Evelyn Francis McHale, Age 20 at death, photo by Robert C. Wiles

Evelyn Francis McHale, Age 20 at death, photo by Robert C. Wiles

I follow ethics issues for Minnesota lawyers fairly closely because I find it interesting and because I find myself with plaintiff’s side attorney malpractice cases from time to time.

I think alcoholism is the single greatest cause of attorney malpractice. Sometimes, it is said, a person has to “hit bottom” before he recognizes he has a problem. Quoting my own post from a few years ago, “The expression is a little off, however.  Hitting bottom is dying.  No matter how much alcoholics have harmed their lives (and those who love them), they can fall still further (or, one hopes, can still recover), until they are dead.”

So, when should you conclude that you have hit “rock bottom”?

I have previously covered the successful appeal that Minnesota attorney Mark Alan Greenman enjoyed when he was charged with drunken Segway driving. This week comes news of his suspension for practice. The list of malfeasance is long. The penalty for Mr. Greenman was severe. His plea for leniency based on an admission of chemical dependency problems did not get him much sympathy.

Alcoholism can be a crippling and even fatal disease.  If you are a Minnesota lawyer and you or someone you know needs help, go to Lawyers Concerned For Lawyers for help before it is too late.

Bill Griffith's "Zippy the Pinhead"

Bill Griffith’s “Zippy the Pinhead”

More or less true anecdote: Two companies spent over $200,000 each on attorneys’ fees and expert fees heading into trial on a narrow patent dispute and the multiple million dollar dispute hinged on the words, “operates via buoyancy.”

Each side hired experts who, with the help of top-tier lawyers, tried to walk the jury through different ways to understand the meaning of “buoyancy,” as the word, “buoyancy,” was used in the relevant patent.

After each side took several days to put on their respective cases, the matter was given to the jury to decide. The jury sent out a note as they deliberated. “What does ‘operates’ mean?”

Neither side had devoted a minute of their presentations to this part of the disputed patent words.

You cannot make this stuff up.

Trial lawyers have to be ready for anything. They have to think fast and they need to act fast. And if something odd happens at trial or in the immediate aftermath and you don’t deal with it quickly, you can lose the chance for good. The lawyers in the buoyancy shipwreck never saw it coming. They probably never had a chance to avoid the hidden risk of jury confusion (if, in fact, the jury was confused (maybe it was the lawyers and their clients?)). but in another recent case, trial lawyers seem to have missed a narrow window of opportunity to fix a jury deliberation snafu…


Mystery_January_1934Judging from Hollywood, television, and pop culture, it sometimes seems that innocent people are constantly falsely charged with (or at least suspected of) crimes. In almost every mystery drama, the evidence points to Red Herring as the culprit. It takes our hero, a character with supernatural powers of deduction and observation, to look past the incriminating distractions to uncover the actual cleverly concealed malefactor.

Sometimes, “Red” is covered in blood, his prints are on the weapon, his alibi is “implausible” (to say the least), and he has every motive in the world….


In the real world, no doubt that this actually happens: the evidence appears overwhelming, the accused foresees a high probability of a guilty verdict, but he is innocent. What should he do? Confess to the crime he did not commit? Is there a way by which he can avoid the trial and just say, “I won’t admit to something I didn’t do, but I don’t want to go to trial?”


traces-69808_1280The Fagen v. Exergy lawsuit has been the subject of several prior Minnesota Litigator posts. A number of the prior posts have to do with claimed “urgency” in the case, a feeling that apparently only Defendant Exergy and its legal counsel share lately.

U.S. District Court Mag. Judge Steven E. Rau denied Exergy’s motion for expedited hearing on its motion to add another party one year after the deadline for adding new parties this week. (And, today, he denied the motion to amend “without prejudice,” meaning Exergy gets to try again…)

See the footprints in the snow in the picture? Those symbolize the withdrawal Exergy’s previous local Minnesota counsel, Faegre Baker Daniels. Faegre Baker Daniels withdrew from the case shortly before Exergy brought its latest motion, as Fagen counsel notes in the attached blistering letter to the Court filed this week (see Point # 4).

Litigators are familiar with some clients’ processions of lawyers. The stream of models down the catwalk often represent progressions to less and less expensive lawyers as the fiscal carnage of lengthy litigation grinds on (noted here). But lawyers withdraw for other reasons as well, of course. For example, they might not feel comfortable with lead counsel’s working style or legal strategy. They might have a client communication or cooperation problems. Etc. Etc.

As for the withdrawal of the Faegre Baker Daniels lawyers as local counsel for Exergy, we only see the evidence of withdrawal, not the reasons behind it, which will very likely be kept indefinitely confidential. But I think it is fair to suggest from the history of this case and from the contents of the attached letter that this case has at least a faint whiff of a potentially noxious quagmire. There are probably other more promising opportunities for Exergy’s exiting high-powered Minnesota legal team…

"A Tough Knot to Crack" (photo by Jay Fanelli)

“A Tough Knot to Crack” (photo by Jay Fanelli)

The earliest known use of the legal maxim, “Hard cases make bad law,” was in 1842, 173 years ago. Since then, others have been quoted for variants of the maxim: “Bad law makes hard cases,” and even “Hard cases make good law.

This old koan-like utterance flirts with a hint of insight but does it provide any insight of any kind? The fact is that there are many legal puzzles for which there are no adequate and no satisfying resolutions. We see these situations quite often and we call them “hard cases.” They’re not hard. They’re worse. They’re basically insoluble.


