One Productive Use of Hot Air; but, contra, see, e.g., Bloviating Lawyers.

Update (September 9, 2019): Has the hot air in Streambend Properties v. Ivy Tower Minneapolis finally breathed its last breath? (Please allow us a mixed metaphor from time to time.)

In the linked 6/3/19 petition for Minnesota Supreme Court review of the dismissal of the Plaintiff’s claims (affirmed by the intermediate court of appeals), Plaintiff appears to argue that the mere fact that very few breach of contract cases go to trial is a per se violation of constitutional rights of due process and equal protection (see here at p. 1).

The petition also refers to the Minnesota Court of Appeals’ “sua sponte shenanigans” (see here at p. 5).  The petition concludes, “The conduct of the district and appellate court is reprehensible. Shed those iron boots of oppression for humble sandals. Walk until your feet are heavy, but your soul is light. Tread the trail from Saul to Paul.”

Practice pointer: This may be even worse than hot air; it is borders on noxious. This is not legal argument.

For a stark contrast, see the response to the petition.

Unsurprisingly, the Minnesota Supreme Court denied the petition.

Update (November 17, 2017): The plaintiffs in the case described below (and Mr. Jerald Hammann, their owner) just will not give up. Hammann has pursued this case for five years and it has been a loser all the way along. The Eighth Circuit, seeing the case for the third time has thrown it out again. (Note that the appeal appears to have been submitted on Tuesday, Nov. 14, and the Eighth Circuit decision was filed two days later.) 

Update (February 3, 2014): On-going litigation for over five years and it appears to have been entirely in vain.  Recounting the saga is too painful for those who have had to preside over it. They have to refer back to earlier decisions in this labyrinth of futility rather than re-re-recite them.  

The U.S. District Court (D. Minn.) did not grant defendants’ pleas for justice (i.e., their requests for sanctions against the plaintiff for allegedly non-meritorious claims), though one can imagine their outrage given their years of defending against claims that could not ever get past motions to dismiss.

Original Post (August 12, 2013) (under the subject: “On A Frustrations of Civil Litigation and a Practice Pointer”): One of the greatest frustrations of civil litigation is that the advocacy/adversarial process sometimes seems to run directly counter to the obviously important ideal of clear communication.

A defense counsel asks a plaintiff’s counsel what proof the plaintiff has for his damages and, in response, gets a diatribe about the defendant’s callousness and dishonesty.  A judge asks a lawyer for any guiding precedent and, in response, gets a worthless lecture about an unpublished legal decision from some foreign court that the judge just implicitly asked the lawyer not to discuss.

Practice pointer:  No one is fooled.  Save your breath and everyone else’s precious time.

Some judges (and adversaries) will let you know very quickly and clearly when you are wasting your time and theirs.  However, many judges, in my experience, will look at the bloviator with “judicial restraint,” an opaque blank expression, a strategy that I assume is time-tested and, on balance, thought to be the most humane and maybe ultimately the most time-saving angle.  (Many bloviators, when they are directly told that they are off the mark and wasting everyone’s time, still don’t get it.  They respond by explaining (in vain, of course) why they believe what they are saying is important.)

Here is the critical point:  no one has enough time.  If a court asks you a yes or no question, the court wants a yes or no answer.  If a court throws out your complaint because you plead fraud against a crowd of people without differentiating who said what when, your amended complaint should say “Defendant X said Y on DATE, which was false at that time and Defendant X knew it.”  Even better if the amended complaint says that clearly, succinctly, and up-front.

The plaintiffs in Streambend Properties II, LLC, et al. v. Ivy Tower Minneapolis, LLC, et al., have been warring before U.S. District Court Judge Joan N. Ericksen for three years now over a building development that went badly and the case has not been going well for plaintiffs.  Judge Ericksen has already thrown the plaintiffs’ case out once, that decision was reversed on appeal, but now Judge Ericksen has tossed the case out a second time.

Judge Ericksen’s order dismissing the second complaint was quite clear: plaintiffs’ complaint failed because plaintiffs “made general allegations of misconduct against [defendants] as a group instead of specific allegations of each defendant’s misconduct.”

Plaintiffs, in response, submitted a proposed third amended complaint.  It is a 94-page complaint.  Where does it say, “Defendant X said Y on DATE, which was false at that time and Defendant X knew it”?

Heckifino.  I tried to find it without success.  It might be there somewhere; I do not have the time to comb through.

Would it not have been better to either grab the bull by the horns directly?  If there is a disagreement as to the requisite elements of a pleading (there is), would it not have been better to simply appeal (again) rather than submit a third amended complaint that fails to respond clearly if at all to the fundamental infirmity in the prior complaint (or so thinks the court)?

I conclude with an important disclaimer.  It is possible that my superficial understanding of the Streambend case in all of its complex glory has caused me to be unfair to plaintiffs’ counsel and their obviously hard work in this case.  But I believe my rule of thumb (roughly, “get to the point”) is still worth something even if the Streambend case might not be an example of its breach.

Leave a Reply

Your email address will not be published. Required fields are marked *