Minnesota Litigator - federal rule changesNow that we are moving to e-filing of court documents, there are some new needs to make briefs and memos effective. And some new tools are available. Two of them are hyperlinks and bookmarks.

We are all familiar with hyperlinks (like this.) Clicking on a hyperlink will take the reader to a new page. Our rules won’t allow the drafter to hyperlink to material outside the document itself, at least at this point, but will allow you to hyperlink to spots in the same document.   For example, you can link a line in the table of contents to the corresponding part of a brief.

We have all also seen bookmarks. Bookmarks also allow you to jump to another place in your document, but your starting point is a set of links in a separate pane alongside and to the left of your document.   (Bookmarks look like this.) Bookmarks will always be visible and available (as long as the correct settings have been used) and will “travel” with the document as the reader scrolls through it.

So, for example, a simple version of your table of contents outline can appear in the navigation pane so the reader can jump to a desired passage of the brief or memo at will. The links in the navigation pane will appear alongside the document text as the reader progresses through it, so that they are always handy and accessible. (Unless the reader chooses to hide them.)

As noted, hyperlinks and bookmarks can allow the reader to jump from one part of your table of contents to document text. But both tools have many other rhetorical purposes. Bookmarks in particular can help you point the reader to the parts of the brief or memo you think are most important, and let you explain why. For example, you could have bookmarks (after your table of contents links) that say, “The most important case,” or “Why Respondent’s breach argument is wrong,” or “Why the tolling argument is incorrect.”

In this way, bookmarks give another tool to highlight your most important points, and make it easy for judges to find the most important parts of your brief or memo.

The courts’ web site includes instructions on creating bookmarks and seems to endorse the broad use of them. It’s not clear, though, that the courts have fully considered the rhetorical uses of bookmarks. This will undoubtedly be addressed down the road. At present, the rules do not address their use, and there is nothing saying that rhetorical bookmarks can’t be used.

(Justice G. Barry Anderson has discussed the use of bookmarks in a CLE. His thoughts on their rhetorical use follows.)

One thing is clear: bookmarks of all kinds must be used in moderation to be effective. Otherwise, they will overwhelm the reader. So bookmarks for the brief outline should be limited to the most important points, not all subparts of an outline. And, rhetorical bookmarks should similarly be limited to the most important points.

In addition, if opposing counsel is not registered for e-filing, a PDF with the hyperlinks and bookmarks should be sent to that person by email, so that he or she is able to see what the court sees. And the cover letter to the clerk’s office should note that the e-filed copy of the document contains bookmarks and hyperlinks. So everyone knows that the bookmarks and hyperlinks are there.

It’s easy enough to see the structure of a paper document and flip through it to go from one point to another. That is not as easy to do with a digitally-filed one. But hyperlinks and bookmarks can help the decision-maker navigate easily through the document. So we should learn how to use them.

Minnesota Judicial CenterJustice G. Barry Anderson spoke on e-filing of court documents at a CLE a while back.  One topic he mentioned was bookmarks in e-filed PDFs.  Here are some of his thoughts now on the subject.  Shared with his permission:  :

“First, the usual and customary caveats—I’m writing solely for myself, we’re in the early stages of experimenting with what electronic briefing looks like, other members of the Court may have different views and, to the best of my knowledge, there are no rules that speak with any directness on this issue.  That day will come, but it’s not here yet.

 All of that said, I see no problem with reasonable use of bookmarks as part of the lawyer’s box of persuasive tools.    Bookmarking a PDF brief is, in part, an outline of the lawyer’s argument.   And the outline of the lawyer’s argument is set out, in the first instance,  in the table of contents of the brief and is, of course,  in persuasive form there.  ( E.g., “The District Court erroneously decided….”).     I see no reason why a particular weakness in an opponent’s argument couldn’t be bookmarked, just as it might be noted as a subhead in the argument outline itself.

The more complicated the table of contents/outline/bookmark of course, the more an advocate runs the risk of providing so much information to the reader that the original goal of persuasion becomes obscured.   Most briefs, at this point in our transition to ecourt, are not bookmarked and when I create bookmarks, I’m looking to make it easier for me to get to the heart of the argument, not necessarily replicating the advocate’s table of contents in its entirety.    So, for example, I might not bookmark all of the sub arguments, or I might have a separate bookmark that notes that this particular page or point is the heart of the advocate’s rgument (or it might say something like, “I have no idea what the point of this is—ask about it at oral argument”).

