Cow in WinterA few years ago, a younger lawyer emailed me that she was shortly to be on a “vaca.” That’s the Spanish word for a cow. It is also, I then learned, sometimes pronounced “vay-kay” and then it means “vacation.”

Minnesota Litigator will be out to pasture on a vaca from October 3-10 but, after that, will be back serving up more rare-to-well-done Grade A Prime Blog Beef.

In the mean time, check out these excellent other law blogs:

(or just buckle down and get back to work?)

CatAndMouseChaseJeorenMoeszI have recently posted quite a bit about St. Jude’s lawsuit against Mr. Grubiak in which St. Jude plays the role of betrayed employer and Mr. Grubiak, the black-hatted turn-coat (from St. Jude’s perspective).

Imagine my surprise to stumble across Sorin v. St. Jude, wherein Sorin plays the role of betrayed employer and St. Jude, the shameless poacher (from Sorin’s perspective). Mag. Judge Jeffrey J. Keyes, U.S. District Court (D. Minn.) has recently allowed Sorin to amend its complaint to add a claim for punitive damages. This is rather rare in Minnesota case law.

There are some juicy tid-bits in the opinion such as a $1,200 meal tab for the courtship of “several” Tampa physicians.

Query: wouldn’t you much rather believe that your heart doctors are picking their medical devices to implant into you based on their belief that they have outfitted you with the best device rather than based on their attachment to the device salesperson and a $1,000+ dinner tab? (I suppose it is possible that there is a medical device salesperson whose technical knowledge and expertise is worth as much or more than the particular device sold…Really???)

HourglassUpdate (October 1, 2015): Below, I argued for a permissive and flexible application of a rule concerning a scheduling order but, for reasons stated by the judge from the bench (but not published in a written memorandum or order), U.S. Mag. Judge Hildy Bowbeer (D. Minn.) denied the plaintiff’s request to amend its pleadings after the deadline for amendment of pleadings.

The day the judge ruled, there was also an unsuccessful settlement conference in the case. But just three days after the unsuccessful settlement conference and the denial of plaintiff’s motion for leave to amend, the lawsuit settled. Today (three days after the trial was supposed to have started), the lawsuit was dismissed.

Original Post (July 28, 2015): Which is more just: allowing for “substantial compliance” or requiring “strict compliance”? Requiring “actual knowledge” or allowing for “constructive knowledge”?

(“Constructive knowledge” is a legal fiction whereby courts can avoid requiring “knowing or proving what is inside a person’s mind” and, instead, courts can require certain steps be taken that would tend to ensure notice and knowledge, after which the court simply assumes knowledge, “constructive knowledge,” that is (really, “constructed knowledge,” “imputed knowledge,” or “well-if-you-didn’t-know-X-then-that’s-your-problem – we’re going to pretend you did”).

How about deadlines? Do you favor courts’ “strict” application of the rules or “flexible” application? Some fans of “strict” application would call “flexible” application, “non-application.”

How about, for example, when a party wishes to amend a pleading (that is, a complaint, an answer, a counterclaim, and the like) after the case schedule deadline? Should courts apply those rules strictly or should they bend them in the name of justice?


Jewel Osco Congratulates Michael Jordan ADJPGFrom time to time, Minnesota Litigator busts out of its jurisdiction (defined as “News and Commentary on Minnesota Civil Litigation”) to neighboring states or to bloviate randomly as to some other distantly related subject matter. Minnesota Litigator is particularly prone to wanderlust when Minnesota civil litigators are in the news outside of Minnesota, and even more so if they are in high-profile cases.

So, in light of that, a brief note on Michael Jordan v. Jewel-Osco et al., because of Jewel-Osco’s ad, reproduced here, on the left. Lead counsel for Defendants in this case is our own Tony Zeuli of the power-house intellectual property law firm of Merchant & Gould. [Editor’s full disclosure: Tony is a friend of the author.]

Sports Illustrated ran a special issue for Michael Jordan’s induction into the Basketball Hall of Fame and Jewel-Osco paid for this congratulatory ad to the left, without paying Michael Jordan for the right to congratulate him in print with this ad.

How dare Jewel-Osco???

Bear in mind: Michael Jordan is no longer a professional athlete. He probably has NO INCOME anymore. He’s probably destitute. I am speculating. I do not really have first-hand knowledge but, seriously, he’s probably unemployable, between his inability to play at pro level ever again and the ruckus it would cause if he were to work in a normal office setting. I am sure that would be quite disruptive. I suppose he could work at a call-center or something but even then, he’d probably have to work from home.

