Impatiens Hawkeri, b/k/a Impatients...

Impatiens Hawkeri, b/k/a Impatients…

Update (October 12, 2015): Rick Linsk gives an update in the Minnesota State Bar Association’s monthly, Bench & Bar this month on the right of Minnesotans to have remote internet access to public court records: 

The upshot: As early as July 1, 2016, or else by January 1, 2017, all civil case documents and post-conviction criminal case documents from Minnesota courts will be remotely accessible.

This is way overdue in my opinion but  much better late than never.

Update (September 11, 2014): It’s been 150+ days since I asked Minnesota Supreme Court Chief Justice Lori Gildea when Minnesotans can expect to have a e-filing system that allows for easier and cheaper public access to court records. (My original post about this is below.) When I had the chance to pose the question to Justice Gildea, she was emphatic that she shared my impatience and conviction that the system needs to be more widely, easily, and cheaply accessible.

I wonder if Justice Gildea’s patience is wearing thin as mine is, along with many Minnesota journalists, Minnesota lawyers, and all citizens who believe that the vast majority of court records are public property. We should all have easy and inexpensive on-line access to them. NOW.

This impatience is heightened because the federal system, PACER, has been around for a decade or so and it works very well.

What is going on?


There will be bloodEconomic events cause shock waves as dramatic as earthquakes but the reverberations are not physical and they do not resound from epicenters  by the laws of physics.

The North Dakota Bakken formation oil boom (and, when slowed, the bust for some players in the market) has predictably resulted in a litigation land rush for North Dakota and Minnesota lawyers (and also other jurisdictions, for sure).

In fact, even I, who could not until recently describe the difference between a flex rig from a  lefty oil rig with hurricane disk, have found myself with a number of cases slicked with North Dakotan black gold (and none, incidentally, in any way resonating resinous with Acapulco gold, which has presumably produced a hilarious up-tick for famished lawyers in other states due to their own particular oil booms).  Unfortunately, though, Minnesota Litigator policy prohibits any discussion of my own cases except in extraordinary circumstances with client pre-approval so I by-pass any details my own clients’ sticky situations.

When reverberations or waves are forever rather than ephemeral...

When reverberations or waves are forever rather than ephemeral…

But certainly many of these Bakken-tied cases are coated with the same sticky patina of money-gushing deals in which one or more parties feel like they have lost in a frenetic high-stakes game of musical chairs — deals in which some have made out like bandits and others think (rightly or wrongly) that they are the bandits’ victims.


Photo by Adam Paris

Photo by Adam Paris

Update (October 11, 2015): Star Tribune coverage: “It takes a whole lifetime to gain a reputation, and five minutes to lose it.”

Original post April 2, 2015): Organized religion provides many people with important support and community from cradle to grave (and perhaps beyond that). But we have all heard of (or experienced firsthand) the drama of religious communities torn apart by in-fighting, power struggles, and bitter enmity.Whispering

Henry and LaVonne Pfeil might have experienced many hours of solace, community, and spirituality at St. Matthew Evangelical Lutheran Church of the Unaltered Augsburg Confession of Worthington, Minnesota but, at a certain point, there was a schism. In August, 2011, St. Matthew excommunicated the Pfeils, having concluded they were guilty of “slander, gossip, and speaking against [Pastor Braun, Pastor Braun’s wife, St. Matthew, and Pastor Behnke],” to choose just a few of the handful of wrongs of which the Church condemned the Pfeils before the entire congregation.

[An aside: do you think there is a Lutheran Church of the Altered Augsburg Confession anywhere? Would that be more commonly known as a Calvinist Church?]

The Pfeils (represented by Minneapolis lawyer, Zorislav Leyderman) countered with a lawsuit claiming that they had been defamed by Worthington’s St. Matthew Evangelical Lutheran Church of the Unaltered Augsburg Confession. The Minnesota Court of Appeals granted St. Matthew’s motion to dismiss based on the “ecclesiastical abstention doctrine.”  The Minnesota Supreme Court, however, has recently granted the Pfeils’ petition for further review.


Cow in WinterA few years ago, a younger lawyer emailed me that she was shortly to be on a “vaca.” That’s the Spanish word for a cow. It is also, I then learned, sometimes pronounced “vay-kay” and then it means “vacation.”

Minnesota Litigator will be out to pasture on a vaca from October 3-10 but, after that, will be back serving up more rare-to-well-done Grade A Prime Blog Beef.

In the mean time, check out these excellent other law blogs:

(or just buckle down and get back to work?)

CatAndMouseChaseJeorenMoeszI have recently posted quite a bit about St. Jude’s lawsuit against Mr. Grubiak in which St. Jude plays the role of betrayed employer and Mr. Grubiak, the black-hatted turn-coat (from St. Jude’s perspective).

