Data Code Computer BinaryI coined the term “e-disgustery”  for e-discovery back in March, 2013, defining e-discovery, roughly, as a recipe for a nauseating mille-feuille gateau de merde with gooey alternating layers of jam and cash .

On Thanksgiving Eve, I propose we take a tiny nibble of this work-place emetic to better savor (or maybe just endure) the family dysfunction gatherings in the days to come. “At least I am not dealing with e-discovery,” you will think to yourself as you abide Cousin Cal’s interminable narrative of imagined (or self-inflicted) persecution, Grandpa Clyde’s repellent polemic, Aunt Gloria’s unspeakably awful side-dish, or whatever.

E-discovery is disastrous in small stakes litigation. You might say the “e” stands for “extremely expensive.” As a result, in small stakes litigation, lawyers, courts, and clients normally navigate some arrangement where they do not incur the hassle of deep dives into one another’s electronic data because the dives cannot be cost-justified. Yay.

If, on the other hand, there are millions of dollars at stake and if your client is still dragging his feet about complying with the collection, review, and production of electronic evidence, send him this (a tough order by U.S. District Court Judge Susan R. Nelson (D. Minn.) based on concerns about certain litigants’ responses to their e-discovery obligations in large litigation) and this (an e-discovery guide (U.S. D. Ct., D. Minn.) for practitioners). Tell him to fasten his seat-belt and loosen his purse strings, or else.

Seriously, one aspect of the failings of U.S. civil litigation is the apparent difficulty the court system has, as well as its courtesans and courtiers (lawyers and litigants), when it comes to e-discovery — the collection and production of electronic data (email, voice-mail, text messages, digital video, digital photos, digital files (Word™, Excel™) (all known as “electronically stored information” or ESI). On the surface, it sounds so easy and, in fact, so much less expensive than old-fashioned “banker’s boxes” of discovery, tens, hundreds, or thousands of boxes in a case, each with thousands of pages of documents.

Slap that electronic data on a hard drive and you’re done, right?



Update (November 24, 2015): Contrary to my point of view, below, a 11/23/15 National Law Journal Article by Sheri Qualters, “Bar Exam Pass Rates Drop Across the Country,” (paywall but initial peaks for free) suggests that the drop in law school applications has resulted in lowering standards at law schools and this is said to be reason for nationwide drops in bar exam pass rates.

Original post (November 16, 2015): As shown in the attached chart, there is a steady decline in the pass-rate of the Minnesota bar exam in recent years. Fewer are taking the exam and fewer of these fewer are passing the exam. Why?

I would suggest that it is not that applicants to join the Minnesota bar have grown less able in recent years nor that the substance of the Minnesota bar exam is getting more difficult.

Rather, I think that the Minnesota judicial system, including the board of law examiners appreciates that we have an over-supply of lawyers in Minnesota versus Minnesotans’ demand for lawyers. That is, there appears to be a sense that we have enough if not too many lawyers already.

Law school applications are down. Law schools are closing or merging. Law school class sizes are shrinking. Lawyers’ incomes are falling. And it appears these days that the Minnesota Supreme Court is somewhat more willing to disbar bad Minnesota lawyers rather than slap them on the wrist as they might have done in years past.

So maybe all of these factors will benefit current hard-working but hungry-for-work Minnesota lawyers?


Judgment of Solomon by Nicolas Poussin

Judgment of Solomon by Nicolas Poussin

At a hearing recently, I heard a trial lawyer praise a judge for her “Solomonic judgment.”

King Solomon is portrayed in the Hebrew Bible as a wise leader and the Bible praises him for the way he resolved a dispute between two “harlots” (1 Kings 3:16-28). They were roomies and each bore a son around the same time. One night, one of the two boys died. One harlot accused the other of swapping the other’s dead son for her living one.

Apparently, nothwithstanding the significant demands of a King’s responsibilities over a nation, there was time on the King’s calendar to deal with the ensuing custody dispute and, of course, the dispute preceded genetic testing, finger-printing, delivery-bed selfies and the like.

So Solomon proposed cutting the living child in half and giving each woman half a lad. One harlot surrendered her claim to the baby, preferring the boy to be raised by the other harlot rather than be cut in two. King Solomon concluded that she must be the mother and the story ends there. (?)


Julie Andrews Still Photo From The Sound of Music

Julie Andrews Still Photo From The Sound of Music

I have no doubt that long-time Minnesota Litigator readers (HI MOM!) will cry out loud in excitement at a the arrival of a new TAAFOMFT, an acronym for “These are a few of my favorite things,” highlighting my favorite things about civil litigation (NOT).

