Photo credit: Jana M. Cisar / USFWS

We are often sympathetic to those caught in the expensive machinery that is the U.S. civil justice system. We might be the most sympathetic to those defendants whom we consider non-culpable because they, of course, are “haled into court” (see our 2013 post on the “weird word doctrine). They do not have any choice in the matter.

Imagine being sued for $1.5 billion dollars by a foreign company and then spending the better part of a year trying to depose a key former executive of the company who makes sure he is nowhere to be found (!).

Our friends at the Stinson Leonard Street law firm don’t have to imagine being in this hypothetical situation. They (along with a bunch of telcom companies) are living it.

The challenge U.S. Mag. Judge Leo I. Brisbois (D. Minn.) recently faced was what sanction to mete out on the evasive weasel who cannot be nailed down to sit for his deposition.

One part of an appropriate sanction seems obvious and simple: the weasel should have to pay the defendants’ attorneys’ fees that were spent in trying to get Mr. Barrera to sit for his deposition.

But what else should be part of the sanction?

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Black Robe Disease (“BRD”) is a rare illness, an orphan disease, in fact.

Fewer than 32,000 Americans are exposed and vulnerable at any given time. It appears to be an occupational hazard. Approximately 100% of all reported cases have the job title of “Judge,” “Referee,” “Arbitrator,” or the like.

Fortunately (but to the disappointment of a few trial lawyers and litigants), it is never fatal. Also, fortunately, there are many reports of recoveries from BRD (which, after all, might be simply from stress, a bad night’s sleep, etc.).

BRD gets little attention because the true victims of the disease are not the infected jurists but the unfortunate lawyers and litigants who must endure the BRD sufferers’ arrogance, abuse, clumsy, obnoxious, mean-spirited attempts at humor that are not funny, etc., etc.

In defense of the abusers, bear in mind that the enabler lawyers before these sick judges fawn, bow, scrape, profusely apologize, and chuckle politely through gritted teeth. BRD also gets little publicity because, although lawyers’ rules of professional conduct allow for lawyers to call out the afflicted, there is enough play in the rules so that even an accurate public diagnosis of BRD might be deemed “in reckless disregard to truth or falsity yadda-yadda-yadda” and get the treating logician into ethical hot water.

Also, as all students of game theory and “repeat games” know, what goes around comes around…It does not take a genius to understand that if you call out Judge ________, the next time(s) you appear before Judge __________ might not go very well.

See below, an apparent case of BRD in U.S. District Court (N.D. Tex.). To set the stage, a lawyer asked permission to appear without local Texas counsel. That lawyer (that is, “the movant”) is a member of the Texas bar but he does not live in Texas. But the Court still required that he appear with local counsel (!!??)). By itself, this seems symptomatic. But the clincher is when the BRD sufferer criticizes the lawyer for the illegibility of the lawyer’s signature when the judge’s own signature is itself no model of legibility (see the footnote (the one with the typo)).

Photo thanks to tipstimes.com/pregnancy via flickr

Photo thanks to tipstimes.com/pregnancy via flickr

Update (July 13, 2018):  In the case described below, Dr. Angela Ross D.M.D. (a dentist), owner of Family Orthodontics (ironic under the circumstances), was sued by Nicole LaPoint for discrimination based on pregnancy. Dr. Ross offered Ms. Nicole LaPoint a job at Family Orthodontics, but when Dr. Ross found out that Ms. LaPoint was expecting a child and wanted 12 weeks maternity leave, she promptly revoked the job offer to Ms. LaPoint.

So, the question that the district court had to consider was whether the decision not to hire Ms. LaPoint was based on her pregnancy or her desire for 12 weeks leave (or would it be pregnancy discrimination either way?). The district court concluded that the discrimination standard was not met by a hiring decision based on a request for 12 weeks of leave. The Minnesota Court of Appeals affirmed over a dissent of Judge Diane Bratvold. Judge Bratvold wrote, “I can reach only one conclusion: Family-Orthodontics discriminated against LaPoint on the basis of her pregnancy.”

We agree with Judge Bratvold’s dissent. Unfortunately for Ms. LaPoint, it seems that the Minnesota Supreme Court might not. Ms. LaPoint’s lawyers sought Supreme Court review (here is her petition and the response) but the Supreme Court denied Ms. LaPoint’s petition for review in late June.

