Minnesota Litigator - Stacks_of_moneyMinnesota Litigator covered the protracted and hard-fought battle of Ellen Ewald vs. the Royal Norwegian at some length, which culminated in U.S. District Court Judge Susan R. Nelson’s (D. Minn.) 191-page findings of fact and conclusions of law by Judge Nelson and a win for Plaintiff Ewald.

The Equal Pay Act provides for an award of “a reasonable attorneys’ fee” to a victorious plaintiff. In Plaintiff Ewald’s case, Judge Nelson found $1,773,719.05 in attorney’s fees to have been reasonable (plus $209,973.61 in costs, plus $114,267.31). For lawyers who seek awards of attorneys’ fees, Judge Nelson’s order should be required reading. Note that plaintiff’s counsel marked down her bills repeatedly in light of circumstances, such as the replacement of the lead paralegal on the case (because the previous paralegal left for a job in the public sector). Congratulations to Engelemeier & Umanah!

Here’s a related question: if a statute provides for an award of “a reasonable attorneys’ fee,” should a lawyer be able to recover the cost of computer research as well? As “costs”? or As a part of “reasonable attorneys’ fees”?


DataYou might not want a compilation of every ______ between the ages of ____ and _____, of ______ethnic origin, who suffers from _________.

But many people and many businesses want “slices” of potential customer groups like this and they will pay a lot of money for these slices because they will make a lot more money with them. Many businesses (Facebook, Google, to name a couple) traffic in human data like that in the billions of dollars.

But if you collected and sold databases like that, how would you be able to tell whether a competing data merchant is stealing and re-selling your compilations?


dunce-cap1Another benefit from last week’s meeting between the Hennepin County trial court judges and Hennepin County lawyers was learning about Judge McShane’s linked list.

These are excellent rules for all trial lawyers to review before heading into trial before anyone. Certainly some of the rules are inapplicable before other judges. (Some judges do not apply Judge McShane’s Rule #1, for instance.) Most of Judge McShane’s rules, though, fall under the heading of “don’t be a stupid idiot,” which is sometimes more difficult than it sounds.

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

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

Last week, the Minneapolis powerhouse of Faegre Baker Daniels hosted an HCBA CLE: Civil Litigation and Bench & Bar: Things that Lawyers Do that Drive Judges Crazy and Vice-Versa. The following Hennepin judges generously gave their time to this bench/bar get-together: Judges Diane Bratvold, John McShane, Tom Fraser, James Moore, Daniel Mabley, Margaret “Peg” Daly, Bill Fisher and Ivy Bernhardson (in the order they sat).

I attended the CLE with interest but I left before a bounteous reception of delicious appetizers, beer, wine, and non-alcoholic drinks.

Here is my take-away in a nutshell:

1. Judges are driven crazy by stupid idiot lawyers;

2. Lawyers are driven crazy by stupid idiot judges;

3. Because of scarcity of resources and time, I would submit that even fairly smart lawyers and fairly smart judges come across to one another from time to time as stupid idiots because, let’s face it, many problems we deal with are complex and we don’t have all the time in the world to figure them out perfectly (also many of us are human, meaning that we’re all stupid idiots from time to time);

4. And, finally, the lowly and envious solo scrappy lawyer (yours truly) must add an insecurity that rich and successful law firms might have a subtle and immeasurable edge with some judges. The firms can host events like this event, which might raise the firm’s lawyers’ stature in the minds of judges to some degree if only by virtue of the opulence of their offices and their spread. (Hard to ignore the contrast between Faegre’s offices and Hennepin County Government Center.)

This final point is maybe cynical and is undoubtedly vigorously contested by the large firm lawyers who moan with resentment about how courts bend over backwards to help “the little guy.” There’s some truth to that too.

Having said that, what, more specifically, did the judges and lawyers discuss?


GlaasairRGUpdate (April 13, 2015): When you move for sanctions in civil litigation, there is a risk of blow-back. That is, you might think that you are calling the court’s attention to unacceptable conduct but the court might conclude that your own conduct, in bringing the motion, was improper, unacceptable, and sanctionable.

In the case described below, I don’t think the sanctions movant, Lycoming, has very much to worry about. I feel less certain about plaintiff, his allegations of “witness tampering,” Lycoming’s alleged role, and whether the allegations meet the relatively low bar set by Rule 11 of the Federal Rules of Civil Procedure. (Here are Lycoming’s reply brief in support of its motion for sanctions and Plaintiff’s “last word” on the subject.)

Update (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.)


