Minnesota Litigator - federal rule changesThe Minnesota Supreme Court is considering an array of proposed amendments to the court rules. Many are occasioned by the move to e-filing and digital court records.

One new rule will make everything easier. It 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.

Why is this change important?

It 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, especially since Mary Roe may have filed more than one affidavit on a day!)  So watch for the numbered docket entries and use them in citing.

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

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

Normally, when one party brings a motion to enforce a settlement agreement against another party, it is a matter of “buyer’s remorse.” In other words, one party to the deal wants to back out or re-neg. (Last year, I covered a particularly beloved dispute in which a litigant sought to weasel out of a settlement agreement because his name had been misspelled.)

But what happens when a litigant agrees to a particular transaction in a settlement (like the transfer of property) but, in the mean time, something happens and the litigant simply cannot do the deal (like he loses the property)? Can the disappointed counter-party sue to enforce the settlement when it’s become impossible for the other side? If the plaintiff is the one who cannot perform its part of the deal, does the defendant get to just walk away and pay nothing?



Image by Jeroen Moesz, subject to Creative Commons license.

Update (March 25, 2015): This past week, the Minnesota Supreme Court denied defendant’s petition for review of the decision described below. The plaintiff’s lawyer can now enjoy the relief that his crossing the line in closing argument did not blow up his client’s favorable verdict.

Original post (December 17, 2014): Trials are relatively infrequent and they are expensive. They are one-time (normally) theatrical productions or, if you prefer, laboratory experiments – that is, they are multi-player orchestrations, requiring a great deal of preparation, resources, and time. So courts understandably are extremely reluctant to order “encores.”

This reluctance, in turn, gives trial lawyers the incentive to bend, if not break, the rules — not egregiously so that they are all but assured stern condemnation and punishment, but just so much, just enough to help their cause without tanking the entire effort.

Giving into this temptation presents obvious and serious risk. I would invariably advise against it, across the board, in any case. But, on the other hand, lawyers can and do get away with shenanigans…


Cemetery Tombstone GraveyardUnder Minnesota common law, a life insurance policy “issued to one who has no interest in the continuation of the life of the person insured, is both a gambling contract, and a contract which creates a motive for desiring the termination of such life, and is therefore against public policy and void.”

But “once a life insurance policy has been validly procured, it may be assigned to a third party that does not have an insurable interest.”

But “an exception to the rule permitting the assignment of life insurance policies exists when an assignment is not made in good faith, but is instead ‘a mere cover for taking out insurance in the beginning in favor of one without an insurable interest . . . .'”

So, a stranger cannot buy a stranger’s life insurance policy (gambling and hoping the insured will die soon), except when he can, except when he cannot?


Slimed Person cropped SLIMEImagine you work for a grocery store chain and you are under great pressure to think up ways to increase revenue.

Here’s an idea: As people go through the store, have your smiling and sweet bagger-employees place bags in the bottom of customers’ carts as they amble through the store. When the customers get to the register, charge them, say, $0.10 per bag. Easy money!

Consumer rights advocates could have a problem with your scheme though. You’re tricking people into purchasing things that they actually would get for free. You’re surreptitiously imposing an unnecessary expense on your customers. What you’re doing is essentially fraud.

In your defense, you might say: (1) we don’t “sneak” the bags into the carts, we do so openly and we will take them out upon request; (2) many of our customers appreciate the convenience of having the bags “preloaded”; (3) some customers actually think this service saves them money because, as they shop, the presence of the bags makes them more mindful about the volume of their purchases and the “preloaded bags” deter “impulse buys.” Maybe you even have some experts to back up these defenses?


Judge, Ye Shall Be Judged

Judge, Ye Shall Be Judged

Minnesota Litigator’s secret recipe of success is its ambitious attempt to provide readers with five “fresh” posts per week, 50 weeks a year (more or less).

So when my readers, who tend to be Minnesota litigators, those who love them, those who sit in judgment of them, and those ensnared with them in what can seem like a toxic, viscous, and revolting network of webs, nettles, thickets, ooze, and dense fog (civil litigation) are at work, they can all rely on a few minutes of distraction, a few minutes of local legal news, feeble attempts at humor, and, from time to time, I like to think I stumble upon some hard-to-otherwise-find insights.

This “publishing pressure” has given me new-found deep appreciation and sympathy for journalists. Do we really have to have “news” every day? You have any idea or the ratio of news to days? And if you limit yourself to “news and commentary about Minnesota civil litigation”? Stuff happening five days/week, 50 weeks a year?


Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

At large Minneapolis law firms (and large law firms nationwide), they have specific ethics partners and the rugs in the doorways to their offices are worn bare. Their colleagues are constantly running things past the ethics experts. Small firm lawyers, on the other hand, do not enjoy such support. What’s more, they tend to have less sophisticated clients and given the challenges of small firm practice might be tempted to take on risks that other more secure colleagues will pass over.

