We will resume our posts next month.

Thank you, as always, dedicated readers — for your comments, quibbles, queries, and tips, all of which we deeply and sincerely appreciate — even the blistering critiques we get from time to time.

(All professionals must be able to tolerate, if not treasure, sincere and thoughtful criticism.)

Keep it coming! Keep on reading! Keep on tipping!

 

Close readers of Minnesota Litigator might have noticed a shift from the first-person singular pronoun to first-person plural. As posted May 1, LEVENTHAL pllc recently doubled in size . We officially became “us,” you might say. And at the end of that post, we promised, “A more formal introduction to follow in days to come.” This is it.

Brandon Meshbesher, a Minnesota native, graduated from the University of Denver in 2012 with a B.A. in English and Political Science. He graduated from the University of Minnesota Law School with his J.D. in 2015. He is a member of the Minnesota state bar and is also admitted to practice before the U.S. District Court for the District of Minnesota. After law school, Brandon worked as a Bridge Fellow for United States District Judge Susan Richard Nelson (D. Minn.) and as a Law Clerk to the Honorable Michele A. Davis in Wright County, Minnesota.

We are extraordinarily fortunate and grateful for the opportunity to work with Brandon. We could go on at great length as to his many gifts and strengths but, as those who know Leventhal well, such testimonials often leave us verklempt and we are too busy for that. Suffice it to say, if you know Brandon, you know how fortunate LEVENTHAL pllc is to be associated with him; and if you don’t yet know know Brandon, we hope you get the chance some day soon.

Update (June 21, 2017): We have covered the lawsuit of Kristin Naca v. Macalester College previously. Ms. Naca has had limited success so far in her lawsuit against the college which is based on her having been fired from her position as an assistant professor of poetry for allegedly inappropriate conduct with a former student. Now Ms. Naca is trying to amend her complaint a second time. (U.S. District Court Judge Patrick J. Schiltz (D. Minn.) struck her first complaint, requiring her to amend already once before.)

Macalester College’s opposition to Ms. Naca’s recent motion to amend is blistering. But we note that the use of typography to communicate intensity is significantly toned down from another brief by lawyers at the same firm, the subject of the original post below.

In our view, hard-hitting language written in a subdued tone is actually far more persuasive and effective than rhetoric that is bombastic, typographically or otherwise. Compare this to this and see what you think. Obviously, the subject matter is dissimilar. The audience is not identical (different judges). And there is no empirically provable better approach. Having said that, there can be little dispute that a somewhat detached, dispassionate, and reserved tone is the safer course in legal writing.

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Photo by Jonathan Rotondo-McCord

There are very few lawyers in Minnesota that have developed substantial experience bringing legal malpractice cases because: (1) it is not very profitable; (2) there are not many cases (because, contrary to widespread opinion, most Minnesota lawyers are excellent and perfect); and (3) healthy people do not like to inflict pain on themselves.

(Lawyers suing lawyers seems a hair’s width from self-flagellation. That is, “There but for the grace of God go I….” or “People in glasshouses…” or “Takes one to know one….”  or “Pot calling the kettle black…” etc.). Really, this three-factor explanation is just a variation of what we have previously called “the three C’s” (cost, causation, and culture) that make successful legal malpractice cases rare and very difficult.

Exhibit 1: One of the most widely known plaintiff’s side legal malpractice lawyers in Minnesota, Paul Sortland, sued one of the other most well-known plaintiff’s side legal malpractice lawyers, Patrick O’Neill. O’Neill had missed a deadline in a malpractice case, which was dismissed due to his failure to meet the deadline. The case went all the way up to the Minnesota Supreme Court on mechanics’ lien issues relevant to the underlying alleged malpractice. The “second layer” legal malpractice case against O’Neill was sent back to Hennepin County District Court, went to trial, and resulted in a total defense win by jury verdict (with defendant represented by the formidable legal malpractice defense demi-god, Phil Cole).

Exhibit 2: And more recently, Mr. Sortland was unable to get Minnesota Supreme Court review of another legal malpractice case that he brought. This, again, highlights the challenges that these kinds of cases present.

The excruciating facts of Leach et al. v. Turman & Lang, Ltd. are that the plaintiffs, represented by Mr. Sortland, sued lawyers, Turman & Lang, for a supposed “scrivenor’s error” by a Turman & Lang lawyer in a purchase agreement. But then plaintiffs’ malpractice complaint against Turman & Lang, itself, included “obvious typographical errors” that seems to have rendered a key paragraph in their malpractice complaint incomprehensible. So the plaintiffs’ malpractice case was dismissed by the trial court and the dismissal affirmed by the Minnesota Court of Appeals.