The previous two paragraphs were intended ironically.

I am sympathetic to Jewel-Osco and disappointed in MJ and his handlers. So, apparently, was the trial court, by the way. The trial court threw the case out, only to be reversed on appeal to the United States Court of Appeals for the Seventh Circuit. And now the case is back at the trial court and headed for trial on December 8 in Chicago.

Picking a jury in a case like this would seem to me to be the wholly enchilada in this case. Some, whether overcome with awe at Jordan’s fame or profoundly respectful of the “right of publicity,” would undoubtedly lean toward a substantial sum for Jordan. Others (like me) would lean toward sending a clear message of humility to the mighty (whether Jordan himself or the legion of lawyers, promoters, branders, etc.who make money by “protecting” Mr. Jordan’s “right to publicity”).



Evil Satan DevilUpdate #2 (Sept. 30, 2015): And now we know how much it cost Plaintiff Great Lakes Gas in attorneys’ fees to fight in the case, described below, for six years (over $5.1 million). Whose pocket should that come out of? Whose pocket will it come out of? Stay tuned….(I bet I could have done it for less than $5 million.) 

Update (Sept. 30, 2015): The previous “Pyrrhic post” was about a trial win that probably cost more than the plaintiff was able to recover.

The case discussed below falls into the other category: a case where it looks as if an investment of millions of dollars of lawyer time was cost justified.

The recent trial in a case that went for nearly six year resulted in a jury verdict (after 90 minutes of deliberation) that the applicable discount rate was 4.30%. As discussed below, this did not give Minnesota Litigator the slightest clue of what kind of money they were fighting over. This past week, however, we got our answer: somewhere in the neighborhood of $36-37 million.

Update (August 19, 2015): The case, discussed below, was litigated for nearly six years. Trial on the last remaining issue, the appropriate discount rate, took one day. Jury received case at 11:09 a.m today and returned a verdict at 12:39 p.m. today, determining the discount rate to be 4.30%. I would be curious to know what the “swing” was — the likely range of the jury’s decision in dollars — to determine whether the half decade (and then some) of litigation was really worth it for the litigants. (I noted that plaintiff’s expert was $600/hour, incidentally and there have been 969 entries on the docket of this case since it was filed in October, 2009.)

Original post (August 17, 2015): For those of us Minnesota litigators with relatively small and legally unsophisticated clients, there is often a discussion early on in the attorney/client engagement about the high cost of civil litigation and the high uncertainty of civil litigation.

“What? You mean this could cost more than TWENTY THOUSAND DOLLARS???!!!” some potential clients will say, sincerely stunned.

“HUNH? We could lose even though THE GUY ADMITTED HE TORTED ME OR WHATEVER YOU CALLED IT???!!!” another potential client might cry out in confusion and despair.

Actually, it’s a whole lot worse than that. The more you study any particular legal dispute, the more complexity you find, and the more uncertainty you are likely to unearth.

“Hold on, Mr. Minnesota Litigator,” you counter, “What about a slam-dunk debt collection? You can’t guaranty a win even in one of those cases? You cannot guaranty or cap fees???”


CatAndMouseChaseJeorenMoeszturkey-520632_1280Update (September 29, 2015): Linked is U.S. District Court Judge Ericksen’s pretrial order in the St. Jude v. Grubiak lawsuit, discussed below.

A couple of things are notable: (1) Motions in limine are due right before Thanksgiving and responses to motions in limine are due right after. In light of the litigation styles on both sides of St. Jude v. Grubiak, one can predict a slew of motions to draft and to respond to. Time for these trial teams to call in reinforcements for the feast preparation. Time to pull the plug on all out-of-town trips; (2) Note that this pretrial order actually applies to two different lawsuits at the same time. So, as much work as this looks like for St. Jude and Grubiak lawyers, the Court (which has far fewer lawyers) is doing double-time (though we have to assume that the other case will not generate the paperwork of the Grubiak case).

As I tuck in my bib, loosen my belt, and tighten my goggles before throwing myself into the Thanksgiving feast this year, among my many blessings, I will count not being involved in either of these cases…

Update (September 11, 2015) (under the headline: St. Jude v. Grubiak: The “Duty to Rat” And Top Card Minnesota Civil Litigator Combat): St. Jude brings a motion for partial summary judgment and a motion to exclude a Grubiak expert. Grubiak brings a motion for summary judgment and a motion to exclude a St. Jude expert. U.S. District Court Judge Joan N. Ericksen denies them all this week. Priceless.

