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

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

I recently posted on how courts discipline (or fail to discipline) lawyers. Tangentially, I am also particularly interested in the impact of “data darwinism” and of reputation in the digital age on professional discipline.

A court might sanction a lawyer $X,000 dollars for perceived wrong-doing but maybe a “benchslap,” that is, harsh words in a publicly available legal opinion or court order, freely available and “googleable” for the foreseeable future, could be an even stronger deterrent? And, since courts can, at times, make mistakes, could it be that public chiding or shaming might be an excessively destructive and punitive measure? Putting aside the question of the long term risk to lawyers’ professional reputations posed by public benchslaps, how much do they harm the lawyers’ clients in the very cases in which the public floggings are administered?

Defendant’s supporting memorandum frankly mischaracterizes this Court’s May 4 Order. Although the Court spent over fifty pages carefully addressing and distinguishing relevant case law, Defendant carelessly accuses the Court of not “cit[ing] any relevant authority for its position.” Unfortunately, in the fog of Defendant’s anger about the Court’s ruling finding subject matter jurisdiction (a position Defendant endorsed for years until the eve of trial), Defendant distorts the record, requiring the Court, once again, to carefully explain its ruling.Spanking

It is fairly uncommon to sense irritation in judicial writings but am I right to be feeling it in the quoted passage? I think so. I don’t think that Defendant has put its best foot forward as it faces an imminent trial before U.S. District Court Judge Susan R. Nelson (D. Minn.), set for August 17 in Duluth, Minnesota. On the other hand, can anyone reasonably suggest any case is lost, or one’s client’s case is even marginally harmed, because a lawyer stepped on the judge’s toes in the days leading up to trial?

At a minimum, it is safe to say that it cannot help…

Courts Gov WarningThis is the message I got today when I went to look up information about a Hennepin County Judge on the official government website. What’s that about?

Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

If a business figured out a way to swipe $0.01 from you once a week, how long would it take before you decided it was worth your time and money to sue that business? If you are like most people, you will decide that it simply is not worth your time trying to go after someone who’s taking $0.52 per year from you. You have better things to do, right?

If a business managed to swipe $0.01 from every other adult in the United States once a week, the business would be bringing in over $6 million/year.

You can certainly see how plaintiff’s class action lawyers might be interested in bringing such a case, but there’s still the challenge of finding the named plaintiff herself, the necessary person who will stand up and fight for $0.52 and maybe a “spiff” of $1,000-2,000 for the hassle involved in being a “named plaintiff” in a class action.

(more…)

Minnesota Litigator - federal rule changes

Update (June 29,2015):   A new handbook will help e-filers in the Minnesota district courts.  The handbook is published by the Minnesota Judicial Branch and is found on the courts website.

The handbook provides some general background on e-filing procedures.

Section 7 of the handbook, though, is made mandatory for e-filers.  The requirements in Section 7 “have the force of law.”  Topics addressed in Section 7 include things like PDF formats, permissible fonts, and the resolution of scanned documents.

One part of Section 7 deals with bookmarks and hyperlinks.  It says that bookmarks aren’t required but may make it easier for judges to navigate through e-filed documents.   The handbook also addresses internal hyperlinks (with destinations within the same document) and external hyperlinks.  External hyperlinks may connect only to publicly available laws or court opinions.   An external hyperlink may not be used as a substitute for a citation; a proper citation must be included in addition to the link.

Thus, the use of hyperlinks and bookmarks in court filings has been blessed, at least for district court filings.  All judges may not yet know this, however, so, if using these tools, I would drop a footnote noting that they are included in the filing, and citing the new handbook.  In addition, if your opponent is not accepting e-service, I would be certain that a paper copy of the filing be served showing the hyperlinks and bookmarks included.

More on some features of the new handbook to come.

Original post (April 20, 2015)Now 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.

Habitat 67, Montreal, Canada

Habitat 67, Montreal, Canada

Update (June 29, 2015): Earlier this month the Minnesota Supreme Court granted the Defendants’ petition for further review of the Court of Appeals decision, described below. The Court of Appeals in the Jaeger case affirmed a district court ruling after trial that a defendant in a foreclosure proceeding was never properly “served” “process” (that is, he did not receive “a notice of association lien foreclosure sale” on his condo) because the the notice was delivered personally to the adult son of Jaeger, the condo owner, at the condo. Jaeger claimed he never had notice or knowledge of the foreclosure sale. The district court declared the sheriff’s sale void and pronounced Jaeger the rightful owner of the property.

The adult son allegedly did not “reside” in the property but he “checked on the property about 25 times per year, stayed overnight at the property perhaps a couple of times…”  The process server, on the other hand, testified that “unless [Jaeger’s son had] said he lived at the property, the notice would not have been left with him.” How much effort, how much of a burden, does the law impose to give notice of a foreclosure sale? How much should it?

