Minnesota Litigator - computer access to documents 4The Supreme Court’s Rules of Public Access to Records of the Judicial Branch have been kind of obscure. But as digitization of court records proceeds, and as the rules on public access adapt, these rules will affect all of us as practitioners, and we need to understand them.

The Court’s advisory committee on those rules has proposed changes to the public access rules.

Under the proposed rules, there will be increased access to documents in general civil and criminal cases. But (as is now the case) more restricted access for some cases. Including family, commitment, orders for protection, harassment, delinquency felony, and child protection cases.

Access to documents will depend on two things: the case type and the type of document. Some documents will be available remotely via internet access; some documents will be available only at courthouse terminals; and some documents will be confidential and will not be accessible at all, except to the parties.

So, for example, there will be no remote access for documents in certain matters: order for protection, harassment/restraining orders, juvenile CHIPS and juvenile D-16 proceedings. The register of actions (ROA) and public documents for these types of cases will be available only at courthouses. For certain other cases – e.g., civil commitments – only the register of actions will be available remotely. At the next level, for family law cases and paternity cases post-adjudication, the register of actions and court-generated documents (like orders and notices) will be available remotely. The broadest remote access will be available for other civil and criminal cases. We will be able to review the ROA and all public documents for these files remotely. At our offices or after hours at home.

You will be able to access documents available at the courthouse from any courthouse in the state. So, for example, you will be able to review available documents filed in a Hennepin County case at the St. Louis County courthouse.

The advisory committee had considered more detailed distinctions in making access decisions. But it rejected that approach in favor of the simpler (although not exactly simple!) system that is proposed. This recognized that there are many different types of judicial documents (over 2000) and many different case types and sub-case types (as many as 196). So, requiring too many distinctions would impose significant costs for the needed technology and person-power and would increase the possibility of human error in handling documents.

The committee is recommending that changes to access be made on a prospective basis only, so that existing documents will not need to be reclassified.

One caveat: it is possible that the Supreme Court and Judicial Council could decide to impose fees for remote access.

One more caveat: access under the proposed rules will be “subject to the availability of technology.” We will learn what this means as things proceed.

A committee member submitted a minority report advocating for more restrictions on access based on privacy concerns.

You can review the committee’s report. (Warning: the lingo is a bit technical in places.)

Comments can be submitted on the proposed Public Access rules until March 2, 2015, and the Supreme Court will hold a hearing on them on March 17, 2015. (If you want to make a statement at the hearing, submit a request to appear so it is received by March 2, 2015.)

Advisory committee reports and proposed rules have been issued for a number of other sets of rules. I’ll have comments on some of them in the coming weeks.

Francisco Goya's etching:  "The Sleep of Reason Conjures Monsters"

Francisco Goya’s etching: “The Sleep of Reason Conjures Monsters” (Prado Museum, Madrid)

Stephen Ballard’s life changed on July 22, 2011 when Robert Chesser drunkenly cruised over the center line on Arlington Avenue in Duluth and smashed into Mr. Ballard’s car, head-on. Mr. Ballard has lived the nightmare a life-changing tragedy coming from a risk that almost all of us run every day. Driving.

One civil litigator nightmare concerns settlements that waive or release your client’s claims that you did not mean to waive or release. Or, on the flip-side, failing to obtain waiver or release of claims against your client that you had meant to extinguish.

It is one of those horrible nightmare “gotcha’s” when you ink up a settlement for your client, put the case to bed, and then go after “the real target” or “the next target” only to find that the next target successfully argues that you released your claims against it in the earlier settlement.

Personal injury lawyers, Wil Fluegel and Ronald Envall, wisely went after Mr. Chesser’s $50,000 insurance policy and after moved on to bring a claim against the city of Duluth and Professional Golf Management, Inc. because Mr. Chesser jacked his blood-alcohol content up to .22 at Duluth’s Enger Park Golf Course Clubhouse before hitting the road and hitting Mr. Ballard.