Is it ok if Uncle Pete pays his nephew’s (that is, your client’s) legal bill for the nephew’s divorce? For his DWI? How about Pete paying for his employee’s legal bill?

Is it ok to take part ownership in a client’s business as payment for legal fees that the client owes?

If you have come to view your client as a stubborn vindictive bully, is this sufficient basis for you to withdraw from representing him?

Do you have to get your client’s okay to dismiss a co-defendant (crossclaim defendant) if you think it’s consistent with the best legal strategy? If your client says, “No,” can you dismiss the party regardless consistent with your ethical obligations to your client?

What can you say in your advertising and what not consistent with ethics rules about lawyer advertising?

Does missing a deadline in a case always equate to a violation of lawyers’ ethical duties? Are breaches of ethical duties always actionable legal malpractice?

Karin Ciano, Brian Hagerty, and Seth Leventhal wade into the dark and foreboding jungle of Everyday Ethics for Small Firm Attorneys in a webcast of the National Business Institute set to air on April 21, 2015. Join us. Invest the $259. Maybe you will learn something that could save you a great deal more than that somewhere along the line in your legal practice.

But everybody’s like Cristal, Maybach, diamonds on your timepiece.
Jet planes, islands, tigers on a gold leash…
We don’t care, we aren’t caught up in your love affair.

Singer: Lorde.

Lyric Writers: Ella Marija la Yelich O’Connor, Joel Little.

Copyright: Songs Of Smp, Emi Music Publishing Australia Pty Ltd.

vasque-logoMany will recognize these lyrics from a famous tune of recent years and many will not need to be educated about what “Cristal” and “Maybach” mean. When you own marks like “Cristal,” or “Maybach,” and when products associated with these marks are widely regarded to confer status on the users and buyers, you are wildly rich.

You are also going to have to spend some of your profits protecting your mark because others will undoubtedly want to piggy-back on your successful mark without your permission, and without your having collected a licensing fee (and could pollute your mark by associating it with inferior products).

And the problems with “mark maximizing” don’t end there. Let’s say that you own a mark that, over many decades, has become associated with one of the best hard-core heavy-duty mountain-climbing boots ever made and another company, that makes shoes for “the urban market” in places like New Jersey, New York City, Detroit, Atlanta and Chicago, wants to use the mark. They want to license the mark from you. See any risks there?


Holdreith PhotoMinnesota 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. Jake Holdreith has had more than twenty years of civil litigation experience in two large Minnesota law firms, but his practice is national so it’s possible you have not come across him. Jake’s practice is extraordinary and Jake is extraordinary.

Question: How long have you been at the Robins Kaplan law firm?

Jake Holdreith: I started at Robins in February, ’01, so I guess that makes it 14 years. And before that I was at Oppenheimer Wolff & Donnelly for about eleven years.

Question: Before that?

Jake Holdreith: No. I summer clerked at Oppenheimer. Although when I started at Oppenheimer they had a wonderful trial program where they ran you through the state attorney general’s office for three months to defend drivers’ license revocation administrative hearings, for people who had either failed the breath test or refused the breath test, and were trying to get their licenses back, which is really stacked in favor of the state and almost impossible to lose if you were representing the state. These proceedings were really used as a discovery vehicle by DWI attorneys who were anticipating the criminal case and using the administrative revocation hearing as a way to cross-examine the cop and find out what the testimony was going to be like at the main event.

A very wonderful way for a trial lawyer to gain a lot of courtroom experience.

Question: So that was a program at Oppenheimer back in 1990?

Jake Holdreith: Yes. I think everyone who was assigned to a trial department would be assigned a rotation through that program.

I was the very first one in my class so before I even started worked at Oppenheimer, I did work at the AG’s office for three months.

Question: Does Robins offer any such program?

We do not have a program like that. We try to get our trial associates to trials, with us in trials for clients, as early as possible but we don’t have a formal program. In our pro bono program, we have some trial opportunities. It is not required but there are opportunities there.

Question: As a seasoned veteran of two major Minnesota law firms, are you of the opinion that large law firms are more or less fungible, similar institutions, just because they’re in the same business and include the same kinds of people, or do the firms have unique personalities?


Minnesota Litigator - federal rule changesWe are moving rapidly towards e-filing and digitization of Minnesota court filings.

More records will be accessible via home computers. Many of those that aren’t available that way will be available from courthouse computers. And from any courthouse computer, so that documents filed in, say, a case docketed in Ramsey County will be available from a courthouse computer anywhere in the state.

So case records will be much more accessible to everyone. With all the good that brings. But all the risks and dangers involved as well.

Some of the proposed amendments to the rules of civil procedure and general practice aim to fine-tune the balance between accessibility and privacy.

One area has received particular attention: restricted identifiers. Restricted identifiers are social security numbers, employer identification numbers and financial account numbers.

The proposed 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 identifies 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, a proposed 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, proposed 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 sparked 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, though, 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.

Watch for action as the Supreme Court adopts rule amendments soon.