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

Impatiens Hawkeri, b/k/a Impatients…

Update (January, 15, 2019): In October, 2015, Minnesota litigator, Mr. Rick Linsk, wrote in Minnesota Bench & Bar, “As early as July 1, 2016, or else by January 1, 2017, all civil case documents…from Minnesota courts will be remotely accessible…” (See the linked article below.)


We all know that bureaucracies move slowly but this is ridiculous. (Check out our string of posts below.)

The problem is not only that this obviously important access has been withheld for over five years when the federal court system figured this out a decade or more ago. An additional problem is that the Minnesota court system is quite opaque as to what the process is, what the hold-up is, and what the timeline is.

We had the opportunity this week to question Mr. Jeff Shorba, Minnesota’s state court administrator, about this very briefly. “Our fingers are crossed that we might get a pilot program out this calendar year,” we are told. We also learned from Mr. Shorba that, unsurprisingly, the state is working on this with Tyler Technologies, the company that runs the state’s current electronic case filing system. We wonder whether the contract with Tyler has any kind of term or incentive to get this done?


Photo by Molly:

To our knowledge, there is no person more knowledgeable about the health and well-being of the market for legal services in Minnesota than Mr. Brian McMahon, Managing Director of the Minneapolis office of Major, Lindsey & Africa (“MLA”). MLA might be the most preeminent legal recruiting company worldwide. Mr. McMahon circulated a report this week from Hildebrandt Legal Consulting and Citi, adding his own condensed local insights.

So, what’s up, Doc?

According to Hildebrandt Legal Consulting, Big Law is devouring its smaller colleagues. That is, the 50 largest U.S. law firms are hurting if not killing the top 100-200 law firms. This is great news for some high-powered Minneapolis big firm partners and bad news for the regional firms these top lawyers ditch for more money, more national and international reach.

The path to partnership at the large firms is tilting away from “organic” partners (aka, “internal promotions”) toward lateral hires.

Old lawyers are dying, too often without transitioning their client relationships to younger lawyers.

And, finally, some good news: “litigation is making a comeback.” Yay.

[The full Citi Hildebrandt Report is here.]


An ultrahazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others from being injured.

Examples are: transportation and storage of explosives, radioactive materials, or wild animals.

So the answer to the headline’s rhetorical question (consistent with Betteridge’s Law) is, “No, going to the Dollar Tree store is not an ultrahazardous activity.” But hear us out…


This week, the Minnesota Chapter of the Federal Bar Association enjoyed U.S. District Court Chief Judge John R. Tunheim’s yearly update on the state of the United States District Court for the district of Minnesota.

For Minnesota Litigator, the lasting message was about the stress and  the hardship of the partial shutdown of the federal government, which Judge Tunheim emphasized a few times in his presentation. For those of us who are not directly involved, who are not federal employees nor related to any, it was a vivid reminder that this is not “annoying political squabbling” for federal employees and their families. It is a time of genuine anxiety, fear, and concern; it poses a potential imminent threat to their financial well-being (if it is not already causing actual disruption in their lives).

Turning to less pressing and distressing matters, Judge Tunheim presented U.S. District Court statistics of case filings and trials. Here are our takeaways: (1) there was very little change in the number of filings between 2017 and 2018; and (2) while there were over 2,000 civil cases filed in 2018, there were fewer than 20 civil trials. Of course, it is unlikely that any of the 20 civil trials involved any of the 2,000+ cases filed the same year, but we think one can fairly suggest that a civil trial is about a 1% likelihood for any randomly chosen civil lawsuit.


Just teasing. Minnesota Litigator has been known, from time to time, for its typographical lapses, of course.

We’ll go a step further: if your law firm enjoys a superbly low typo rate, we would submit that your clients are paying too much. Though it is true that typos are unfortunate and, particularly to perfectionists, they are deemed to be “signs of sloppiness,” typos are inherent in our work. Having briefs and other legal writings reviewed by many different readers to root out every single typo is generally overkill and needlessly adds expense for legal services. (It is true that sometimes a single typo can have terrible consequences, of course. This, however, is extremely rare. Most typos simply trigger a fleeting feeling of superiority in the reader without any further consequence or confusion.)

Larson King appears to have one lawyer holding himself out as having immigration law expertise, Mr. Umut Ozturk, and the fact that they are looking to hire another lawyer with this expertise suggests his practice is doing well!


Somewhere over the rainbow…

“Somewhere over the rainbow, bluebirds fly, birds fly over the rainbow, why, then, oh why can’t I?”