Imagine my surprise to stumble across Sorin v. St. Jude, wherein Sorin plays the role of betrayed employer and St. Jude, the shameless poacher (from Sorin’s perspective). Mag. Judge Jeffrey J. Keyes, U.S. District Court (D. Minn.) has recently allowed Sorin to amend its complaint to add a claim for punitive damages. This is rather rare in Minnesota case law.

There are some juicy tid-bits in the opinion such as a $1,200 meal tab for the courtship of “several” Tampa physicians.

Query: wouldn’t you much rather believe that your heart doctors are picking their medical devices to implant into you based on their belief that they have outfitted you with the best device rather than based on their attachment to the device salesperson and a $1,000+ dinner tab? (I suppose it is possible that there is a medical device salesperson whose technical knowledge and expertise is worth as much or more than the particular device sold…Really???)

HourglassUpdate (October 1, 2015): Below, I argued for a permissive and flexible application of a rule concerning a scheduling order but, for reasons stated by the judge from the bench (but not published in a written memorandum or order), U.S. Mag. Judge Hildy Bowbeer (D. Minn.) denied the plaintiff’s request to amend its pleadings after the deadline for amendment of pleadings.

The day the judge ruled, there was also an unsuccessful settlement conference in the case. But just three days after the unsuccessful settlement conference and the denial of plaintiff’s motion for leave to amend, the lawsuit settled. Today (three days after the trial was supposed to have started), the lawsuit was dismissed.

Original Post (July 28, 2015): Which is more just: allowing for “substantial compliance” or requiring “strict compliance”? Requiring “actual knowledge” or allowing for “constructive knowledge”?

(“Constructive knowledge” is a legal fiction whereby courts can avoid requiring “knowing or proving what is inside a person’s mind” and, instead, courts can require certain steps be taken that would tend to ensure notice and knowledge, after which the court simply assumes knowledge, “constructive knowledge,” that is (really, “constructed knowledge,” “imputed knowledge,” or “well-if-you-didn’t-know-X-then-that’s-your-problem – we’re going to pretend you did”).

How about deadlines? Do you favor courts’ “strict” application of the rules or “flexible” application? Some fans of “strict” application would call “flexible” application, “non-application.”

How about, for example, when a party wishes to amend a pleading (that is, a complaint, an answer, a counterclaim, and the like) after the case schedule deadline? Should courts apply those rules strictly or should they bend them in the name of justice?


Jewel Osco Congratulates Michael Jordan ADJPGFrom time to time, Minnesota Litigator busts out of its jurisdiction (defined as “News and Commentary on Minnesota Civil Litigation”) to neighboring states or to bloviate randomly as to some other distantly related subject matter. Minnesota Litigator is particularly prone to wanderlust when Minnesota civil litigators are in the news outside of Minnesota, and even more so if they are in high-profile cases.

So, in light of that, a brief note on Michael Jordan v. Jewel-Osco et al., because of Jewel-Osco’s ad, reproduced here, on the left. Lead counsel for Defendants in this case is our own Tony Zeuli of the power-house intellectual property law firm of Merchant & Gould. [Editor’s full disclosure: Tony is a friend of the author.]

Sports Illustrated ran a special issue for Michael Jordan’s induction into the Basketball Hall of Fame and Jewel-Osco paid for this congratulatory ad to the left, without paying Michael Jordan for the right to congratulate him in print with this ad.

How dare Jewel-Osco???

Bear in mind: Michael Jordan is no longer a professional athlete. He probably has NO INCOME anymore. He’s probably destitute. I am speculating. I do not really have first-hand knowledge but, seriously, he’s probably unemployable, between his inability to play at pro level ever again and the ruckus it would cause if he were to work in a normal office setting. I am sure that would be quite disruptive. I suppose he could work at a call-center or something but even then, he’d probably have to work from home.

The previous two paragraphs were intended ironically.

I am sympathetic to Jewel-Osco and disappointed in MJ and his handlers. So, apparently, was the trial court, by the way. The trial court threw the case out, only to be reversed on appeal to the United States Court of Appeals for the Seventh Circuit. And now the case is back at the trial court and headed for trial on December 8 in Chicago.

Picking a jury in a case like this would seem to me to be the wholly enchilada in this case. Some, whether overcome with awe at Jordan’s fame or profoundly respectful of the “right of publicity,” would undoubtedly lean toward a substantial sum for Jordan. Others (like me) would lean toward sending a clear message of humility to the mighty (whether Jordan himself or the legion of lawyers, promoters, branders, etc.who make money by “protecting” Mr. Jordan’s “right to publicity”).



