Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

A published Minnesota Court of Appeals decision that came down this week starts: “Jerry Expose, Jr., was convicted of the criminal offense of making a terroristic threat during an anger-management counseling session.”

I say, half-joking, “If you can’t make a terroristic threat during an anger-management counseling session, then when can you?”

More seriously, the case of Expose v. Mattson raises a significant issue. The nature of psychotherapy and counseling is, of course, to provide a safe environment for complete, open, candid communication. It is built on a foundation of confidentiality and trust. On the other hand, it is obvious that there must be an exception made when a health-care professional like a psychotherapist is told information about a concrete threat to the health or well-being of another person. A system in which a healthcare professional would be bound to sit by silently while his patient plans and implements an act of violence against himself or someone else is unimaginable and intolerable.

But it is, of course, a delicate balance. In the case of Expose v. Mattson, the trial court felt the balance tipped in favor of the health care providers. On appeal, however, the critical decision in tilting the balance in the opposite direction was that the mental health therapist was an intern. The therapist was not yet a licensed psychotherapist and so the appellate court held that neither she nor the clinic at which she interned could  find a shield in the statute devised to protect licensed therapists.

Does the result seem harsh? Maybe the Minnesota Supreme Court will weigh in and reinstate the district court’s decision. But I think there is some merit to the idea underlying the Court of Appeals decision — health-care professionals are in extremely delicate positions and wield dangerous power. Maybe putting interns in that position, junior or student counselors who might not yet have the training and experience to distinguish “venting” from “terroristic threats,” was not what the Minnesota legislature had in mind when it established immunity for licensed providers?




Update (May 5, 2015): In my original post on C.H. Robinson v. U.S. Sand, below, I noted the oddity that U.S. Sand had a little parade of outside lawyers and law firms serially quitting for non-payment (in connection with C.H. Robinson’s underlying case accusing U.S. Sand of non-payment, of course). Such sad processions are not uncommon but this one was particularly strange because a relatively large and prestigious local law firm was the third firm to take the case on for U.S. Sand after two other law firms had backed out due to non-payment.

Successor law firms often see the case in new ways, they have different strategies, and so on, but often they have little or no time. So a first order of business is to go to Court and ask for an extension of time. U.S. Sand and its third wave of lawyers took a swing but, for the most part, they missed and so it seems U.S. Sand struck out. (Here is the order denying the extension but for an allowance of 30 days of discovery…) Within the month, the case was quietly settled and dismissed…

Original post (November 21, 2014) (under headline: “Forewarned Is Four-Armed”): Here is a pattern that civil litigators see from time to time: company or individual gets sued and the defendant has a series of lawyers representing it, one after the other, starting with the legal rockstar, going to the B-list, down to the C-list, and so on. Sometimes the unfortunate defendants finally end up “pro se,” that is, in court without a lawyer. This is almost always because the unfortunate defendants’ resources are being depleted and such defendants are progressively tightening the belt on their legal fees.

(Corporations, on the other hand, are not allowed to appear “pro se,” that is at least until they bring a constitutional claim that this denies them their constitutional right to due process.)

I noted a recent case that seems to deviate from this pattern in a curious and inscrutable way.

C.H. Robinson, a major Minnesota employer and provider of transportation logistics, helped U.S. Sand, based in Texas to ship tons of “ceramic proppant” from China to the Bakken oil range in North Dakota. This was not an act of charity on C.H. Robinson’s part. C.H. Robinson had hoped and expected to be paid for its work. U.S. Sand allegedly did not pay C.H. Robinson and so C.H. Robinson sued U.S. Sand.


Money RollUpdate (May 4, 2015): The Minnesota Supreme Court heard argument this morning in the Petition for Distribution of Attorney’s Fees between Stowman Law Firm, P.A., and Lori Peterson Law Firm case, which is discussed in earlier posts below. The issue in the case is whether Stowman should get part of a contingent fee award when he did much of the work on the case but he withdrew before the client negotiated a settlement with a successor lawyer. There was nothing in the Stowman contingent fee agreement providing for any such scenario.

Erik Hansen argued for the Stowman Law Firm. Based on the the questions that the hot bench laid on Hansen, I think we can predict that the Stowman law firm will lose. The Court’s concern is that litigants in contingent fee cases will be badly prejudiced if a string of contingent fee lawyers can all make “extracontractual claims” on any ultimate recovery even if such a deal is not set out in the lawyers’ contingent fee agreements (under theories of “quantum meruit” or “unjust enrichment”). Zenas Baer argued for the Lori Peterson Law Firm.

