jeans-315173_1280Minnesota has long followed the hip pocket rule:  a civil action is started when it is served.  A recent change to the requirements has tweaked that rule.  Now an action must also be filed within a year or it is “deemed dismissed.”

What if a plaintiff misses that deadline and the action is dismissed?  Can the plaintiff move to vacate the judgment of dismissal under rule 60.02?

In Gans, the court of appeals said, “yes.”  Rule 60.02 relief is available if the tests under that rule are met.

A concurrence in Gans sheds some light on the issue.  A judgment of dismissal entered pursuant to rule 5.04 for failure to file in time is just as much a final judgment as a judgment on the merits, a judgment of dismissal under rule 12, and a default judgment under rule 41.

In each case, rule 60.02 is available if the standards are met.

The Gans court also addressed one question that has already been decided by the court, but which continues to vex lawyers and judges:  how the four Hinz factors are supposed to be applied.

To refresh your memory, Hinz sets out four factors that apply when deciding a rule 60.02 motion based on excusable neglect. Those factors are 1) a reasonable claim or defense on the merits; 2) a reasonable excuse for the neglect; 3) diligence after notice of the entry of judgment; and 4) no prejudice to the nonmovant.

The district court in Gans decided that, even if rule 60.02 did apply to a dismissal under rule 5,02, it was not available in that case because all four factors were not shown.

In Gans, the court of appeals repeated what has been said before:  all four Hinz factors don’t need to be shown.

A court addressing a rule 60.02 motion is expected to weigh the factors.  However, it must reopen a judgment if all four factors are shown.  And the district court may not reopen a judgment if a key factor is not shown – the factor requiring the moving party to show a reasonable claim or defense on the merits.

The Gans court remanded the case so that the district court can correctly assess the Hinz factors.

Lessons for us attorneys:

  • Watch the clock.  Know when the one-year deadline falls.  If you represent the plaintiff, be sure to file within one year of service.
  • If you screw up and miss that deadline, you may resort to rule 60.02.  But know that those standards can be rigorous and do require you to show a reasonable claim on the merits.


Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

Update (September 3, 2015): This post started as a “land mine” warning for Minnesota trust and estate lawyers: a cautionary tale emphasizing the importance of giving sound legal advice to clients, not just forwarding them legal forms to sign without giving them any legal advice.

The post ends by being a “land mine” warning for plaintiff’s-side legal malpractice lawyers…

 The Minnesota Supreme Court has revived the trial court’s decision in favor of a trusts and estates lawyer who appears to have processed a client’s power-of-attorney (“POA”) form without any consultation at any time with the client. The beneficiary of that POA form (the “attorney-in-fact”) then took all of the client’s money. The trial court threw the plaintiff’s legal malpractice claim case out.

The Minnesota Supreme Court, like the trial court, found that plaintiff’s expert failed to give any detailed opinion as to how the lawyer’s sloppiness caused the plaintiff’s loss. In other words, maybe if the trust/estate lawyer defendant had walked his client through all of the implications of the POA and all of the risks of the POA as drafted, maybe the decedent would still have executed it? The plaintiff’s expert failed to address or eliminate that possibility.

Of greatest interest in this week’s opinion is Justice Lillehaug’s concurrence (joined by Justice Page). In a nutshell, I would describe the concurrence as saying that the majority’s opinion is correctly decided based on current Minnesota law but current Minnesota law in cases of professional malpractice is deeply flawed and needs to be fixed. I agree. The law, as it stands, places fatal land mines around a procedural rule (a requirement of an “expert disclosure”) by imposing a distinction between “minor deficiencies,” which a plaintiff is allowed to address and correct and “major deficiencies,” which a plaintiff is foreclosed from addressing.

As a practical matter, this means that professional malpractice defense lawyers (who are almost always retained by insurance companies, who have a great deal more specific subject matter expertise than most plaintiffs’ professional malpractice lawyers) can exploit their edge to get meritorious plaintiffs’ cases thrown out of court before anyone has a chance to evaluate the merit of the plaintiffs’ cases. It’s sad and unfortunate in my opinion. On the brighter side, it sure keeps our professional malpractice insurance premiums low.


640px-Disneyland_carousel-x768Update (September 2, 2015): Plaintiff’s carousel of attorneys does not excuse it from complying with the Court’s orders and with the Federal Rules of Civil Procedure….”

On the other hand, forcing lawyers to go around in circles for months apparently does not justify an award of $39,759.57 in legal fees and costs to the defendant… (One more example of the familiar “Minnesota Haircut.” On the other hand, check out footnote 1: nearly 60 hours of attorney time does seem like a lot.)



Metro_Transit-University_Avenue-20081002Minnesota’s Data Practices Act is more complex than you would expect.  Think of all the different kinds of data collected by government bodies in the state, and all the kinds of data generated by those government bodies.