 So, I think there is room in looking at this issue to think persuasively about whether, and how, to bookmark a brief.    And, of course, all of the usual advice about advocacy applies with bookmarking as it does with all other parts of advocacy (e.g., state the argument fairly, acknowledge weaknesses, cite authority accurately, etc).

Barry Anderson

Associate Justice

Minnesota Supreme Court

Minnesota Litigator - Stacks_of_moneyMinnesota Litigator covered the protracted and hard-fought battle of Ellen Ewald vs. the Royal Norwegian at some length, which culminated in U.S. District Court Judge Susan R. Nelson’s (D. Minn.) 191-page findings of fact and conclusions of law by Judge Nelson and a win for Plaintiff Ewald.

The Equal Pay Act provides for an award of “a reasonable attorneys’ fee” to a victorious plaintiff. In Plaintiff Ewald’s case, Judge Nelson found $1,773,719.05 in attorney’s fees to have been reasonable (plus $209,973.61 in costs, plus $114,267.31). For lawyers who seek awards of attorneys’ fees, Judge Nelson’s order should be required reading. Note that plaintiff’s counsel marked down her bills repeatedly in light of circumstances, such as the replacement of the lead paralegal on the case (because the previous paralegal left for a job in the public sector). Congratulations to Engelemeier & Umanah!

Here’s a related question: if a statute provides for an award of “a reasonable attorneys’ fee,” should a lawyer be able to recover the cost of computer research as well? As “costs”? Or as a part of “reasonable attorneys’ fees”?

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DataYou might not want a compilation of every ______ between the ages of ____ and _____, of ______ethnic origin, who suffers from _________.

But many people and many businesses want “slices” of potential customer groups like this and they will pay a lot of money for these slices because they will make a lot more money with them. Many businesses (Facebook, Google, to name a couple) traffic in human data like that in the billions of dollars.

But if you collected and sold databases like that, how would you be able to tell whether a competing data merchant is stealing and re-selling your compilations?

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dunce-cap1Another benefit from last week’s meeting between the Hennepin County trial court judges and Hennepin County lawyers was learning about Judge McShane’s linked list.

These are excellent rules for all trial lawyers to review before heading into trial before anyone. Certainly some of the rules are inapplicable before other judges. (Some judges do not apply Judge McShane’s Rule #1, for instance.) Most of Judge McShane’s rules, though, fall under the heading of “don’t be a stupid idiot,” which is sometimes more difficult than it sounds.

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

Last week, the Minneapolis powerhouse of Faegre Baker Daniels hosted an HCBA CLE: Civil Litigation and Bench & Bar: Things that Lawyers Do that Drive Judges Crazy and Vice-Versa. The following Hennepin judges generously gave their time to this bench/bar get-together: Judges Diane Bratvold, John McShane, Tom Fraser, James Moore, Daniel Mabley, Margaret “Peg” Daly, Bill Fisher and Ivy Bernhardson (in the order they sat).

I attended the CLE with interest but I left before a bounteous reception of delicious appetizers, beer, wine, and non-alcoholic drinks.

Here is my take-away in a nutshell:

1. Judges are driven crazy by stupid idiot lawyers;

2. Lawyers are driven crazy by stupid idiot judges;

3. Because of scarcity of resources and time, I would submit that even fairly smart lawyers and fairly smart judges come across to one another from time to time as stupid idiots because, let’s face it, many problems we deal with are complex and we don’t have all the time in the world to figure them out perfectly (also many of us are human, meaning that we’re all stupid idiots from time to time);

4. And, finally, the lowly and envious solo scrappy lawyer (yours truly) must add an insecurity that rich and successful law firms might have a subtle and immeasurable edge with some judges. The firms can host events like this event, which might raise the firm’s lawyers’ stature in the minds of judges to some degree if only by virtue of the opulence of their offices and their spread. (Hard to ignore the contrast between Faegre’s offices and Hennepin County Government Center.)