So, it seems to me there might be an easy fix going forward (but no recourse for Stowman, if I am right as to how the Minnesota Supreme Court is leaning). The original contingent fee agreement could set out an express condition that the attorney will be entitled to a fair share of an ultimately recovery in the event the event that the lawyer has to withdraw before final settlement or resolution for any reason. But this might lead to later litigation as to whether any such a contractual provision is too vague to be enforceable. But it would rescue the firm in Stowman’s position who seeks to be paid even when there was no applicable provision in the contingent fee.



Minnesota Litigator - federal rule changesThe Minnesota Supreme Court just adopted amendments to seven sets of court rules: Public Access, Civil Procedure, General Rules of Practice, and four other sets of rules.

Many of the amendments are prompted by the digitization of court filings and records. Some highlights from me follow:

The Public Access Rules

Amendments to the Public Access rules recognize that digital court records will be more accessible to others now. The rule amendments try to strike a balance between accessibility and privacy.

The amendments categorize court filings and decisions according to two things: the type of case and the type of record. Some documents will be available off any computer (even at home sitting in your pajamas); some documents will be accessible only at courthouses (including any courthouse, not just the one where the case was filed); and some documents will be accessible only by 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.

We will need to understand these rules so we know who will be able to see what when we file documents.

The Rules of Civil Procedure and General Rules of Practice

Amendments were also made to the Rules of Civil Procedure and the General Rules of Practice.

One set of amendments deals with “restricted identifiers.” Restricted identifiers are social security numbers, employer identification numbers and financial account numbers.

The amended rules take a three-pronged approach to regulation of restricted identifiers.

First, the amendments discourage the use of restricted identifiers whenever they can be avoided. The advisory committee says that it is rare that restricted identifiers are really needed in filings. Sometimes pleadings must include specific identifiers. But they should be avoided where not required by statute or needed for adjudication. So, for example, a filing could refer to “Wells Fargo Joint Checking” rather than a specific account number.

Second, an amendment emphasizes the existing requirement that restricted identifiers may be submitted only on a Confidential Information Form (Form 11.1) or on Confidential Financial Source Documents (under rule 11.03). We will have to certify when filing that the documents submitted contain no restricted identifiers except as permitted by the rules. If court administrators discover that a document with restricted identifiers is improperly submitted, they may file it with a “temporary non-public status” to allow the filing of a redacted document.

Last, amendments to Rule 11 of the Rules of Civil Procedure say that documents that are wrongly submitted with restricted identifiers may be a basis for rule 11 sanctions. This last provision drew some controversy. The MSBA submitted comments on the proposed rules opposing sanctions based on the submission of restricted identifiers not submitted in a confidential way. (It does not seem likely that accidental submission of restricted identifiers will lead to sanctions, and it seems that the proposed provision is aimed at repetitive and abusive submissions, although, of course, it is never possible to predict how individual judges will react.)

Another amendment will allow the courts to accept documents like affidavits without notarization if they are signed “under penalty of perjury.” This change will allow things like affidavits to be accepted if they are unsworn declarations with this magic language:

“I declare under penalty of perjury that everything I have stated in this document is true and correct.”

The signature, date of signing and county and state where the document was signed would need to be included as well.

This is consistent with a new state statute, which opened the door to unsworn declarations, Minn. Stat. section 358.116.

Yet another amendment will simply require that all documents filed be consecutively numbered. So, for example, an affidavit with exhibits will have to be numbered from beginning to end, running from the first page of the affidavit to the last exhibit page.

The changes will apply to documents filed in support of motions and to trial exhibits.

This will help save time and effort in the district court, as all participants will be able to pinpoint the exact page of a document being considered.

And this change will be especially helpful at the appellate level. Under amendments to the appellate rules adopted last year, appendices are eliminated. Addenda may now be longer (up to 50 pages in addition to the order or judgment at issue). But attorneys will no longer be able to include everything they want to cite to in a long appendix. Judges will be working with digital files. So it will be important to be able to direct them to the exact page.

This proposed amendment will work in sync with an administrative change made by the court recently.

The district courts are now assigning unique numbers to docket entries in the case register (as in the federal courts). So instead of citing to Affidavit of Mary Roe filed on March 18, 2014 at page x, you will be able to cite to a document entry number, for example, Doc. ID # Y at page x. (Or ROA # Y at page x to refer to the Register of Actions. The same thing with a different name.)

These ways of citing will be shorter and more precise. So watch for the numbered docket entries and use them in citing.

All the amended court rules will take effect on July 1, 2015.


Update (May 1, 2015): Minnesota Litigator missed a March 2015 development in the e-discovery quagmire covered in earlier Minnesota Litigator posts (below).