Then the plaintiff’s lawyers’ nightmare scenario. But, fortunately for plaintiff’s counsel, the Minnesota Court of Appeals whisked away the demons let loose by the trial court’s “sleep of reason…” this week.



Motion_yo-yoCitizens 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?) (So we’re clear, plaintiff brought the suit in state court but, once in federal court, against its will, kinda likes it? This almost feels like judge-shopping, no?)

An anonymous lawsuit against Shattuck-St. Mary alleging abuse sound familiar? Presumably the case of Doe AB and the case of Doe XY will both be headed back to Rice County District Court, from which they were both removed. Who will pay for these futile round-trips? Who should pay for them? Maybe in some sense the round-trips created some efficiencies somehow (except for the federal court that had to host guests, some for over one year, who did not have tickets of admission)?

49134Update (January 27, 2015): Minnesota Litigator often gets tips from lawyers as to interesting cases, decisions, or legal issues, which is great (keep them coming!), but, as valuable, Minnesota Litigator often gets inquiries (please keep them coming too!).

No case seems to have prompted more curiosity than the lawsuit brought by the Minneapolis personal injury and consumer rights law firm of Zimmerman Reed (“ZR”) against Genevieve Zimmerman and the Minneapolis personal injury law firm of Meshbesher & Spence, Ltd. (which I call “ZvZ”). I first wrote about it in late September (see below). “What up with that case?” I have been asked repeatedly in the past few months.

Too bad the Minnesota court system is still extremely difficult to track on-line and also costly! Instead of being able to track “ZvZ” in my skivvies from home as I do with most of my Minnesota Litigator work out of the U.S. federal district court (D. Minn.), I have to send one of my wretched peons into the bowels of the Hennepin County Government Center records office to review and buy civil filings at $10-a-pop. (And seeing as how I am a solo practice, I have to send myself…Rest assured I dress appropriately as is fitting an officer of the court.)

(Alternately, fine Minnesota Litigator readers sometimes provide me with a state court filing or two, by the way, which is extremely appreciated.)

But I digress. Here is the latest information I have gleaned about ZvZ:

Plaintiff Zimmerman Reed’s emergency TRO motion was not very successful. The law firm of Briol & Associates has withdrawn as counsel for Defendants Genevieve Z and the Meshbesher firm. Meshbesher will now go it alone with Konstandinos “Gus” Niklow in the lead. Maybe this signals Defendants’ confidence in the case that they are holstering the hired guns?

Plaintiff Zimmerman Reed might be in some hot water for failure to abide by court orders in the case (see here).

Defendants have served 500 (five hundred) discovery requests on Plaintiff (116 document requests, 313 requests for admission) and it seems that Ms. Zimmerman may have been deposed in the case in December.

Note in Hennepin County Judge Susan Robiner’s Order following Status Conference that Zimmerman Reed appears to have had a rather stingy view of what is part of and not part of a client file (page 5). Furthermore, Judge Robiner notes that “both parties want the opposing party to be required to comply strictly with the rules of civil procedure. Both parties want themselves excused from strict compliance.” Order following Status Conference (page 6). Both parties failed to certify that they engaged in good faith efforts to resolve discovery disputes before going to court with their discovery disputes as the rules of civil procedure require. Order following Status Conference (page 7).

In short, it is clear that everyone is on their best behavior. Nothing to see here. Move along…(This fee-asco is scheduled for trial in August of 2015 and I will assign a minion to track its “progress” in the mean time, rest assured.)

Here, linked, by the way, is Genevieve Z and the Meshbesher firm’s amended answer and counterclaim. If you can spot the changes from the earlier version (aside from the insertion of a new Para. 12 in amended counterclaim and insertion of Count VI for Deceptive Trade Practices at the end), let me know.


Grass Single Nozzle 1Update (January 27, 2015): Consider these facts: (1) There was a relatively innocuous complaint called into 911 of a rural police force about grass clippings being piled on a public roadway on a hot summer day outside of Duluth, Minnesota, (2) the investigating police officer ordered a citizen to stand by the police car while the issue was being investigated, (3) the citizen, allegedly afraid of the officer, defied the officer and walked toward her house, and (4) the police officer, whose order has been ignored, grabbed the citizen, pulled her toward the police car, hand-cuffed her and arrested her.