The Act says who gets access to specific data:  anyone in the public; just the subject of the data; or, in some cases, noone but the government.  The Act is supposed to balance the public’s right to government data, and certain privacy and government interests.  In a nutshell, data is public unless the Act says it’s not.

A new decision handed down last week by the Court of Appeals addresses access to one kind of data:  video tapes recorded by the MTC on its buses.  KSTP sought access to tapes recorded on two buses.  The Metropolitan Council refused to provide the tapes — contending that the tapes were “personnel data” related to discipline of the drivers and were therefore “private” under the Act, available to the drivers but not to the public.

The Court rejected that argument, based on the language of the statute, and on its underlying purpose.

The Court noted that the video recordings were made for a number of reasons, not just driver discipline.  For example, videos are used to investigate crimes, to investigate accidents and to evaluate passenger needs.  The Court concluded that where video data is collected for several reasons — public and private — the fact that it has a private disciplinary use does not allow a government body to withhold it.

The case only deals with videos taken on public buses.  But, if followed in other decisions, it may have much broader implications.  At least for some kinds of data, when data are collected for more than one purpose, including private or nonpublic uses, the data must be made public.

Stay tuned for further developments.


Donald_Meek_in_A_Woman's_Face_trailerI am not a religious person, much less a religious scholar. But I absorb biblical quotes by cultural osmosis as we all do. Like the phrase above, “The meek shall inherit the earth,” from Mathew 5:5. Unfortunately for me, this phrase, like so many phrases in all many religious texts, has no actual meaning. I look at each word in the phrase and each seems confusing and ambiguous. Add on top of that the fact that the phrase has been through many languages between when it was first spoken, then written, then translated repeatedly for a few thousand years or so. (Some translate it, by the way, as “The Gentle shall inherit the earth…”) So even if it seemed clear to me, I would wonder whether it was actually ever spoken or whether, when it was, it meant what I think it means today.

My take on the phrase, for whatever it’s worth: don’t pick on the weak because they will some day be in a position to mess you up in a big way. And that, I suppose, is a pretty good rule to live by. It’s a variant of the golden rule, the way I read it. Applying that simple rule in our own lives, I suppose large firm lawyers should be nice to us solo lawyers. That’s how I choose to understand the phrase.


2836 Lyndale Ave. South Lawyer Office ShareI recently had lunch with a successful large firm lawyer. He asked me how I am liking my practice. I told him, as I have told many, that I am having the time of my life. Each day of work is fun, an adventure, and I feel very fortunate.

“That’s great to hear,” the large firm lawyer said, “since, you know, most lawyers are miserable.” And moments later, he said it again for emphasis. “You know, most lawyers are just miserable.” And we talked about the tragedy of so many people who slog through five days a week of drudgery (whether lawyers or humans) and count the days every week until the cherished weekend or day off, where they actually enjoy life. (Grinding through 72% of your life so you can enjoy 28% of it is a pretty horrible deal.)

My only complaint about the solo lawyer life is that it feels so precarious in many ways. A highwire act. No net. The lack of logistical support is an obvious challenge and stressor (office and administrative matters (scheduling, travel arrangements, billing, photocopying, collating, postage, etc. etc.)). But, for many solos, as or more difficult is the lack of a community of support. I am talking about the support of colleagues. I am fortunate. I have a office-sharing arrangement that suits me well.

If you are a Minneapolis solo lawyer and you do not have an office-sharing arrangement, you really need to consider it.

“Yes, candy-assed Minnesota Litigator,” you say, “But I am not bagging enough bucks at this time to afford renting an office in a suite….”? Three answers to that: (1) I am not “candy-assed” and I do not know you are implying. Who raised you? (2) As sales people say, “Are you sure you can afford NOT to have an office?” (remember: it takes money to make money) and (3) Please consider an opportunity for an office-share on the Greenway at Lyndale (details here) where you would get to office with Joshua Williams for $700.00/month. (If you get just a few clients from the office-share per year, that expense is paid for, right?)

Also, by the way, if you’re a solo and you really cannot take advantage of Williams’ opportunity (or any other office-sharing opportunity) for whatever reason: JOIN THE MINNESOTA STATE BAR ASSOCIATION. That’s a different kind of community, a different kind of support. But it is all of that and then some. Seriously worthwhile for all Minnesota lawyers but particularly valuable, maybe, for solo/smalls.

Bob Lear, Lear Appraisals LLC

Bob Lear, Lear Appraisals LLC

Trial lawyers work with experts in many cases and the relationship can be difficult sometimes. The expert might not say what the lawyer wants the expert to say. The lawyer might ask convoluted and impossible-to-answer questions. Sometimes lawyers might find an expert to be controlling — the proverbial armchair quarterback (or vice-versa). Sometimes it is simply that one can never make contact with the other or someone is unreliable. Sometimes experts find lawyers to be manipulative and dishonest.