E-discovery vendor/Plaintiff Kroll Ontrack failed to win its case on summary judgment, which is based on $700,000 worth of e-discovery work for which Kroll was not paid. (U.S. District Court Judge Donovan W. Frank’s opinion denying Kroll’s motion for summary judgment is here.) The case is apparently headed for trial but not starting on May 11, as the Court ordered.  A May 11 start for trial would have interfered with Defendant Devon IT’s lead counsel’s scheduled vacation. Apparently, trial is not stressful enough for Devon IT’s lead counsel; it looks like he might be going to Disney World for a week instead. He is far braver than I. (And I also think it is noteworthy that the court system, while it can be demanding on lawyers, can and does also cut them some slack from time to time.)

Photograph by Maura Teague

Photograph by Maura Teague

Update (June 18, 2014) (under headline: Lawyers: What is Worse Than Not Having Enough Work to Do?): Having a huge amount of work to do in a case in which your law firm’s costs are in the millions of dollars and your client refuses to pay you because you entered into a terrible fixed fee arrangement with them.

And here’s something else that’s worse: being assigned to fabricate problems with a vendor’s services because your law firm does not have the money to pay the vendor.



Distinct Sauces for Goose and Gander, Photo by Dan T., Creative Commons License

Update (April 30, 2015): Plaintiffs in federal civil litigation are not allowed to make up facts in their complaints. They are subject to “Rule 11,” a rule that exposes plaintiffs to serious consequences if they make stuff up.

So, is it fair that a plaintiff must meet an admittedly low standard (no bald-faced lying or reckless baseless allegations) but defendants, in answering complaints, can make stuff up? Specifically, can defendants invoke “affirmative defenses” to complaints for which they have no factual or legal basis whatsoever without fear of being sanctioned?

The answer is “Yes.” The proper remedy for “kitchen sink” affirmative defenses is not Rule 11. It is a “motion to strike” under Rule 12, as set out in a recent opinion by U.S. District Court Judge Susan R. Nelson (D. Minn.). This asymmetry makes sense. A plaintiff who makes stuff up to bring a lawsuit creates a costly and disruptive problem for our justice system out of nothing. A defendant, on the other hand, who makes stuff up in his affirmative defenses might be under a time constraint and at an informational disadvantage. Also, a defendant’s meritless affirmative defenses do not generally impose any material hardship on the court system or on the adversaries. So we do not need to raise the stakes on defendants or defense counsel to deter baseless affirmative defenses.

Update (November 9, 2011):  Recognizing that enhanced “Iqbal/Twombly” pleading rules (discussed below) do not apply to affirmative defenses, U.S. District Court Judge Donovan W. Frank (D. Minn.) still struck affirmative defenses last week as falling short of Rule 8 in response to a motion to strike by a plaintiff in a Fair Credit Reporting Act case (“FCRA“).  In short, defense counsel should take heed that a “kitchen sink answer” with an exhaustive compendium of affirmative defenses may result in a successful motion to strike.   (more…)

haircut-33187_640To answer the question in the headline, you’d probably want to know (1) what is the degree of certainty of that return, and (2) what is the period of time between the initial investment and the return?

I won’t do the number-crunching for you except to say that we’re talking about a 25% return, there, which looks pretty good if the turn-around is under six months. If you had an agreement with someone that they would give you $50,000, however, and they failed to, and you had an agreement that the debtor would pay your “reasonable attorneys’ fees” if you were forced to go to court to collect the $50,000, be forewarned: It is possible a court might rule that: “Expending nearly $41,000 to defend a $52,627 fee award is a disproportionate reaction to the dispute….” And you might end up being awarded a small fraction of the legal fees that you invested…(In the linked opinion, the claim for $41,000 in fees was knocked down to $5,000.)

Every once in a while, a court will award a lawyer everything that she asks for. But it seems far more common, at least in my obviously anecdotal experience, that lawyers (and their clients) need to expect a proverbial hair-cut when they seek to recover attorneys’ fees, whether recoverable under a statute or under the terms of a contract. (In the linked opinion, you’ll note that the “win” for which the victorious lawyers sought $41,000 in fees was actually a split decision rather than a complete win, by the way, which was part of the justification for the drastic reduction in awarded fees.)

Update (April 29, 2015): Another M.D., another Minnesota defamation claim, and another case that appears to have prolonged and aggravated the plaintiff’s reputational wound rather than healed it. In the linked decision, the state of Minnesota won reversal of the trial court’s denial of its motion for summary judgment. The defamation claim of plaintiff, Dr. Michael Harlow, has gone down in flames (unless he takes it to the Minnesota Supreme Court and wins another reversal, though the Supreme Court review did not work out very well for Dr. McKee).

