brain-499311_1280If devices are collecting data about us all, all of the time, forever onward — data that we knowingly create (text messages, for example), data we passively allow to be collected (geo-location, for example), data that is collected about us constantly without our knowledge — it is not an extreme leap to suggest that other people are able to climb into our minds and the minutiae of our lives as they never could before.

Show a computer forensics expert someone’s personal computer, his smart phone, and so on, and it is possible she will come to know that person, perhaps as well as the subject’s own family knows him.  Maybe better.

Lawyers and courts are making progress toward harnessing these breath-taking new technologies and capabilities, as noted in yesterday’s post.

See the linked recent order from the U.S. District Court (D. Minn.) about an e-discovery protocol. “SHA-1 hash values”? “Parent and child documents”? “Filtering ESI against NSRL NIST file listing”? “300 dpi CCITT Group Four compression black & white single page tiff images”? Try finding such terms in a court order about electronic discovery just a few years ago.

And if these terms are completely foreign to you and your law firm, you better study up. Whether you embrace the digital age or curse it, we live in it and we work in it.

Pinch-Points-Clear-Caution-Sign-S-2874Update (November 24, 2014): LEGAL MACHINERY.  PLAINTIFF’S LAWYER WARNING: if you take on any significant contingent fee litigation, there is a downside in addition the sunk costs of your uncompensated invested time. There is a real and present risk of being tagged with defendants’ substantial costs. ($37,000 in photocopy costs!?) (I note that defendant Home Depot was dismissed from the case shortly before trial. I imagine that might have happened in exchange for the payment of money to the Plaintiff. So maybe the net is not negative for the plaintiff and his lawyers?)

Previous post (October 24, 2014) (under subjectThull v. Techtronic: The Jury Reached a Verdict (for the Defense): Minnesota Litigator has followed the Thull v. Table Saw manufacturer litigation for a while now.

In fact, this lawsuit is attracting attention in far-away places for a while now.

Here are the Court’s final jury instructions.

How much do jury instructions matter? How much do they influence juror decision making? Some studies have suggested they matter little. Assuming they do matter, do these instructions nudge the fact-finder one way or the other way? We will never know for sure. Here is the verdict.

Cvr_sidefront_largeFor a long time now, commercial airplanes have been the most dedicated autobiographers on earth. They obsessively record every mood swing, their petty issues with wind speed, engine function, cockpit chit-chat, and so on…

(We call the airplane’s diaries “black boxes” but, of course, that would hardly be convenient when rummaging through the wreckage at crash sites.)

All of us with smart phones are catching up to the airlines. And if you have a “fitness tracking” device, there’s that too. We’re packing “flight recorders.” If you’re a dataphobe/technophobe, this is worrisome. If you’re a dataphile/technophile, it’s all good (and getting better every nanosecond).

But the fact is that probably none of us knows how this will play out. But play out it will. It has changed and will continue to change the practice of law, the rules of evidence, and trials.

Kate Crawford recently wrote a piece in The Atlantic about the use of “Fitbit activity data” in a trial. I recommend you read the whole article. It is not long. She concludes:

[T]he Fitbit case may be just one step in a much bigger shift toward a data­ driven regime of ‘truth.’ Prioritizing data—irregular, unreliable data—over human reporting, means putting power in the hands of an algorithm. These systems are imperfect—just as human judgments can be—and it will be increasingly important for people to be able to see behind the curtain rather than accept device data as irrefutable courtroom evidence. In the meantime, users should think of wearables as partial witnesses, ones that carry their own affordances and biases.

Museum_für_Indische_Kunst_Dahlem_Berlin_Mai_2006_036_2

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.

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Brass_scales_with_cupped_traysYou retain a lawyer in year 1 to help you in a trusts and estates matter. The lawyer assists you for ten years. In year 12, new lawyer identifies that the first lawyer you hired did a bad job and the lawyer’s substandard performance of work resulted in large otherwise avoidable tax liability. New lawyer sues old lawyer on your behalf in year 13.

The statute of limitations is six years.

Question: Is the malpractice claim barred by the statute of limitation?

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EclipseUpdate (November 19, 2014): Should the sanctioned lawyer and his sanctioned law firm get some kind of “bonus points” for effort or for the creativity for their response to the latest motion brought against them to pay up on the sanction levied against them last summer, described below? What are they thinking?

Original post (October 15, 2014) (under subject line: How Much Would You Pay to Buy $20,540.50?): Seriously. I will sell you $20,540.50 if the price is right. (And it might be less than $20,540.50, by the way. depending on your delivery date (plus shipping and handling)). Give me a jingle.

