haircut-33187_640The City of Minneapolis battled with a plaintiff in a civil rights case, negotiated a settlement and included in the settlement an offer to pay the plaintiff’s lawyer, $49,999. The plaintiff’s lawyer would not agree to accept anything less than $52,088.50.  So they went before U.S. District Court Judge Patrick J. Schiltz (D. Minn.) to resolve their differences.

You might think that Judge Schiltz would award $52,088.50 or $49,999 or some amount in between.

You would be wrong.


Crystal_ball_by_Ron_BodohUpdated post (August 22, 2106): Minnesota Litigator notches another successful prediction in a posted prediction last March in the Storms v. Mathy Construction case discussed below after the break. The Minnesota Supreme Court reversed the intermediate Court of Appeals last week.

The point of my original post was that I believed that the trial court reached the right result for the wrong reason, the intermediate court failed to reach the right result with flawed reasoning, and the Minnesota Supreme Court, I predicted, would reach the right result with better reasoning than the trial court did, reversing the Court of Appeals.

We do not know the legal fee arrangement between Plaintiff Storms and its lawyers but, if Storms paid hourly for this, it seems they may have paid dearly for its ultimately unsuccessful $327,064.42 claim. Imagine Storms had started with omniscient lawyers who studied the legal issues and reached the conclusion that the Minnesota Supreme Court eventually reached . Counseled by the “omniscient lawyers,” presumably Storms would have walked away from the lawsuit before even bringing it. Presumably “omniscient lawyers” would be the better lawyers, the best lawyers, in fact. But which lawyers would make more money?


Minnesota Litigator focuses on “news and developments” in Minnesota civil litigation but it tends to be even more focused on the kinds of Minnesota civil litigation that its writers practice. As a result, there is very little focus on family law, intellectual patent litigation, ERISA litigation or other areas of law outside of the zone of danger of the authors’ main areas of practice.

On the other hand, I deviate from time to time and today I note a decision in a recent immigration-related decision: Dahhane v. Stanton et al.. The case concerns a couple who met on-line: Adam Dahhane, in Morocco, and Linda Lorraine Stanton in Mankato, Minnesota. First came love, then came marriage, then came a child in a baby carriage.

As in 42-45% of marriages between American citizens, then came divorce.

Then came Mr. Dahhane’s lawsuit against his ex-wife and ex-mother-in-law based on their sworn promises to be Mr. Dahhane’s “sponsor” as part of the immigration process. To get Mr. Dahhane into the country, Ms. & Ms. Stanton committed to support Mr. Dahhane at 125% of federal poverty guidelines…


SpankingU.S. District Court Judge Patrick J. Schiltz (D. Minn.) must have stunned Derrick Weber of Messerli & Kramer when Mr. Weber sought sanctions against his adversary, Bennett Hartz, along with Hartz’s client, Ms. Bendickson. The Court, in response, came down on Weber like a ton of bricks.

The case involved debt collection by Messerli & Kramer and its alleged agreement by phone to take money from  the bank account of the alleged debtor, Ms. Bendickson. Having allegedly received her authorization by phone, Messerli then withdrew the money by printing out paper checks to itself, endorsing them to itself, and depositing them.

Bendickson’s lawyer, Hartz, questioned the legality of this circuitous financial transaction and Weber, in return, essentially challenged Hartz’s right to question the transaction, threatening Hartz and his client with sanctions. When Hartz asked to hear the recorded telephone conversation, Weber refused and, instead sought sanctions against Hartz and Bendickson.