Update (March 12, 2013):  Undeterred by the recent failure of Dr. McKee’s defamation claim, Dr. Michael Harlow, represented by Minnesota litigator, Gregg Corwin, is having a go at a defamation claim of his own (MPR coverage is here).

Aside from the fact that the cases both have M.D. plaintiffs, the two cases are very dissimilar.  Still, given the huge threats and challenges of defamation cases, is this really a battle you want to wage?  Maybe so.  After the break, a reminder that Minnesotans do recognize that reputations, while hard to place a definitive dollar value on, nevertheless do have value and, possibly, high value.


Laurie Vasichek

Laurie Vasichek

Laurie Vasichek has been practicing civil litigation in Minnesota for thirty years and, for the past 25 years, has been with the United States Equal Employment Opportunity Commission or “EEOC.” So this means Laurie has deep expertise and experience in a particular area of law but, if it is not your practice area, you might not know of her. This makes Laurie the perfect Minnesota Litigator profile subject.

ML: I want to start the interview with the questions that everyone wants to know: what is your favorite color?

Laurie Vasichek: Blue.

ML: What is your favorite movie?

Laurie Vasichek: The Fugitive.

ML: What is your first pet name?

Laurie Vasichek: I’ve never had a pet.

ML: What’s your social security number?

Laurie Vasichek: [Laughs.] Seriously, I have had to deal with some identity theft recently.

ML: Funny, I just had my credit card number compromised again today, as it happens. So I guess it’s on my mind. But, I don’t know if maybe you wanted to talk about identity theft? It’s not part of your practice or mine. Do you have any thoughts on it on a legal perspective?

Laurie Vasichek: About identity theft? Well I do have I guess a perspective of it as having been a victim. You know how violated you feel when someone starts taking information relating to you and exploiting it? It does somewhat correspond to the victims of discrimination, except on a much more minor level.

When you talk to people who’ve been discriminated against, what you often find is that they have these horrible, horrible feelings of vulnerability. Like their support in their world was just torn away. There’s my parallel to my practice.

ML: Tell us about your practice. (more…)


WhisperingApril 27, 2015 Update: Imagine an executive who fires off a revealing confidential letter to her lawyer and, on further inquiry, an adversary learns that the executive hand-wrote the letter and her secretary typed it up and sent it. Think the letter is still privileged? I don’t have any Minnesota case law in hand but I think the answer is “yes” and I think it is not even a close call. But many cases do hold that, “In general, the presence of a third party at a communication between counsel and client is sufficient to deprive the communication of confidentiality.”

I think the point here is that the secretary is not really a “third party.” I expect courts would almost universally hold that the secretary is an agent of the client, that is, the executive. So the secretary’s access to the communication does not constitute a waiver of the attorney-client privilege between the executive and her lawyer.

When is a “third person” a “third party” as opposed to “an agent“?

What if the facts above are the same but we replace “the secretary” with “the executive’s best friend”? And what if the best friend is not simply functioning as a secretary but more as a best friend? What if the best friend is actually “calling the shots” or directing the lawyer to do things (based on his understanding of the interests and objectives of his close friend, “the client”)? I think it is maybe a little bit harder to call the “best friend” the “an agent” of the executive. Still privileged? Some courts have held that the question is whether “the third party is a person to whom disclosure of confidential attorneyclient communications is necessary to advance the representation…” If so, the disclosure will not waive the privilege.  That would seem to make the secretarial role within the privilege, but what about the case of the best friend?

These issues are now being considered in an audacious (some would say outrageous) on-going battle in Hennepin County District Court described in earlier posts (set out after the break). (Some are outraged by one side. Some by the other side.)

For 30+ years, Defendant Jeff Nielsen in the Bohnen v. Dorsey & Whitney, LLP, et al. lawsuit, has had a confidante, Tim Nelson. Nelson was tasked by Nielsen to talk to Nielsen’s lawyers on Nielsen’s behalf. The question pending before the Court is whether Nielsen can invoke the attorney-client privilege to shield from discovery communications between Nelson and Nielsen’s lawyers. (Here is the plaintiff’s “letter brief.” Here is Mr. Nielsen’s affidavit in which he makes his case to keep the privilege.) To make this fact pattern just a tiny bit more complicated, note that Mr. Nielsen does not have an email account but he runs things through his son’s email account (see Affidavit at Para. 12) or maybe it is just “an account [his] son set up for [Nielsen] in 2010 under [Nielsen’s son’s] name…” (THANKS DAD!) So there’s another conduit to think about, not just Nielsen to lawyers via Nelson…