You cannot fly over the rainbow for the same reason that bluebirds cannot read, I guess you might say. You don’t have wings and bluebirds’ brains are about the size of a pencil eraser. I think you should be happy with the trade. And things really are not so bad here on earth under the rainbow.

But, nevertheless, we persist. We wistfully long for powers beyond our reach, for dreams we can never realize.

This is often how it feels when you have won a judgment against an insolvent entity. You have something in hand, like a judgment for over $1 million. Why, then, oh why, can’t you convert that hard-won judgment into cold hard cash?


We wager the speed of social change may never have been faster than it has been in the past 200 years in the United States and it seems to be ever-accelerating.

Nowhere is this more obvious than in our evolving understanding and treatment of the concepts of “gender” and “sexual identity.” And caution to people, institutions, and businesses that fail to keep up with our evolving culture.

On Friday, December 14, 2018, after reviewing a week’s worth of evidence, a jury in Dakota County, Minnesota concluded that The Minnesota Vixen (“Vixen”) football team and the Independent Women’s Football League (“IWFL”) intentionally discriminated against Christina Ginther, a transgender woman, by maintaining and applying a discriminatory eligibility policy that specifically excluded transgender women from the league.

Regular Minnesota Litigator readers may recall that Fairview Health Services, Inc., also ran into problems for its treatment of a transgender patient in the past couple of years.

A Dakota County jury found that the Vixen and the IWFL wrongfully discriminated against Ms. Ginther, then they found that the discrimination caused Ms. Ginther compensable mental anguish, and, finally, the jury found that punitive damages were warranted against the IWFL.

Congratulations to Ms. Ginther and her lawyers, Nick May and Lucas Kane. And to Minnesotans, may this be a reminder or wake-up call to those who have not already come around and embraced tolerance and respect of our transgender community, which are not matters of courtesy or “political correctness.” They are the law.

Photo by Jonathan Rotondo-McCord

Update (January 3, 2019): Pro bono work, as we all know, is legal service provided by lawyers without pay — charity. Pro nono work, is legal service provided by lawyers without pay — loser contingent fee cases, deadbeat clients, etc. Sadly, many fine lawyers have no time for pro bono work because they have too much pro nono work to dig out from under. They cannot afford donating their time and energy to worthy causes; they do not have the luxury. These difficult circumstances come to mind in the the case, described below, a long disappointing slog for the Rochester, Minnesota law firm, O’Brien & Wolf.

You can read in the attached opinion what might be the death knell to the law firm’s claim that it can recover any proportion of its legal fees from an ERISA plan when the law firm recovered money for the plan, without any agreement from the plan that it would pay the law firm. (We will see if the firm petitions the Minnesota Supreme Court for review or whether it will raise the white flag at this point.)

You can read the original post below (from July, 2017) to get a sense of how long and how hard O’Brien & Wolf has fought to get some of its legal fees from their client’s ERISA plan for which the law firm recovered over $150,000…


The linked order from Judge Vanessa D. Gilmore of the U.S. District Court for the Southern District of Texas has been bouncing around the internet for most of December so many Minnesota Litigator readers have undoubtedly stumbled across it already.

It is a cry from the heart of a federal judge that lawyers and clients, alike, can get enmeshed in tedious conflict, failing to appreciate the way they are perceived by others (as petty, silly, needlessly antagonistic).

On the other hand, Judge Gilmore, herself, has been the subject of withering criticism, some of which, appears to be justified.

Regardless of who is more to blame in this apparent break-down in common decency, the tiff is nevertheless a worthwhile reminder during the holiday season. This is a time when we aspire, at least, to see the forest for the trees, that is, to rise above the immediate and trivial, to contemplate and celebrate greater meaning, like love, family, and the sheer joy of life. Happy Holidays from Minnesota Litigator and best wishes for the year to come! Thanks for all contributions, comments, suggestions, and tips. KEEP THEM COMING!


Update (December 21, 2018): It’s looking like the criminal trial of University of Minnesota law professor Edward Adams will be moved from January, 2019 to October of 2019, based on 35,000 emails seized from the professor’s Yahoo email accounts that still need to be reviewed and one of Prof. Adams’ lawyer’s maternity leave. The pressure’s off for now.

Original post (November 5, 2018) (under the headline, A Primer on Attorney-Client Privilege & the Attorney Work-Product Doctrine from U of M Law Prof. Edward Adams (Indirectly)): University of Minnesota law professor, Edward S. Adams, finds himself the subject of a federal criminal indictment. He is alleged to have duped investors and unlawfully enriched himself. The superseding indictment portrays a classic investment fraud scheme where investments were solicited for a business (“laboratory-grown diamonds”) but the investment dollars were allegedly pocketed and spent for personal benefit rather than invested in the business.