[I]t is absurd to argue, as Messerli [& Kramer] does, that Bendickson should be sanctioned because she did not immediately dismiss her complaint after Messerli drew her attention to a single, dubious, highly qualified, non‐binding bulletin issued by the CFPB  [that is, supposed legal authority for Messerli’s position]— especially when Messerli unreasonably refused to allow her attorney to listen to the recording that was the linchpin of its defense…if the Court were forced to sanction anyone, the Court would sanction Messerli [& Kramer], not Bendickson…It is probably true, as Messerli [& Kramer] repeatedly points out, that it acted within its rights in refusing to provide the recording to Hartz and in running to court. But the question of what a lawyer has a right to do is not the same as the question of what a lawyer should do. This Court expects that members of its bar will treat each other civilly and make every effort to resolve disputes before inflicting costs on their own clients, their opponents, and the Court. Messerli’s behavior fell well short of this expectation.

(Emphasis added.)


newsboy-146954_1280For more than five years, I have repeatedly chided the Star Tribune for running stories that rely heavily on court documents but failing to link to the documents themselves. Last week they did it again, this time in the context of a $3.5 million award based on sexual-orientation discrimination in favor of Mr. Stephen Habberstad against two small banks, Kimberly Habberstad (his ex-wife), Susan Boschetti, Terry Boschetti, David Dovernberg, Maureen Denges and Phyllis Sieveke.

On the one hand, I suppose I can understand the Star Tribune’s decision. The court’s “Findings of Fact, Conclusions of Law, and Order for Judgment” is a 92-page document. It is a realistic assumption that very few Star Tribune readers will read it at all and fewer still in its entirety.

On the other hand, the Star Tribune journalist wrote that the judge “meticulously separated fact from fiction” in his ruling but she failed to link to the judge’s decision so readers could judge the judge’s meticulousness for themselves. In this way, the journalist, presumably unwittingly, improperly biased readers as to the accuracy of the judge’s decision. The journalist, in effect, appears to have sided with the judge’s opinion that “Stephen Habberstad was terminated because he is gay.” This, of course, could be quite hurtful and unfair to the defendants if, as a matter of fact, the decision is wrong.

To be fair and clear, the Star Tribune story did quote a defense lawyer saying, “We couldn’t agree more with Mr. Habberstad that you shouldn’t discriminate against anyone because they’re gay or any other reason. And [the defendants] didn’t….” In my view, the article as a whole, without giving readers the opportunity to read the decision for themselves, did a disservice to the defendants. At least in this reader’s opinion of the court’s opinion, the underlying story was far more complicated.


GunslingerUpdate (August 12, 2016): Although Susan Humiston, the new director at the Minnesota Board of Professional Responsibility, seems to be making great strides at speeding up the system, it remains concerning that the discipline of Mr. James C. Duchon took as long as it did (see below and the linked petition of discipline).

What is even more stunning is that Mr. Duchon, a suspended lawyer with a publicly accessible discipline record, was able to use the internet to attract several clients as you will note in the attached petition.

The internet is our 21st century analog to the Wild West, a vast ungoverned expanse in which rogues, charlatans, and scammers creep in and out of our virtual communities to fleece vulnerable people.

Without infringing every person’s constitutionally protected freedom of speech, can Minnesota lawyers and those who work with them (legislators, judges, bar associations, or others) do anything eradicate schemers who attract Minnesota clients with slick websites that tout non-existent legal expertise?

Less egregious but more pervasive and arguably more impactful than suspended lawyers luring unwitting clients, we have lawyers with little or no expertise in anything other than SEO (search engine optimization) taking business away from qualified but less tech-savvy lawyers.



Legal Mal Insurance SnippetInitially, I left question 4(d) blank because the answers for 4(a) through (c) were answered no. But the computer system would not let me leave 4(d) blank. It forced me to answer even though the question presupposes a “yes” to a previous response…

You would not think that professional malpractice insurer would be so sloppy in generating these forms? ANSWER: YES or NO.



Cloud_to_ground_lightning_strikes_south-west_of_Wagga_WaggaNorthern States Power (“NSP”) has an easement to run power lines over property owned by Chanhassen residents, Jarvis Jones and Laura Kaplan (“Jones/Kaplan”). In October 2014, NSP asked for permission to come onto the Jones/Kaplan property to prune an oak tree to clear it from a powerline, a right that NSP held as part of its easement.