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Photo by Jonathan Rotondo-McCord

Update (July 11, 2018): Supplemental briefing (here and here). Apparently, the Court raised an interesting question at the hearing on the motion for a protective order regarding an employee’s attorney/client communications via the corporate servers: the application of Carpenter v. United States, 16-402, 2018 WL 3073916 (U.S. June 22, 2018). At first blush, Carpenter, a Fourth Amendment case about warrantless tracking of cell-phone location data, seems to have nothing to do with the case discussed below (about whether the attorney-client privilege applies to email communications by company employees to their personal lawyers via the company email system).

But both raise the question: when there is a third-party “conduit” of information, does that sacrifice the confidentiality of the information? On the other hand, (1) Mr. Kirschke certainly had other means of communicating with his lawyer other than through the corporate email system (but we cannot use cell phones without communicating location data to third parties); and (2) companies (including Carlson Hotels, apparently) go out of their way to put employees on notice that they have no legitimate claim of privacy for communications on the companies’ communication systems (email, voice-mail, text messages on company issues cell phones, etc. etc. etc.). These seem to be critical distinctions.

But think about this: Carlson Hotels seeks discovery of Mr. Kirschke’s communications with his personal lawyer. What about the next case: where a third-party (a soon-to-be ex-spouse, for example) seeks discovery of an employee’s communications with her personal lawyer sent and received through her work email account, arguing that the communication(s) were over corporate email and therefore not entitled to the privilege?

Original post (June 27, 2018): We have previously noted that the concept of “waiver” in U.S. law is muddled and muddy. Think about it and this lack of a bright-line universal rule makes sense. For one thing, the consequences of waiver — that is, “voluntary and intentional relinquishment of a known right” — can be small or huge in particular circumstances. Compare a criminal defendant pleading guilty and waiving her right to trial with a property owner waiving its contractual right to a written change order in a construction project, for example. In the first scenario, in theory, a human life could be at stake. In the second scenario, the issue is whether the property owner can exploit a technicality (absence of a written change order) to avoid paying for a benefit she has received.

Clearly, we should infer waiver more readily under some circumstances than others.

On this continuum of waiver, where should we put waiver of the attorney-client privilege for a corporate employee’s emails to his lawyer sent via the company email system?

Should courts require strong evidence of waiver? If a company has a policy, shared annually with all employees, that they should have no expectation of privacy with regard to their corporate email, should this, by itself constitute the waiver of the attorney-client privilege for emails sent between employees and their personal lawyers?

The issue is now before U.S. Magistrate Judge Steven E. Rau (D. Minn.) in Kirschke v. Carlson, Inc., et al.

If employees are held to have waived the confidentiality of email communications to their lawyers from their work-place email accounts, could the receiving lawyers be liable for professional malpractice if they failed to advise their clients of the need to avoid communicating through the company’s corporate email system?

Or, on the other hand, could the company (or its lawyers) be punished for knowingly exploiting confidential attorney-client privileged communications if the company exploits such common oversights by employees who inadvertently “share” their confidential communications with their employer simply by using their work email systems (but don’t “voluntarily and intentionally relinquish a known right”)? (The linked case involves the disqualification of a law firm for its erroneous exploitation of a privileged email when the law firm thought the privilege had been waived because it had been shared with a third party.)

Practice pointer: All client intake, without exception, should include taking client information, including the client’s contact information, and, at that time, there should be a discussion of the use of email, the nature of a client’s email address(es), and the importance of confidentiality. The same holds true of voice-mail, of course, and other systems that might be vulnerable to access by third-parties (and, therefore, subject to waiver).

Update (July 9, 2018): “Why say something in three pages when you can say it in 30 pages?” is one of our oft-repeated go-to jokes about the work product of many lawyers (and some judges).

We heap derision on our fellow lawyers: they were vaccinated with a phonograph needle (which only old people now understand)…they own stock in paper companies, etc., etc.

We once sat before a federal judge who stacked all of the submissions on cross-motions for summary judgment in a case on his desk in his chambers and said to trial counsel (with apparent sincerity): “Why should I take all of the time to read all of this? It would be faster just to have a trial.”

He also said, “This case should settle today and it should settle for $XXX,XXXX.00.”

Lo and behold, it did settle for that amount (the next day).