"Rog and Pete" by Jean-Luc, subject to Creative Commons license.

“Rog and Pete” by Jean-Luc, subject to Creative Commons license.

Updated post (February 27, 2015): As they were not too long ago in the post below, Bassford Remele lawyers got schooled again this week on the forum defendant rule, this time as counsel for defendant Ear, Nose and Throat SpecialtyCare of Minnesota, P.A…. Better them than you, right? Don’t forget the forum defendant rule.

Original post (January 28, 2015)Citizens from different states on opposite sides with claims in which over $75,000 is at stake can fight it out in federal court rather than state court based on what is called “diversity jurisdiction.” Except when they cannot. Without certain prerequisites, they cannot even when both the plaintiff and the defendant are, like, “It’s cool, Judge. We all like you and we want to stay here in this court. We like it here!” They cannot when an out-of-state plaintiff brings a lawsuit in state court against an in-state defendant and the in-state defendant seeks to remove the case to federal court. (The defendant cannot rightly claim fear of some kind of state court bias, right? What federalism concern would the in-state defendant have?)


Flickr Creative Commons phote by Simon Scott

Flickr Creative Commons phote by Simon Scott

Lawyer ethics are implicated in blogging. For starters, there is, of course, the lawyer’s obligation of confidentiality (Minn. R. Prof. Cond. 1.4). Also, in my opinion, ethical rules regarding conflicts of interest may be implicated.

Minn. R. Prof. Cond. 1.8, for example, provides, “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules.” So, for example, I would suggest that a blog post that is drawn from experience in one’s practice, which is disadvantageous to one’s client but does not identify one’s client or any of her confidential information, still seems unethical to me. You cannot use your experience in your client’s case, I would suggest, to advocate a position in public that disadvantages your client. At least certainly not a current client.

And, of course, there are rules under section 7, “Information about Legal Services,” that all need to be respected. You cannot tout yourself as an expert in ______ when you are not and so on. And, you must observe the lawyer ethics catch-all provisions, Section 8 (“Maintaining the Integrity of the Profession”), 8.4 (“Misconduct”), 8.4(b)(“don’t be a criminal”), 8.4(c) (“don’t be a liar”), 8.4(d) (“don’t be a jerk”), 8.4(g) (“don’t be a bigot”) etc.

But what about journalistic ethics rules? Do these rules apply to legal blogging?


Fishing IconI am frequently asked if Minnesota Litigator results in actual legal work for LEVENTHAL pllc, my law firm. Will blogging get your law firm business?

Judging from what the largest law firms in our state are doing these days, assuming that these sophisticated multi-million dollar businesses do not allocate resources without a profit motive and with due diligence, the answer might well be yes (see Faegre, Fredriksen, Dorsey, Stinson Leonard, Briggs). Legal blogs are worthwhile legal marketing.

On the other hand, many other top Minnesota firms do not have blogs. And also, with respect, many top U.S. law firms waste boat-loads of money on ill-conceived marketing. Couldn’t it be that some law firm blogs successfully bring in work and some don’t? The nature and quality of the blogs must factor in.  Also sometimes it is hard to trace the origin of new business to one’s blog, but couldn’t the benefits, the new cases and clients, come indirectly from, say, lawyer-to-lawyer referrals inspired by law firm blogs?


Pop Haydn with the Shells and Pea Photo by Billy Baque

Pop Haydn with the Shells and Pea Photo by Billy Baque

An owner of a liquor store and owner of the property, the real estate, on which the liquor store sat, hired a broker to help with the sale of the store and the real estate. The broker helped put together a deal where the buyer bought the store and got an option to buy the land 2 years after the sale of the store.

The broker worked out a deal with seller that broker would get a commission on the later sale, if the sale ultimately went through.

So it seems that buyer created a new entity to buy the property and then seller argued that he did not sell the property to buyer so he did not owe the broker the commission.

The Hennepin County District Court interpreted the broker’s commission agreement quite literally and, on a close and literal reading, dismissed the broker’s claim to the commission. Seller did not, after all, sell the property to the buyer, but to a different entity. It’s just that the different entity was simply a new business entity set up by the same person. This week the Minnesota Court of Appeals reversed dismissal of the broker’s complaint.


GlaasairRGUpdate (February 24, 2015): In the tussle described below, a defensive tactic by Plaintiff to Defendants’ motions to dismiss failed this past week.

Original post (February 6, 2015): The litigation of Kedrowski v. Valters Aviation, Lycoming Engines, et al. involves a plane crash in which Plaintiff Mark Kedrowski suffered severe injuries when his Glasair Super IIS RG mdel aircraft crashed in September, 2010 near Lake Elmo Airport.

Plaintiff brought his lawsuit in Ramsey County District Court and it is before Ramsey County District Court Judge John H. Guthmann. The fight has been intense, it seems, with motions for sanctions, motions to compel, and several allegations of improper conduct in this case and in other cases involving the same defendants elsewhere.

Plaintiff’s view is that there was something defective about a fuel pump that caused his terrible accident. I have not reviewed the case file in detail but I would speculate that the defense is that the plane performed fine and the crash was due to pilot error. This would be a standard small plane crash legal battle. (Normally in these cases, I get the sense that a great deal rides on the findings of the NTSB, which appear to support the defense in this case.)