Jones/Kaplan objected. Following the objection, NSP had additional survey work performed after which NSP concluded that it, in fact, did have the right to trim the tree. And, after the additional work, NSP concluded that it had to take down the whole tree, rather than just pruning it.

Jones/Kaplan took NSP to court, in essence arguing that NSP decided to chop down the whole tree as “pay-back” for Jones/Kaplan’s resistance to NSP’s initial request to come on the property to prune the tree. Before the district court, NSP argued and persuaded the district court that its decision to chop down the tree was reasonable – that it was based on legitimate safety concerns. As we all know, trees and power-lines do not play well together.

But the district court did not address whether NSP’s actual motive was “pay-back” for the property owners’ costly tree-hugging objections to the original pruning plan.


Bob Cattach

Bob Cattach

Update (August 5, 2016): A jury decided against Bob Cattanach in his lawsuit against the BNSF railroad company. Today U.S. District Court Chief Judge John R. Tunheim (D. Minn.) rejected Cattanach’s bid for a new trial

Update (September 29, 2015): Bob Cattanach’s gets gets some real ink (a nice article by Randy Furst in the Star Tribune today.)

Update (September 21, 2015): I am a bike-rider in his fifth year of year-round bike commuting (go to this page and scroll down) and I have been known to say, “If you have not had a bike accident, you’ve not ridden your bike enough.” A cast-off aphorism like that is meant to be witty or thought-provoking (both of which are admittedly debatable). It’s a kind of humble-brag, often used to preface warriors’ baring their scars and telling of the crashes they have survived. Another lawyer humble-brag is, “If you haven’t lost trials you should have won or won trials you should have lost, you haven’t tried enough cases…”

I am pretty sure that Bob Cattanach has earned the rights to these humble-brags and many more. Linked is a decision in which Cattanach and his lawyers beat back the railroad’s attempt to win the case on summary judgment on Cattanach’s complaint against the railroad based on a bike accident.

(Sidetrack to BNSF (or whomever is responsible for the track at this location): I am concerned about the track at Beltline Boulevard in St. Louis Park Minnesota where it crosses Beltline a few feet from the Cedar Lake Bike Trail. That’s a frigging chasm you are forcing bike-riders to cross over. The ties are rotten. Don’t wait until someone kisses rail head. Time to mind the gap…) [August 5, 2016 Ed. Note: BNSF fixed this problem within 30 days of this post. Post hoc ergo propter hoc???]

Read on for the original Minnesota Litigator interview with Bob Cattanach of Dorsey & Whitney LLP.


Hal9000In July, I posted on “computer assisted review” (CAR). After that, I had the pleasure of a meeting with Ben Legatt of Shepherd Data Services. Shepherd Data offers a “CAR product” and Ben offered to discuss how it works. The following is an edited version of my talk with Ben about some of the mechanics of how CAR works.

[Full Disclosure: Shepherd Data is a sponsor of Minnesota Litigator. This post, however, is NOT PAID ADVERTISING. Shepherd Data neither paid for this post nor requested that Minnesota Litigator write this post.]

ML: Help me understand how “CAR,” or computer aided review works.

Ben Legatt: Essentially, CAR software takes the entire universe of documents, or the documents that you actually want to analyze, and it treats all the documents as “a bag of words,” you might say. It doesn’t care what language documents are in. It doesn’t actually understand the words at all, but what it does is it looks at the relationship of words to other words in your data set and the proximity of different words to each other.

It creates essentially a matrix of concepts. What it can then do is reorganize, in a way, all the case documents in your database by how conceptually similar they are. The concepts are derived from that matrix.

Documents where the concepts are similar are grouped together in the matrix, in a sort of three-dimensional matrix. The documents that are less conceptually similar are grouped farther apart from each other in the matrix in a different area. Essentially what it does is it gives you different ways to search for your documents by concept as opposed to just what happens to be on the face of the document.