The point: your client faces a serious challenge if you cannot say quickly and clearly why your client should win on summary judgment. If you don’t take our word for it, consider the sage wisdom of Minnesota preeminent trial lawyer Richard Ostlund quoting then retired Minnesota Supreme Court Chief Justice Bob Sheran.

In the case described below in which Mr. Ostlund represents Plaintiff Upsher-Smith Laboratories, Upsher-Smith got tricked and lost about $37 million in an internet scam. Some foreign evil-doer(s) posed as the company’s CEO and sent orders to a now former Upsher-Smith employee to wire money for bogus foreign exchange trades. Upsher-Smith’s bank, Defendant Fifth Third, received the wiring instructions and acted upon them. The issue is whether Fifth Third should be liable for Upsher-Smith’s $37 million loss.

Playing the devil’s advocate on Fifth Third’s request for more pages to make its summary judgment case, word count limits are arbitrary, are they not? And few of us know the details of international wiring or banking processes, which presumably have to be explained to the Court. Further, Minnesota Litigator (and most of our readers) don’t have detailed knowledge of the claims in the Upsher-Smith case. We don’t know the number of counts, the number and complexities of state law, federal law, the interaction with multiple layers of banking laws, regulations, regulators, etc. etc Fifth Third must explain all of this to the Court.

And further, the case does involve a lot of money. Shouldn’t Fifth Third be allowed to make its best arguments and use its best judgment on the length of its summary judgment brief? Let’s not prejudge the merits of Fifth Third’s request for 10,500 more words in addition to the 12,000 allowed by our federal district court’s local rule.

Nevertheless, in the end, remember: “de maximis non curat lex.” This is an expression we have just coined for which we propose this translation: “The law does not care for wind-bags.” And one more neologism to express the same warning: “Caveat loquax.” (“Windbag Beware.”)

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The Office of Lawyers Professional Responsibility (OLPR) Board has issued its annual report this week and there seems to be no substantial change in the rate of identified unethical conduct among Minnesota lawyers, judging from the data in the report. That is, the data validate our sense that the vast majority of Minnesota lawyers are honest, hard-working, competent, and ethical.

Roughly 1,100 complaints were lodged against Minnesota lawyers in 2017. Of these, based on the data of previous years, it seems that well under 10% will ultimately result in findings of unethical conduct. Since we have about 20,000 practicing Minnesota lawyers, that’s a pretty small number of ethical violations (though, as with crime and negligence, we all recognize that reported instances are not comprehensive of all of the misconduct (and maybe not even most of it)).

Predictably, the two biggest missteps of Minnesota lawyers appear to be (1) failure to communicate and (2) lack of diligence (though it is possible that the OLPR might have a bias toward finding these violations rather than say, incompetence, which can be the root cause of failures to communicate and lack of diligence).

Ironically, the OLPR itself might be considered to have received the most criticism in its own report, since it has long been criticized for the length of time it takes to resolve ethics complaints and it did worse in 2017 than in the previous year (see the last paragraph on page 3). The OLPR attributes this to staff turn-over and other causes, adopting optimism about progress in the year to come. Of course, all annual reports communicate enthusiasm and optimism. Let’s hope that the optimism here is borne out.

Leading up to July 4, 1776, “the unanimous Declaration of the thirteen United States of America” (now better known as the Declaration of Independence) complained that the George III, then King of England, “sent hither swarms of Officers to harass our people and eat out their substance.” And, unsurprisingly,  King George III did not want  his rebellious colonists adjudicating right and wrong so he “obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.”

Storm Over St. Paul Minnesota

Now, 252 years later, we have a President of the United States obstructing the administration of justice and his lawyers argue that, like a King, the President of our country is the law so he cannot be found to violate the law. These are ominous and potentially momentous times. Maybe that should give more substance to what we generally treat as little more than an excuse for an annual summer party.

Update (July 2, 2018): Notch another successful prediction of Minnesota Litigator. The Minnesota Supreme Court, as we predicted below, reversed the Minnesota Court of Appeals this past week. Phew! A private party cannot hog-tie and force a trial court to issue an injunction, so-called equitable relief, and it follows that private parties cannot “stipulate and agree” that all of the elements for such relief exist, which would result in just that — forcing trial courts to issue injunctive relief even in cases where, objectively and subjectively, it is inappropriate and unjust.

We put “stipulate and agree” in “scare quotes” to highlight the fundamental tension that runs throughout U.S. contract law jurisprudence.