This final point is maybe cynical and is undoubtedly vigorously contested by the large firm lawyers who moan with resentment about how courts bend over backwards to help “the little guy.” There’s some truth to that too.

Having said that, what, more specifically, did the judges and lawyers discuss?

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GlaasairRGUpdate (April 13, 2015): When you move for sanctions in civil litigation, there is a risk of blow-back. That is, you might think that you are calling the court’s attention to unacceptable conduct but the court might conclude that your own conduct, in bringing the motion, was improper, unacceptable, and sanctionable.

In the case described below, I don’t think the sanctions movant, Lycoming, has very much to worry about. I feel less certain about plaintiff, his allegations of “witness tampering,” Lycoming’s alleged role, and whether the allegations meet the relatively low bar set by Rule 11 of the Federal Rules of Civil Procedure. (Here are Lycoming’s reply brief in support of its motion for sanctions and Plaintiff’s “last word” on the subject.)

Update (February 24, 2015): In the tussle described below, a defensive tactic by Plaintiff to Defendants’ motions to dismiss failed this past week.

Original post (February 6, 2015): The litigation of Kedrowski v. Valters Aviation, Lycoming Engines, et al. involves a plane crash in which Plaintiff Mark Kedrowski suffered severe injuries when his Glasair Super IIS RG mdel aircraft crashed in September, 2010 near Lake Elmo Airport.

Plaintiff brought his lawsuit in Ramsey County District Court and it is before Ramsey County District Court Judge John H. Guthmann. The fight has been intense, it seems, with motions for sanctions, motions to compel, and several allegations of improper conduct in this case and in other cases involving the same defendants elsewhere.

Plaintiff’s view is that there was something defective about a fuel pump that caused his terrible accident. I have not reviewed the case file in detail but I would speculate that the defense is that the plane performed fine and the crash was due to pilot error. This would be a standard small plane crash legal battle. (Normally in these cases, I get the sense that a great deal rides on the findings of the NTSB, which appear to support the defense in this case.)

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Formal Table SettingI recently described the time-attenuated slow motion nature of some legal disasters (as opposed to other kinds of relatively instantaneous disintegrations like stepping on a land-mine). I suppose that deaths of people, jobs, companies, lawsuits, traditions, socio-economic relationships of all kinds — all deaths in sum — are certain and follow their own time-lines based on that pesky second law of thermodynamics, better known as entropy.

When was the last time you saw a butler, for instance? The butler is a dead social institution (or is it?). I suppose sociologists might study and analyse when, how, and why social institutions were born and when they died, just as our medical community does for actual human beings.

Speaking of both disappearing butlers and slow-mo legal disasters, the day seems to be getting increasingly nearer when the Minnesota bar will say, “So long,” to Minnesota attorney William Butler, whose trail of tears I have followed on Minnesota Litigator for a while now.

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trainwreck2You do not have the time to read the sad history of United States Sugars Corporation v. U.S. Sugar Co. (“Sugars v. Sugar”?) as recounted over the years on Minnesota Litigator (see (but do not read) here ). It’s yet another slow-motion train wreck.

Last week, the inexorable death march lurched forward as Sugars thumped Sugar with Plaintiff’s motion for summary judgment on its affirmative claims and Sugar’s baseless counterclaims.SugarCubes2

I still have trouble getting my head around how the value of delay could possibly be more than the costs of litigation defense. I suppose we’ll never know how that analysis has played out. But I am sympathetic to all of the players in this litigation. As Minneapolis patent litigator Jake Holdreith told Minnesota Litigator readers recently about what makes the practice of civil litigation satisfying, “…I would urge my colleagues to do is to think deeply about our role as problem-solvers in our society and put that pretty high on the list of what our function is. That makes us more valuable and makes the job more rewarding.” The job is somewhat less rewarding when it simply seems to be a lengthy progression to a certain (and all too unsatisfactory) ultimate outcome.

Habitat 67, Montreal, Canada

Habitat 67, Montreal, Canada

Let’s say that you have a tenant in your condo who is basically never there and who has failed to keep current on condo fees. When you go to foreclose on the property to get the money owed to you, how are you supposed to serve the absent tenant with notice of the foreclosure, which is required by law?

It might be more difficult than you think.

Someday, maybe service of process via Facebook will suffice

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