Aaargh.

A lawyer’s error in a lawsuit based on a lawyer’s error resulting in the dismissal of the lawsuit brought by a lawyer who unsuccessfully sued another malpractice lawyer for his error that resulted in the dismissal of his client’s case, alleged to have been caused by that client’s previous lawyers.

Turtles all the way down? Keystone Cops?

In the original posts, below, we covered the horrific case of child-care center negligence that resulted in serious injuries to a 3 year-old child, who had been attacked by a 9 year-old child (“J.K. v. New Horizon”).

As in many high-dollar tort cases that involve businesses, J.K. v. New Horizon spawned additional related litigation about an insurance company’s coverage obligation.

Specifically, the lawsuit of RSUI Indemnity Company (“RSUI”) v. New Horizon, is a lawsuit brought by the excess insurance company seeking a ruling by the U.S. District Court (Kyle, J.) that a policy exclusion applies (the “Sexual Abuse or Molestation Exclusion”).

There was no dispute that a physical attack occurred, which harmed “J.K.” But whether there was also “sexual abuse” was “hotly disputed.” If it did occur, (1) what proportion of the jury award was for damages due to the physical attack (for which there would be coverage under the policy) vs. due to the sexual abuse (for which there wouldn’t be), and, (2) if that matters, as between the insurer and the insured, whose problem is it that the jury did not allocate its award between “physical assault” damages and “sexual abuse damages”?

But what readers might find interesting, or even strange, is the strategic decision-making of an excess insurer under these circumstances.

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Update (June 12, 2017): Legal analysis can be complicated, which is why legal reasoning is generally transmitted in writing, rather than orally. Lawyers (and lawmakers and judges) must set out their words and ideas with great care.

But in trial, we all have to “think on their feet” and, of course, “speak on their feet.” It is sometimes painful that our spoken words are transcribed because they very often seem inarticulate.

During the Blue Cross Blue Shield v. Wells Fargo trial, U.S. District Court Judge Donovan Frank (D. Minn.) said:

But with respect to not submitting the [Deceptive Trade Practices Act claim] to the jury, what’s the procedural — I want to just make sure there’s a meeting of the minds by counsel, well, here’s — we agree to that but we don’t agree, or we do agree and here’s how that will be decided with or without the jury’s verdict.

Umm, what?

Judge continued:

Then that raises an issue in an entirely different case that actually—it’s a case—by just saying what I am about to say, people could figure out what case it is because it is about to get tried a third time. I am overly sensitive because I have been reversed one time on a jury verdict in 29 years, and it was a year and a half ago or whatever. That is exactly—on a separate issue that didn’t result—it was a very [un]usual state statute where I—the Eighth Circuit ruled, and it is the Vaidyanathan case is which one it is, the state statute, they ruled, is more like a criminal statute with specific intent. And I treated it more like a fraud statute, so now it was back, and the jury hung up on the second trial. Well, what does that got to do with this? Well, now, even though we’ve tried it twice—and it’s good faith arguments; I will just assume that for both sides. One side is saying, Judge, even though you threw out the Plaintiffs’ promissory estoppel, the equity claim that was tried to you as part of the jury case, even after the jury came back with a $2 million verdict that was then reversed by the Eighth Circuit, even though you did that, we now claim—this would be the Plaintiffs’ argument—we now claim that somehow that is inconsistent with the [jury verdict] —so you were bound by something that the—in the contract case. So, therefore, you have to try them together, even though we still agree it is all up to you, Judge. And even though I don’t agree with that, and I don’t believe the Eighth Circuit does either—that’s really why I raised—the question is, well, is there something the jury is going to do that the two of you don’t agree on the procedural effect? And maybe, obviously, if counsel agrees with what you just said, then it is a nonissue. If they don’t, I guess I will have to hear from you briefly.

(Emphasis in original at p.6.)

The lawyers responded:

[Plaintiffs’ counsel]: It is an injunctive count, and we think liability and relief is for the Court to decide….The standard is it is a different cause of action; it is injunctive relief only. It is a cause of action for the Court to determine.

THE COURT: [Defendant]?

[Defendant’s counsel]: Certainly wouldn’t disagree that the injunction lies with the Court. I just don’t understand where it fits in with this[.]

Now, relying in large part on those two ambiguous sentences by defense counsel, Judge Frank has decided that Defendant Wells Fargo waived it right to argue the benefit of the jury verdict in its favor binding the judge’s subsequent determinations of non-jury issues.