Original post (April 9, 2015): 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

(more…)

HourglassUpdated post (June 26, 2015): Hourly billing lawyers generally remember to record the time that they work as they work. Otherwise, they smartly reason, they cannot bill and they cannot get paid. (To my consternation, some hourly billing lawyers actually fail to enter their time diligently. Law firms go nuts if they have these foot-dragging procrastinating lawyers on the pay-roll (and they all do, in my experience). Seriously, it’s like taking a siesta at mile 25 in a marathon (a 26.2 mile race for those of you who pay no mind to that kind of thing). WTF?)

Contingent fee lawyers, more understandably, get sloppy when it comes to entering their time because (1) their case-loads are often very different (and often they have exponentially more irons in the fire); and (2) since the vast majority of contingent fee cases have negotiated settlements, most often there is never a need to submit billing records for review to anyone.

But Minnesota litigator, Leo Épée, appears to have walked away without any fee award after being on the team of a winning employment discrimination case (partially winning, at least) because he appears to have “failed to submit any contemporaneous record of his time spent” on the matter in which he sought a fee award. Be forewarned.haircut-33187_640

Here we go again with a most extreme version of “the Minnesota hair-cut,” which is what I call it when lawyers ask courts for fee awards and the lawyers get fraction of the fees that thesiy seek. (See here and here and here, for instance.)

(more…)

Eggs in CartonUpdate (June 26, 2015): The post below noted a recent commercial dispute with high-powered lawyers on both sides to deal with an issue as to whether a large machine functioned as promised and, if not, who’s responsible and how do the parties allocated the losses. It looks like the dispute may be off to arbitration. The parties have agreed to negotiate as to whether they can agree to arbitrate…

“The only problem with arbitration,” one seasoned lawyer told me years ago, “is that it’s arbitrary.” This is, of course, a cynical generalization and a controversial opinion. In any event, let’s hope that LEI Packaging of Chisago and Emery Silfurtun of Ontario can cheaply return full-time to their main preoccupations, their profit centers rather than their “legal spend,” that is, selling eggs and carton making machines.

Original post (May 18, 2015): “Can it box pasta or not?” I asked nearly five years ago. “There has to be a better way,” I suggested about resolving a different commercial dispute back in 2013. More recently, Minnesota Litigator has covered (or maybe I should say “coated”?) “Sugar v. Sugar,” which appeared to be a commercial dispute that boiled down to the simple syrup of defendant regretting and re-negging on its commitment to buy sugar from the Plaintiff at a very high price. (Note to clients: Regret = OK. Re-neg ≠ Ok.)

Apparently when commercial transactions of a certain magnitude — a large magnitude — go wrong, there just is no better way in this day and age: businesses have to call in lawyers to settle up.

(more…)

Update (June 25, 2015): To quote this week’s Minnesota Court of Appeals decision in “Drewitz V” (or is this “Drewitz VI”? I can’t keep count.): this has been “incredibly protracted litigation…much of which was due to adverse district court rulings that he three times successfully appealed.” To be clear, Plaintiff Drewitz and his bulldog lawyer brought this case ELEVEN YEARS ago and over that time, the Hennepin County District Court Judge (Marilyn Brown Rosenbaum, since retired), kept ruling against plaintiff’s claims and being reversed on appeal.

The next stop, of course, will be Motorwerk’s (that is, Jack Walser’s) yet another petition to the Minnesota Supreme Court, presumably.

Call me crazy but I get the feeling that the Walsers REALLY don’t want to pay Mr. Drewitz his share as a previous part owner of BMW Motorwerks. Congratulations to Plaintiff and his tenacious bulldog (for now)…

Update (January 31, 2013): (under the headline: Bull Dog Finally Done in 13 Year Dog-Fight?) This week the Minnesota Supreme Court denied a petition for further review in this epic struggle.

Original Post (11/21/2012):  Twin Cities area litigator, Paul W. Chamberlain, owns “bulldoglaw.com” but he makes clear on his website that the qualities of the animal that he wants to evoke are “loyalty, persistence, an even temper and tenacity,” and not aggression and anger.

There can be little doubt that those qualities have been called upon in the epic saga of John Drewitz v. Motorwerks, Inc., a piece of shareholder litigation that has been on-going for 13 years, in which Drewitz’s case has been up and down the appellate courts five times.  Throughout, Drewitz has lost at the trial court, had his case revived on appeal, and then lost again at the trial court.

(more…)

Photo by Thomas Pompernigg

Photo by Thomas Pompernigg

Yes.

For example, an employer might discriminate against a woman employee by way of “pregnancy discrimination,” which is unlawful, even when the employer does not actually know the employee is pregnant.

Thus held the U.S. Court of Appeals for the Eighth Circuit this month, partially reversing U.S. District Court Judge Joan N. Ericksen’s grant of summary judgment for defendant Fairview Health Services. “Title VII, as amended by the Pregnancy Discrimination Act, … prohibits an employer from discriminating against a woman because of her capacity to become pregnant.”

Hal9000The U.S. Supreme Court has agreed to review an 8th Circuit “donning and doffing” case in which the Court may review or refine its 2011 Walmart v. Dukes decision.

I have often thought that civil litigation would be a part of our commerce that would be least vulnerable to replacement by machines but I wonder how “trial by formula,” in which large numbers of individual claims are aggregated and resolved through statistical sampling and analysis, is not a large stride in that direction?