Evil Satan DevilUpdate #2 (Sept. 30, 2015): And now we know how much it cost Plaintiff Great Lakes Gas in attorneys’ fees to fight in the case, described below, for six years (over $5.1 million). Whose pocket should that come out of? Whose pocket will it come out of? Stay tuned….(I bet I could have done it for less than $5 million.) 

Update (Sept. 30, 2015): The previous “Pyrrhic post” was about a trial win that probably cost more than the plaintiff was able to recover.

The case discussed below falls into the other category: a case where it looks as if an investment of millions of dollars of lawyer time was cost justified.

The recent trial in a case that went for nearly six year resulted in a jury verdict (after 90 minutes of deliberation) that the applicable discount rate was 4.30%. As discussed below, this did not give Minnesota Litigator the slightest clue of what kind of money they were fighting over. This past week, however, we got our answer: somewhere in the neighborhood of $36-37 million.

Update (August 19, 2015): The case, discussed below, was litigated for nearly six years. Trial on the last remaining issue, the appropriate discount rate, took one day. Jury received case at 11:09 a.m today and returned a verdict at 12:39 p.m. today, determining the discount rate to be 4.30%. I would be curious to know what the “swing” was — the likely range of the jury’s decision in dollars — to determine whether the half decade (and then some) of litigation was really worth it for the litigants. (I noted that plaintiff’s expert was $600/hour, incidentally and there have been 969 entries on the docket of this case since it was filed in October, 2009.)

Original post (August 17, 2015): For those of us Minnesota litigators with relatively small and legally unsophisticated clients, there is often a discussion early on in the attorney/client engagement about the high cost of civil litigation and the high uncertainty of civil litigation.

“What? You mean this could cost more than TWENTY THOUSAND DOLLARS???!!!” some potential clients will say, sincerely stunned.

“HUNH? We could lose even though THE GUY ADMITTED HE TORTED ME OR WHATEVER YOU CALLED IT???!!!” another potential client might cry out in confusion and despair.

Actually, it’s a whole lot worse than that. The more you study any particular legal dispute, the more complexity you find, and the more uncertainty you are likely to unearth.

“Hold on, Mr. Minnesota Litigator,” you counter, “What about a slam-dunk debt collection? You can’t guaranty a win even in one of those cases? You cannot guaranty or cap fees???”


CatAndMouseChaseJeorenMoeszturkey-520632_1280Update (September 29, 2015): Linked is U.S. District Court Judge Ericksen’s pretrial order in the St. Jude v. Grubiak lawsuit, discussed below.

A couple of things are notable: (1) Motions in limine are due right before Thanksgiving and responses to motions in limine are due right after. In light of the litigation styles on both sides of St. Jude v. Grubiak, one can predict a slew of motions to draft and to respond to. Time for these trial teams to call in reinforcements for the feast preparation. Time to pull the plug on all out-of-town trips; (2) Note that this pretrial order actually applies to two different lawsuits at the same time. So, as much work as this looks like for St. Jude and Grubiak lawyers, the Court (which has far fewer lawyers) is doing double-time (though we have to assume that the other case will not generate the paperwork of the Grubiak case).

As I tuck in my bib, loosen my belt, and tighten my goggles before throwing myself into the Thanksgiving feast this year, among my many blessings, I will count not being involved in either of these cases…

Update (September 11, 2015) (under the headline: St. Jude v. Grubiak: The “Duty to Rat” And Top Card Minnesota Civil Litigator Combat): St. Jude brings a motion for partial summary judgment and a motion to exclude a Grubiak expert. Grubiak brings a motion for summary judgment and a motion to exclude a St. Jude expert. U.S. District Court Judge Joan N. Ericksen denies them all this week. Priceless.

Well, maybe not priceless. In fact, undoubtedly very pricey. Should the litigants be annoyed with their lawyers for the pointless (in hindsight) lawyers’ fee fest? 20/20 hindsight is always dicey and we will never know the extent that decisions were client-driven or lawyer-driven (or a combination with informed consent). Plus, who knows what kind of fee arrangements are in place? Maybe the money’s coming out of the lawyers’ pockets for all we know. (I doubt it.)

Having said that, I have to say I envy the large firm lawyers with the well-heeled clients who do not seem too bothered by paying for losing motions. I have to assume that because, in my view, at least one of these motions was a real stretch.

I also note a nestled “zinger” or “bench slap” in the order at pp. 8-9 where Judge Ericksen appears to chide Grubiak counsel, “The Court’s own research revealed cases that are inconsistent with the authority cited by Grubiak….The issue is not adequately briefed. The Court declines to dismiss SJMSC’s claims at this time…” (OUCH.) (In fact that’s maybe a little slap to all counsel in the case, right? Grubiak seems to be chided for failing to come up with “inconsistent authority” but the Court makes it seem like St. Jude’s counsel missed the cases as well?)


Bob Cattach

Bob Cattach

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…)

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