One has to have sympathy for a lawyer whose vague extemporized words at trial on June, 2013 (in a case that had been litigated for two years before that) are construed against his client four years later. All hope is not lost, of course. I strongly suspect that the U.S. Court of Appeals will have another opportunity to review this case in the coming months.

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What can U.S. employers do about the apparently constant threat of “brain raids” — when employees accumulate vast reserves of an employer’s valuable, confidential, commercial information and then jump ship with it to a direct competitor?

Obviously, they can devise strong employment contracts, confidentiality agreements, non-competition agreements, and they can go to court to try to enforce those agreements consistently and aggressively. This is done every day throughout the country. (Here is a link to a Minnesota-based Nilfisk‘s complaint against a former employee who allegedly jumped ship to join Minuteman International with all types of Nilfisk valuable property.)

But these cases can be incredibly expensive. They can also be disastrous for the “raided” company (as in Sorin Group v. St. Jude). After all, there are no guaranties in war or litigation.

Here’s simple solution: how about implanting “kill switches” in workers? If they violate company policy, the workers can simply be “deactivated”?

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Update (June 8, 2017): In the lawsuit brought anonymously against Uber for a sexual assault, discussed below, “Ms. Doe” has voluntarily dismissed her lawsuit against Uber “without prejudice” (meaning that she keeps the right to bring a subsequent lawsuit based on the same allegations).

Original post (June 5, 2017): Social change may be like an approaching hurricane or a tsunami triggered by an undersea earthquake. We see the dangers coming. But there is little we can do in the short time before landfall.

The so-called “gig economy” has been economically transformational in the United States and worldwide. There are many, however, who argue that it has been transformational in a bad way.

Enter Uber. Isn’t there something inherently dangerous about a business model that includes thousands of mobile transient workers (not full-time, not even considered employees) who interact with vulnerable strangers, sometimes in isolated and precarious situations? If your answer is “yes,” who should be held liable when the generally foreseeable but specifically unpredictable disaster strikes?

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Hennepin County District Court Chief Judge Ivy S. Bernhardson issued an order this week that got broad attention in the media because it dealt with a family fight over tens of millions of dollars and a locally familiar supermarket chain (Lunds & Byerlys).

The media pay attention to such cases because most of us are fascinated by very rich people. Furthermore, many of us find it particularly interesting and gratifying when they get into fights.

Actually, here at Minnesota Litigator, we have our doubts that very rich people warrant much interest generally, and their family fights, maybe even less so. On the other hand, when tens of millions of dollars (or more) are sloshing around between various financial accounts, owned and controlled by different people, the reverberations of these rich family battles do spread far beyond the parties themselves (to many indirect stake-holders – interested financial institutions, businesses, financial advisers, hangers-on, interested charitable institutions, etc., etc.).

But Minnesota Litigator’s interest in the Lunds’ fight is far more narrow. Our interest is in highlighting Judge Bernhardson’s extremely well written, thorough, and thoughtful order.

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Update (June 2, 2017): The prohibition of “champerty” —  the sale of a share of one’s interest in a lawsuit to “a stranger” —  may seem antiquated to many (and bad policy to some) but it is clearly alive and well in Minnesota.

In the post below, we were critical of Minnesota courts’ prohibition of “champerty.” Prospect Funding sought Minnesota Supreme Court review of an adverse decision in which the Court of Appeals identified a “strong public policy” against champerty. Recently, the Minnesota Supreme Court sided with Ms. Maslowski and rejected Prospect Funding’s petition for further review.

Original Post (February 15, 2017): “Champerty” is “an agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigant’s claims as consideration for receiving part of any judgment proceeds.”

Sound familiar? Ever heard of a “contingent fee agreement”?

Contingent fee litigation, in which lawyers recover for their time by taking a percentage of the litigant’s recovery is NOT considered “champerty.” Apparently, lawyers are not considered “strangers” to the lawsuits in which they claim a contingent fee interest. That is convenient. No one questions the legality and propriety of lawyers’ contingent fee agreements.

The general purpose of the law against champerty…is to prevent officious intermeddlers from stirring up strife and contention by vexatious or speculative litigation which would disturb the peace of society, lead to corrupt practices, and pervert the remedial process of the law. In other words, the prohibition on champerty and maintenance is aimed at discouraging intrusion for the purpose of mere speculation in the troubles of others.”

But wait. Hold on. When a court steps in to void a contract between two sophisticated private parties, who’s the officious intermeddler again? “Stirring up strife”? “Vexatious litigation to disturb the peace”? “Intrusion in the troubles of others”? Give us a break. None of these characterizations correspond, even remotely, to reality.

In reality, the controversy of “litigation funding” is all about money and has nothing to do with trouble-making.

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