The parties dueling proposed “findings of fact and conclusions of law” (“FOFCOL”) (here and here) are roughly in agreement as to these facts. The respective parties’ FOFCOLs diverge violently as to many other details of that hot July 2012 afternoon skirmish.

Chief U.S. District Court Judge Michael J. Davis (D. Minn.) had to sit through this trial. Now he must immerse himself in the weeds of this turf battle and decide whether Officer Engelstad or Lanette Heitzman was out of line…


VERDICT FORMWhen is a verdict a “special verdict” when a “general verdict”? How about the one linked here? Which is that?

Easy, right? If you had a peek at the linked document, it says right on it, “Special Verdict Form.”

But what is a “special verdict”? What is a “general verdict”? Why does anyone care?


Minnesota Litigator - Stacks_of_moneyUpdate (January 23, 2015):  Oral arguments were held in Williams-Yulee earlier this week. That case will decide whether it is constitutional to bar judicial candidates from personally soliciting attorneys for campaign contributions. And the justices seem to be dividing along the usual lines. With Justice Kennedy, who will likely be the swing vote, largely silent during the argument.

The conservative justices pointed to ways the Florida speech solicitation policy has holes and is under-inclusive. So, for example, the justices were concerned about the role campaign committees may play. And, under the Florida rule, judicial candidates may send “thank you” notes to contributors.

The attorney for the Florida Bar argued that there were two interests at stake: the first amendment interest, of course, and also the interest in a fair and impartial judiciary. Some of the liberal justices noted that attorneys may feel obligated to respond to judicial candidate requests for funds, and that the solicitations undermine the appearance of impartiality, if not the reality.

Justice Kennedy authored Citizens United, and is a strong first amendment advocate. As mentioned, he was largely silent during the argument. There were a couple exchanges that were telling, though, and may suggest how things will turn out. The attorney for the penalized judicial candidate had said the Court could rule for his client and let states bar “one-to-one solicitation” by judicial candidates. Justice Kennedy was concerned about trying to define a limit, and said, “If we say, ‘Well, the one-on-one letter, that’s almost like a personal solicitation, we can ban that,’ then what about a letter to five people? And then we’re off to the races.”   At another point, the attorney for the disciplined judicial candidate said, “[T]here are some states that prohibit the judge from finding out who [has made contributions], Minnesota, for example, has that prohibition.”  And in response, Justice Kennedy said, “Well that — it seems that — that’s just unworkable.”  Justice Kennedy’s comments do not bode well for the Minnesota middle course, which allows judicial candidates to sign mass mailings and to personally solicit funds from groups of 20 or more.

A decision will be released before July 1, 2015.

Original post (January 14, 2015):  Next week, the U.S. Supreme Court will consider whether another regulation governing judicial elections is constitutional or whether it violates the first amendment.

On Tuesday, January 20, the Court will consider Williams-Yulee v. The Florida Bar. (For a free webinar on January 15 with background on the case, click here.)

In that case, the Florida Supreme Court upheld a canon barring judicial candidates from personal solicitation of campaign contributions (instead requiring judicial candidates to raise funds through committees). The appellant in that case – Lanell Williams-Yulee – running for a county court seat, sent personal letters to potential donors asking for campaign contributions. She was reprimanded and fined $1800 for violating the anti-solicitation ban in the state’s Code of Judicial Conduct. The Florida Supreme Court upheld the constitutionality of the ban, ruling that it helped “ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.” The case is now at the Supreme Court’s doorstep.

The Florida case is the continuation of a drama that began in Minnesota.


This post appropriately follows yesterday’s post about Clayton Halunen, a passionate plaintiff’s employment lawyer. The case discussed below stands for the proposition that some employees are subjected to racist animus (or other unlawful and discriminatory words or conduct) but, at the end of the day, this, by itself, does not necessarily create a viable claim.