Well, maybe not priceless. In fact, undoubtedly very pricey. Should the litigants be annoyed with their lawyers for the pointless (in hindsight) lawyers’ fee fest? 20/20 hindsight is always dicey and we will never know the extent that decisions were client-driven or lawyer-driven (or a combination with informed consent). Plus, who knows what kind of fee arrangements are in place? Maybe the money’s coming out of the lawyers’ pockets for all we know. (I doubt it.)

Having said that, I have to say I envy the large firm lawyers with the well-heeled clients who do not seem too bothered by paying for losing motions. I have to assume that because, in my view, at least one of these motions was a real stretch.

I also note a nestled “zinger” or “bench slap” in the order at pp. 8-9 where Judge Ericksen appears to chide Grubiak counsel, “The Court’s own research revealed cases that are inconsistent with the authority cited by Grubiak….The issue is not adequately briefed. The Court declines to dismiss SJMSC’s claims at this time…” (OUCH.) (In fact that’s maybe a little slap to all counsel in the case, right? Grubiak seems to be chided for failing to come up with “inconsistent authority” but the Court makes it seem like St. Jude’s counsel missed the cases as well?)


Bob Cattach

Bob Cattach

Update (September 29, 2015): Bob Cattanach’s gets gets some real ink (a nice article by Randy Furst in the Star Tribune today.)

Update (September 21, 2015): I am a bike-rider in his fifth year of year-round bike commuting (go to this page and scroll down) and I have been known to say, “If you have not had a bike accident, you’ve not ridden your bike enough.” A cast-off aphorism like that is meant to be witty or thought-provoking (both of which are admittedly debatable). It’s a kind of humble-brag, often used to preface warriors’ baring their scars and telling of the crashes they have survived. Another lawyer humble-brag is, “If you haven’t lost trials you should have won or won trials you should have lost, you haven’t tried enough cases…”

I am pretty sure that Bob Cattanach has earned the rights to these humble-brags and many more. Linked is a decision in which Cattanach and his lawyers beat back the railroad’s attempt to win the case on summary judgment on Cattanach’s complaint against the railroad based on a bike accident.

(Sidetrack to BNSF (or whomever is responsible for the track at this location): I am concerned about the track at Beltline Boulevard in St. Louis Park Minnesota where it crosses Beltline a few feet from the Cedar Lake Bike Trail. That’s a frigging chasm you are forcing bike-riders to cross over. The ties are rotten. Don’t wait until someone kisses rail head. Time to mind the gap…)

Read on for the original Minnesota Litigator interview with Bob Cattanach of Dorsey & Whitney LLP.


Mexican_wolf_pup_(6411046205)Update (September 28, 2015): In a more recent Wolfchild case which may or may not relate to an earlier Wolfchild case mentioned below on Minnesota Litigator in 2011, Minnesota trial lawyer, Erick Kaardal, might have gone too far in advocating a case without a proper basis in law or fact. And he’s facing some stiff sanctions that U.S. District Court Judge Michael J. Davis (D. Minn.) has refused to stay pending appeal.

It’s bad. It’s real bad. One issue that must be very uncomfortable is that the parties and Kaardal’s law firm are jointly and severally liable for the $281,906.34, to be paid in 30 days. I feel nauseous just thinking of the conversation with the clients about this. The nausea replicates ten-fold at the thought of discussions with the law firm partners…

Original post (February 6, 2011) (under headline: Wolfchild: A Career Case): Twin cities lawyer, Erick Kaardal, has been so deeply involved in a single case for such a time that it must qualify as a “career case.”   It was a single case that used to have its own dedicated webpage on attorney Kaardal’s law firm website (9/28/15 update: Minnesota Litigator link removed because linked page removed).

The lawsuit is on behalf of lineal descendants of 19th Century Native Americans who made a deal with the U.S. Government which, apparently, failed to uphold its side of the bargain.  The case, started seven years ago, appears to be nearing some kind of resolution.

"Pyrrhus" by Catalaon - Own work. Licensed under Public Domain via Commons -

“Pyrrhus” by Catalaon – Own work. Licensed under Public Domain via Commons –

A pyrrhic victory is simply a victory in which the costs of the war exceed the spoils of the war. To use a term that was popular in the subprime mortgage lending meltdown, in a pyrrhic victory, the winner ends up “upside down” (having paid lawyers as much or more than the plaintiff recovered).

This is a deeply frustrating aspect of our civil justice system.