The reason I pose this silly question is that Plaintiff Aviva Sports won an award of sanctions for $20,540.50 in July, 2013 and, to date, it has not gotten any money. How much should Aviva and its lawyers invest in seeking payment? Most recently. Aviva Sports’ counsel has brought a motion to add a $1,000/day fine on Stephen Lobbin and the Eclipse Group until they cough up the $20,540.50. So, in a year, they’d presumably be entitled to $385,540.50. For which they will have paid how much? The asset of a receivable can become a liability.

 

ShipwreckUpdate (November 18, 2014): When is a meritorious lawsuit more likely a liability rather than an asset? When the defendant is judgment-proof.

I will go out on a limb and predict that RAzOR Capital, the subject of an earlier post, below, will win on its recent motion for summary judgment against HP Debt Exchange, LLC. But that, plus about $2.00, might only get Plaintiff RAzOR a small cup of coffee.

Some time ago, I praised a resounding victory of a mortgage lender, RFC, in a mortgage repurchase case against Terrace Mortgage and that win included a hefty award of the plaintiff lenders’ attorneys’ fees. But, remember, the Court does not literally award prevailing parties’ attorneys’ fees. The Court does not cut the check. In the relatively rare circumstances where plaintiffs (or defendants) are awarded their legal fees, the litigants only get the right to get those fees from their adversaries. But if your adversary does not have a commode to micturate into, he can’t pay his own lawyers, let alone yours. You (and RFC) might taste the bitter (and expensive) dust of a resounding but pyrrhic victory. (There is some suggestion that a judgment against Terrace Mortgage might not be particularly valuable: RFC’s efforts to convert its judgment into cash appear to be on-going…)

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Grass Single Nozzle 1In July of 2012, around noon, Lynnette Rae Heitzman was mowing her lawn in Eveleth, Minnesota. She was confronted by a Gilbert, Minnesota police officer, Scott Engelstad, who instructed her to stop her mowing.

Officer Engelstad supposedly had concerns about clippings in the road. The officer says that someone called “911” to complain about  “a large row of grass clippings, about 600 feet long, [that] had been dumped on both sides of Differding Point Road.”

Did the fact that Ms. Heitzman’s brother was “involved in substantial contested matters with [Officer] Engelstad’s wife” (Complaint, Para. 43) influence the interaction between Ms. Heitzman, Officer Engelstad, and the City of Gilbert?

The interaction did not go well. Heitzman alleges that she was screamed at, dragged some distance, thrown against a car, handcuffed, and illegally arrested. Officer Engelstad’s version of the events of that afternoon were entirely different.

Trial starts today on Ms. Heitzman’s claims of excessive force before United States District Court Chief Judge Michael J. Davis (D. Minn.).

Read after the jump about a typical pretrial evidence fight in the case…

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While I love nearly everything about our system of justice, and those who labor in its fields, one occasional exception for me has been the “legal fiction”.  Pick your favorite. There are many examples.  To name a few of current significance:   The corporation as “person”, and money as “speech”.

One of the most laughable of legal fictions, is also one of our oldest.  The bane of trial lawyers everywhere.  It is the “curative jury instruction”.  I was reminded of this last weekend while reading a Pioneer Press account of a local criminal trial in progress. (While the story inspired me to jot this post the same day, I delayed its publication until the trial was complete. The jury delivered its guilty verdict after two hours of deliberation on Wednesday.) (more…)

Update (November 14, 2014): Since my earlier post on Bruce Carneil Webster’s case, below (the death penalty case in which Dorsey & Whitney lawyers are fighting for Webster, a mentally retarded man on death row), Webster lost the appeal before a panel of three judges on the U.S. Court of Appeals.

So Dorsey lawyers undertook the extraordinary challenge of seeking “en banc” review by all of the judges on the U.S. Court of Appeals for the Seventh Circuit of their earlier loss before the three-judge panel. “[E]n banc hearing or rehearing is not favored and ordinarily will not be ordered unless… the proceeding involves a question of exceptional importance.” In fact,  the Seventh Circuit’s own Practitioner’s Handbook says that,  “It is more likely to have a petition for writ of certiorari granted by the Supreme Court than to have a request for en banc consideration granted.”

Putting Mr. Webster to death may be barred by U.S. law. This would appear to be a question of exceptional importance, not just to Mr. Webster, but also to his lawyers, to the entire U.S. Court of Appeals for the Seventh Circuit and for you and me, as well.

Congratulations and best of luck to the Dorsey team in their on-going efforts. Oral argument is scheduled before the all of the active judges on the Seventh Circuit Court of Appeals on January 7, 2015.

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