On the one hand, this seems to make good sense. A terrible worker should not get to keep her job or get to win money damages just because her boss is a terrible person. Employers (terrible or not) should have the right and ability to discipline or terminate all terrible workers, right? On the other hand, shouldn’t there be a means to punish unlawful discrimination, even when it is directed at employees who are deficient in other actually relevant respects? Also, how is a judge or a jury supposed to be able to figure out whether an employer’s critical regard for a worker derives from unlawful discriminatory animus rather than a sober assessment of a worker’s performance? No one is perfect, right?

Heritage of Edina, a nursing home, fired Liberian-born Hawa Kennedy in 2010 and, in 2012, Kennedy sued for violations of the civil rights act, the Americans with disabilities act, discrimination under the state human rights act, retaliation, breach of contract, and promissory estoppel.

The case finally went to trial this month and it went badly for the plaintiff. The jury found that she had suffered no damages. That is, the jury appears to have found that Heritage of Edina “discharge[d] or [took] adverse employment actions against [Hawa Kennedy] in violation of Title VII and the Minnesota Human Rights Act,” but, if the Defendant had not discharged or taken adverse employment actions against MS. Kennedy in violation of Title VII and the Minnesota Human Rights Act, it would have fired her anyhow for legitimate reasons.


Clayton Halunen

Clayton Halunen

Normally, Minnesota Litigator profiles are of Minnesota civil litigators whose practices are somewhat “niche” and who therefore are not as widely known as the depth of their expertise might deserve.

But, recently, I have strayed from that to provide Minnesota Litigator readers with profiles of more widely known lawyers. (Here is my most recent post about Minneapolis attorney Stephen L. Smith and, at the end of the profile, a list of the many others I have had the privilege of profiling.) Clayton Halunen definitely falls into the latter category. For the past twenty years, Clayton has been a plaintiff’s side employment lawyer. He owns his firm, which bears his name.

Nevertheless, Clayton is a worthy subject. He is expert in what he does. He is dedicated. He is talented. He’s passionate and he’s opinionated, which makes for a great interview.

What laws would you change if you could change them?

Where should I start? Many. In my estimation, the number one travesty in employment law is the high rate of summary judgment. I have watched this through my career. It appears to have become a docket management system rather than a justice system. We see, regularly, judges who will dismiss a case when there are material facts in dispute. Regularly. It is wrong. It is unconscionable. They took an oath to apply the law. So if I could change anything, I would require judges to adhere to the standard set down by the Supreme Court. As long as they do that, it is a fair playing field. But, weighing evidence, making credibility determinations, happens all the time by district court judges. It is simply wrong. It is not what the law provides.

The other thing I’d change concerns arbitration — the U.S. Supreme Court’s decision in AT&T v. Concepcion. The case allows companies to require workers and consumers to arbitrate disputes individually, only independently, without any group action. If the public only understood what companies are getting away with by their ability to require workers – these are adhesion contracts, there is no negotiation – … the forum is clearly set up for the benefit of the corporations. It’s just wrong. You don’t get your day in court. Most consumers can never challenge a corporation on their own. For a consumer product — say a defective product — no consumer can afford to hire experts. No lawyer will take it on. It completely changes the playing field, gives all power to corporations, and that’s a travesty.

I hope there will be legislation to change that. The Federal Arbitration Act was never intended to be used as it is now. It had its origins in maritime law.

That was my soap box. (more…)

Money RollUpdate (January 22, 2015): The Minnesota Supreme Court has granted a petition for review in the published Minnesota Court of Appeals’ attorneys’ fee dispute decision described (and called into question) below.

Original post November 7, 2014): Let’s say a client comes to you with a claim and, based on your experience, you assess the claim to have a value of between $0 and $250,000 and a most likely recovery of less than $100,000 in your best estimate. (Let’s say the range has to do with complications with regard to liability and with regard to claimed damages, as well.)

You take the case on a contingent fee and the defendant offers your client $100,000 in a settlement mediation.

You want your client to take it. Your client wants to hold out.

What are you going to do about it?