ropes, it can be helpful. There’s one extreme where I have an individual in Wisconsin. He has a criminal background, but he’s what some call a jailhouse lawyer. He knows the system well and he uses the system well and he uses it to keep cases going forever because he’s basically trying to see if he can wait out the other side until they’ll finally give him what he wants. That’s a sophisticated individual who’s taking the time and he’s got some other resources in place that are helping him file papers and so forth. He’s an interesting guy. I’ve been dealing with him for over a year in one case that’s now on appeal.
ML: Finally, give a message, any message you want to the Minnesota Bench and Bar. You’re standing on a soapbox. What do you have to say?
Roshan Rajkumar: The Minnesota bench and bar, overall, we’re a pretty collegial group and I have been welcomed since Day One. Nobody turned their backs on me. Nobody said “You’re not worthy of being here.” I’ve never felt discriminated against for being a diverse attorney. I’m actually pretty lucky and happy that I chose to come back to Minnesota, to go to law school here, and to choose to practice here rather than going somewhere else because I’ve had a lot of great opportunities, not just because I’m at a great firm, but I’ve had a lot of great mentors around me, most who don’t look like me, who have invested time and effort into me, and given me opportunities to become a better attorney, whether at the Hennepin County Attorney’s Office, or at Mahoney & Hagberg, or now at Bowman & Brooke.
Then also it’s a little bit due to my teaching — coming back to how I’ve been raised and how I was taught at Boston College. It’s my turn to do that. I always feel like it doesn’t just stop — that I got so lucky and I have a great career — I just keep going forward. Now it’s just, “Who do you bring up with you and behind you?” I hope we always continue to do that in the Twin Cities and in Minnesota and that our bench and our bar, all of us, work to make better attorneys, especially with the young attorneys coming up because it’s a different generation and different generations coming into this practice can become very quickly disenchanted with it or feel like it’s just so old and archaic. We have got to do something to change it. But we also need to work with our young attorneys coming up to know that some things are never going to change no matter how much you want it, too. How do you work with that in the frame work that makes sense to you?