Formal Table SettingI recently described the time-attenuated slow motion nature of some legal disasters (as opposed to other kinds of relatively instantaneous disintegrations like stepping on a land-mine). I suppose that deaths of people, jobs, companies, lawsuits, traditions, socio-economic relationships of all kinds — all deaths in sum — are certain and follow their own time-lines based on that pesky second law of thermodynamics, better known as entropy.

When was the last time you saw a butler, for instance? The butler is a dead social institution (or is it?). I suppose sociologists might study and analyse when, how, and why social institutions were born and when they died, just as our medical community does for actual human beings.

Speaking of both disappearing butlers and slow-mo legal disasters, the day seems to be getting increasingly nearer when the Minnesota bar will say, “So long,” to Minnesota attorney William Butler, whose trail of tears I have followed on Minnesota Litigator for a while now.


trainwreck2You do not have the time to read the sad history of United States Sugars Corporation v. U.S. Sugar Co. (“Sugars v. Sugar”?) as recounted over the years on Minnesota Litigator (see (but do not read) here ). It’s yet another slow-motion train wreck.

Last week, the inexorable death march lurched forward as Sugars thumped Sugar with Plaintiff’s motion for summary judgment on its affirmative claims and Sugar’s baseless counterclaims.SugarCubes2

I still have trouble getting my head around how the value of delay could possibly be more than the costs of litigation defense. I suppose we’ll never know how that analysis has played out. But I am sympathetic to all of the players in this litigation. As Minneapolis patent litigator Jake Holdreith told Minnesota Litigator readers recently about what makes the practice of civil litigation satisfying, “…I would urge my colleagues to do is to think deeply about our role as problem-solvers in our society and put that pretty high on the list of what our function is. That makes us more valuable and makes the job more rewarding.” The job is somewhat less rewarding when it simply seems to be a lengthy progression to a certain (and all too unsatisfactory) ultimate outcome.

Habitat 67, Montreal, Canada

Habitat 67, Montreal, Canada

Let’s say that you have a tenant in your condo who is basically never there and who has failed to keep current on condo fees. When you go to foreclose on the property to get the money owed to you, how are you supposed to serve the absent tenant with notice of the foreclosure, which is required by law?

It might be more difficult than you think.

Someday, maybe service of process via Facebook will suffice


HourglassUpdate (April 8, 2015): Phew (for the plaintiffs and their lawyers in the case described below). The Minnesota Supreme Court affirmed the Court of Appeals’ decision which had reversed a devastating dismissal at the trial court for a supposed failure to meet service of process requirements timely (Minn. Stat. 45.028).

Update (June 27, 2014): Gulp. The Minnesota Supreme Court has granted a petition for review of the decision described below, for which Minnesota Litigator had congratulated plaintiff’s counsel for obtaining a reversal of the trial court’s dismissal of their case at the Court of Appeals…

The vicissitudes of civil litigation are probably ridiculously petty when set against those in criminal litigation where life and limb are on the line. But, to at least one litigator (me), civil litigation can seem like an extraordinarily intense roller-coaster ride that plays out over weeks, months, and sometimes years of wins, ties, losses, reversals ad infinitem.


haircut-33187_640In an insurance coverage dispute titled Select Comfort v. Arrowood Indemnity Co., Select Comfort sought information from Arrowood, the insurer, on how much the insurer had paid lawyers in other cases in the Northern District of California for other insured claims. In response to Select Comfort’s discovery request, Arrowood argued the information was “irrelevant, protected by attorney-client privilege, and/or burdensome to produce.” (Practice Pointer #1: you lose credibility when you object to discovery “in the alternative” (that is, objecting that “the information is irrelevant or, if it is relevant, it is burdensome to produce.” What would have been wrong with saying “irrelevant AND burdensome”?) (I am nit-picking on this one, I admit.)

Select Comfort brought a motion to compel the information. In response, Arrowood submitted affidavits saying the information “did not exist.”

At the hearing on Select Comfort’s second motion for sanctions, counsel for Arrowood admitted that Arrowood’s initial search for responsive information was inadequate and deficient. Arrowood’s counsel stated that at the time Arrowood responded to Select Comfort’s first motion for sanctions, Arrowood and Douglas believed that the information did not exist. However, Arrowood’s counsel admitted that Arrowood did not “try very hard” the first time to find the responsive information. After being ordered to conduct a more extensive search, Arrowood was able to find the information requested by Select Comfort… Although Arrowood represented to this Court in affidavits and memoranda that it conducted an ‘extensive’ search for the requested information, Arrowood’s counsel admitted that its searches after the June 6 Order were ‘inadequate’ and ‘deficient’ and that Arrowood did not ‘try very hard’ to find the requested information.