So I am sympathetic to Plaintiffs David and Hiba Stemm, et al., who brought a lawsuit against TempWorks Management Services, Inc. and won in a bench trial before Hennepin County District Court Judge Kristin A. Siegesmund.

Judge Siegesmund’s Finding of Fact, Conclusions of Law and Order for Judgment are quite solidly in favor of the Plaintiff in the lawsuit. Although the story will not be made into a major motion picture ever and the facts make for dry reading, one can also feel the sense of drama and excitement over Plaintiffs’ new business venture which appears to have been derailed by the defendant, TempWorks, just three days before launch.

TempWorks appears to have agreed to provide Plaintiffs with required workers compensation insurance to get the new business off the ground, then realized that this would be more work that TempWorks wanted to deal with, so it abruptly terminated its agreement with Plaintiff (see Conclusion of Law, Para. 62). Then, to flesh out the unsavory portrait of the Defendant, Judge Siegesmund goes on to find that TempWorks had no evidence for its alternative explanation for its eleventh hour bail-out (Conclusion of Law, Para. 63).

The kicker, though, is that Judge Siegesmund substantially lowered Plaintiffs’ damage claim, finding it to have been “speculative,” and awarded the Plaintiffs only $74,300. Plaintiffs’ counsel, George Antrim III, is a deeply experienced Minnesota trial lawyer who enjoys an excellent reputation. But could he possibly have cost much less than $74,000 to take this case to through trial? Or perhaps it cost more?

P.S. Thanks to an anonymous tipster for passing on this decision, which is a bit stale, having been decided in February of this year. This, yet again, highlights the importance to open, on-line, remote access to Minnesota civil court filings. Cases like the Stemm case are important public events but the public has almost no access as a practical matter to trial court decisions, which they might find extremely informative and useful.

Lewis_Remele_Web_2012Minnesota Litigator has interviewed and featured lesser known Minnesota civil litigators for years — experienced litigators whose expertise is narrow and deep so they tend not to be widely known in the community.

This profile deviates from that practice. In my view, Mr. Lewis “Lew” Remele’s reputation and accomplishments in Minnesota civil litigation for decades have been broad, unrivaled, and unsurpassed.  So, I have to assume that many civil litigators are very well aware of Lew. But read on, get to know him better, and learn a few things:

ML Interviewer: I’m extremely grateful for you doing this. I regard it as an extremely generous thing. I know that the readers will like it. 

Lew Remele: Well, I’m glad that you’re doing the blog because I think it’s really helpful to have all this dialogue around what the practice is doing and how it’s working because, I was just telling somebody the other day that, in fact — Fred Finch has been real involved over the years in the ABA — he’s been the delegate. He said apparently, they’re now even debating at the ABA level whether they’re going to have the convention anymore because lawyers really don’t either (1) have the time or (2), don’t have the inclination to get together anymore to discuss generalized issues related to the practice. Everything is so specialized so, at the ABA level it’s the same thing. At the state level the sections have essentially taken over and subsumed general bar meetings that’s being done. As a result, you just can’t get anybody to go to the conventions. It becomes really difficult; things like this are really important for lawyers that communicate with each other and have an outlet to talk.

ML Interviewer: I’m, of course, delighted to hear you say that. I love when I get feedback, even criticism at any time from anybody. The thing I thought I’d just start off with … Basic questions about you personally because I think that would be interesting in light of all you’ve achieved. Where are you from originally?

Lew Remele: Well, I’m from Minneapolis but, I didn’t grow up here. I was born in Minneapolis but my father was in the grain business. We lived in Minneapolis until third grade. Then, from third to seventh grade, I lived in Duluth, Minnesota. From seventh grade to tenth grade, I lived in Buffalo, New York; a suburb of Buffalo, New York. Then, I actually graduated from high school in New Orleans, Louisiana. Then, went away to college from New Orleans.

Everybody, all my family, my grandparents, my cousins, were from here. This was always considered home. When I graduated from law school, I took a couple years off between college and law school, in ’75. I really didn’t intend to practice here. I intended to go back out East to practice. I ended up taking a clerkship with U.S. District Court Judge Miles Lord [(D. Minn.)] at the time he was just winding up the Reserve case, and then he was trying the Tetracyclene Price Fixing cases. As a result of that and clerking, then I realized that it was really kind of nuts not to practice here, which I’m really glad … I think I would have greatly regretted it if I hadn’t.

Everybody in my family was a lawyer, except my father. Both my grandfathers, all my cousins, all my uncles …

ML Interviewer:                In town here?