There is rarely genuine understanding and agreement in most legally binding contracts that most of us enter into every day. It is a legal fiction. Whether it is because the agreement requires a law degree to understand (and a few hours of trained lawyer time) that we don’t have or cannot afford (see, e.g., car rental agreements) or the agreement is “take it or leave it,” non-negotiable (see, e.g., “click-through” agreements on-line), or both, as we expect was the case for Mr. Heath Carter, to suggest that we have stipulated and agreed to every clause is a transparent legal fiction and the only time enforcement is evaluated by a dispassionate and competent arbiter is when such “agreements” are challenged in court. While courts must generally respect and honor the purpose and intent of private agreements, they must not be bound by them all in any just society.

Update (February 7, 2018): When two parties stipulate and agree that breach of a contract will result in irreparable harm, can a court go against that stipulation and find, as a matter of fact, that one party’s breach caused no irreparable harm to the other party? That’s the issue in the case described below, argued yesterday before the Minnesota Supreme Court.

On the one hand, the harm caused by a breach of a covenant not to compete or a breach of the duty to maintain the confidentiality of information is obviously difficult (maybe impossible) to measure. Can’t parties hold down litigation costs up front by locking themselves into an agreement as to this point?

On the other hand, as Martin Chester, counsel for the defendants, argued, giving a stipulation of irreparable harm conclusive effect binds trial courts, which seems antithetical to established law governing courts’ exercise of equitable relief, and it is also antithetical to courts’ long-held view that restrictive covenants are to be enforced narrowly.

Edward Fox, St. Jude’s lawyer, agreed that the stipulation is not conclusive of irreparable harm. But, then, what is it? “Is it an admission, is it a prediction, is it an estoppel?” Justice Lillehaug questioned both Fox and Chester.

Minnesota Litigator prediction: the Minnesota Supreme Court will overrule the decision of the Minnesota Court of Appeals. If a trial court is not bound by an “irreparable damage clause,” a proposition that both sides agree to, the trial court can exercise its discretion to decide whether irreparable damage occurred and St. Jude loses (because this is exactly what the trial court did in St. Jude’s case).

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Look at the happy students! Imagine the infra-cranial chaos behind every single one of these kids as their still-developing brains grapple with the leap from the innocence of childhood to the fraught and complex interrelations, interactions, politics, and power of adult relationships!

This week, Sr. U.S. District Court Judge Donovan W. Frank (D. Minn.) dismissed all three allegations in a student’s complaint against St. Paul Conservatory for Performing Arts. Plaintiff’s complaint stemmed from the discipline that had been imposed on him regarding complaints of other students that he had sexually harassed them.

While the motion to dismiss was pending, however, U.S. Magistrate Judge Franklin L. Noel (D. Minn.) allowed the Plaintiff to amend his complaint to add a claim for negligence. Therefore, there is still an active pending lawsuit, but, out of the blocks, plaintiff’s claim does not seem compelling.

 

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update (June 26, 2018): We saw this one coming. (Plaintiffs win on their motion for summary judgment, defendants lose on theirs).

Update (May 16, 2018): From the looks of it, Defendants Geckobyte.com, Inc., and R. Tiegen Fryberger did not enter the ring to win the match in their lawsuit in the U.S. District Court (D. Minn.). They were dragged into the ring. They do not appear to want to fight very much, if at all. On the other hand, they are obviously unwilling to forfeit the match.

As discussed in the original post (below), the Riddle et al. v. Geckobyte, et al., lawsuit is a common scenario in U.S. civil litigation involving small businesses: one business buys another and either they buyer protests that the purchased assets were not “as advertised” or the seller protests that buyer’s payment(s) were not made as promised (and often both). (These problems seem particularly common when the seller is to work for the buyer’s business and seller’s payout is based in significant part on post-sale business performance.)

In this case, Plaintiff is the seller, seeking to be paid for the business he sold to Defendant. Defendant’s defense seems to have been a variant of rope-a-dope, in which a fighter seems to take the opponent’s punches to tire him out, then slips out of passivity when his opponent is exhausted, to pummel the tuckered-out fighter. (See arguments on plaintiff’s summary judgment motion on defendant’s counterclaims here, here, and here).

Rope-a-dope, as the linked article points out, was a dubious and flawed strategy in real boxing. It seems worse in the context of civil litigation.

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