These are the typical horror stories of lawyer/expert experiences.

But many times the relationship can be fantastic. The lawyer recognizes and respects what the expert brings to the table and vice-versa. The lawyer and expert can combine into a smooth-running collaborative legal team far more powerful than either of the two alone.

Residential real estate appraiser, Bob Lear, is one of those experts who takes his work very seriously. He is extremely responsive. He knows how to talk to lawyers. He knows how to talk to humans, as well. By this I mean that, though I have not seen Mr. Lear testify at trial myself, I expect that Bob Lear would be very persuasive before both judges and juries. (You can reach Bob at: Bob Lear, SRA,  Lear Appraisals, LLC, 3632 Larchwood Circle, Minnetonka, MN  55345. Telephone: 952-888-7741.)

ML: You get hired by lawyers a lot. How long have you been doing this?

BL: I have been an appraiser since 1992 and I have been doing litigation work for 15 years. For the past 3 years all I do is appraisals for legal purposes.

95% of that is divorce, approximately 4% is estate work and about 1% is business litigation.

ML: How many times have you testified at trial?


Soo_Line_2500_StreamlinerIt has bothered me that plaintiffs are held to a somewhat high standard, in my view, as to what they can plead and what they cannot plead in their complaints when defendants are given substantially more leeway in their answers to plaintiffs’ complaints.

This rule makes sense but it still bothers me.

It makes sense because plaintiffs START lawsuits. They put the whole mess in motion. Our court system, naturally, would like to impose a punitive rule for people (or even their close relatives, lawyers) who start lawsuits where there is no reasonable basis for the lawsuit, either as a matter of fact or as a matter of law.

Defendants, on the other hand, don’t start lawsuits. They REACT to lawsuits. And the amount of time to answer  lawsuits is not a lot of time. And if defendants fail to raise what are called “affirmative defenses,” then they might be held later to have waived them. So defendants are given more leeway in raising affirmative defenses (that very often have no reasonable basis as a matter of fact or as a matter of law) than plaintiffs are given in making allegations in complaints.

So when is it appropriate for plaintiffs to move to strike affirmative defenses, which have no basis in fact or no realistic legal application to the case at hand?


DataHypothetical: adversary in litigation asks for your client’s “ESI” (electronically stored information) related to the lawsuit and proposes that certain search terms be run on your client’s computer systems.

Your client tells you that it has already given you all responsive documents in hard copy so that any such searches would likely be duplicative.

Relying on the client’s statement, the lawyer invites the adversary’s e-discovery vendor to “come on in” and run the proposed searches. The lawyer makes sure there is a “claw-back agreement” so that his client will be able to demand return of any inadvertently produced privileged documents.

It turns out, however, that the search terms are extremely broad, that a huge amount of non-responsive ESI is produced, including information on highly confidential product plans. This is in litigation against a direct competitor.


arrows-221459_1280“The problem with arbitration is that it is arbitrary…,” Minnesota Litigator has repeatedly quoted a senior seasoned trial lawyer as having said years ago.

Complain all you’d like about our state and federal court systems but the process is sanitized by sun-light (by which I mean that it is public, it is more subject to public scrutiny). And the judges do not charge the litigants by the hour. And there are fairly comprehensive rules of procedure and evidence that have been developed and refined over literally hundreds of years (and courts generally apply them in more or less uniform fashions while, with arbitrators, who knows (and there is no recourse if rules are not followed)?).

Also, although there are arguably all kinds of challenges and problems with our court systems’ appellate processes, at least we have those in our state and federal court systems. We have the right to appeal bad results and bad results get a fresh look from other judges. And this process works more often than not (that is, the appellate courts reverse bad trial court results and they affirm appropriate trial court results correctly most of the time).

In arbitrations, on the other hand, the appellate process is so extremely narrow that arbitration litigants are better off adopting the point of view that there is no appeal. There is just one bite at the apple. A duel in which the duelists each get one shot. In fact, this is an attraction to some of arbitration because the lack of appeal is a cap, of sorts, on time and money.

But, if arbitrations risk being arbitrary, as I have noted, then it would be fitting that something like appeals sometimes happen in arbitrations and they can flip the entire proceeding upside down, right? See what I am saying? If arbitrations are really arbitrary, an iron-clad rule that it is “one shot and that’s it” seems solid and maybe non-arbitrary? But believe me (and the wise lawyer whom I have quoted on this):

The problem with arbitration is that it is arbitrary.

Just ask Mr. Timothy Owens.