It has been a while since my last TAAFOMFT post; these posts are reserved for the most meaningful, intellectually stimulating parts of my professional life: vehement arguments over what “thirty days” means or defending against an adversary’s claims that are truly without merit and having to explain to my client why this could cost my client tens of thousands of dollars. (This conversation grows funner as I go on to explain that the client still might lose the case though the adversary’s arguments have no merit because lawyers can very rarely eliminate downside risk–or guaranty upside reward–entirely, and more fun still when I say that although we may win everything the court will not award any attorneys’ fees.)

Another of my favorite things: in civil litigation plaintiffs must meet a fairly rigorous standard in drafting a complaint to bring a lawsuit (defense lawyers will disagree, to be sure). Too often, defendants respond to plaintiffs’ complaints with a so-called “answers” that provide no answers at all.

This is best understood with an example. The Minnesota titan tech/appliance retailer Best Buy had a deal where Best Buy store visitors could all dump old unwanted appliances (“junk”) at Best Buy locations. Best Buy turned around and entered into contracts with other businesses (one called “JACO”) to take the junk away. Businesses like JACO would pay Best Buy for the opportunity to truck away the junk because, of course, there is always resale value and/or scrap value in most of that so-called “junk.”

JACO entered into such a contract and allegedly stopped paying Best Buy under their “Hauling and Recycling Services Agreement.” So Best Buy sued JACO, alleging that JACO failed to pay Best Buy the money owed.

Normal humans might respond to a complaint like this in a number of ways, like, “I already paid you all that you are owed,” “You failed to hold up your side of the bargain,” “We have no money,” “You tricked us into a bad contract,” “You sued the wrong company,” “It’s too late for you to make that claim,” etc. etc. etc. Not so, in U.S. civil litigation.


Karin Ciano

Karin Ciano

I have had the pleasure of knowing Karin Ciano for about five years and the privilege of hiring her for help as I prepared for trial last year. Karin was a pleasure to work with and her work-product was outstanding. Whether you are in a pinch or whether, before you are in a pinch, you have the forethought to add fire-power to your client’s litigation team, call Karin. Why Karin? Read this:

MN Litigator: Karin, let’s start with you telling Minnesota Litigator readers what you do now.

Karin Ciano: Readers, I do two things. I have a sole practice doing plaintiff side’s civil rights and employment law. I am also a freelance attorney which means I work for other lawyers. I have worked for a variety of lawyers in federal court and state court and recently have become more involved in state court doing probate litigation.

MN Litigator: When you say you’re in state court doing probate litigation, is that as a freelancer or that’s your own work?

Karin Ciano: That’s a longer-term project I started this fall for the firm of Rodney J. Mason Ltd. in St. Paul.  I’m actually a part-time associate with the firm.

MN Litigator: How do you balance freelance work with your own work?

Karin Ciano: I try to be very careful about scheduling and am constantly minding my calendar. When there’s a deadline coming up where I need to be available, I block those out so that I don’t take projects that will overlap. Basically I try, like every lawyer does, to be mindful of my schedule, to estimate how much time things will take, and try to make sure to get things done.

MN Litigator: Do you take less work on of your own to allow for capacity for freelance work for other lawyers?

Karin Ciano: Yes.


arrows-221459_1280Update (November 18, 2015): The American Arbitration Association’s reply brief is linked here. It has been a while since I have inched out on a limb and predicted how a motion or a case will go. I am feeling bold. I predict the AAA will win and, in doing so, will reinforce my deep reservations about arbitration as a desirable dispute resolution process in most legal disputes.

Update (November 10, 2015): I challenge anyone to read the attached memorandum and to contest that Mr. Timothy Owens was dealt a disturbing and, in fact, shocking injustice. (On the other hand, other allegations about Mr. Owens might lower one’s sympathy for him a notch or two.)

Unfortunately for Mr. Owens, there is some ambiguity as to whether the AAA (who removed one of three arbitrators, post-award under opaque circumstances (described below)) can and should be held liable or whether Hennepin County Judge Thomas Sipkins (who vacated the arbitration award due to the removal of the arbitrator) was responsible.

And, in the latter case, maybe the correct route to justice was via appeal of Judge Sipkins decision, which Mr. Owens successfully sought and then, for reasons unknown, dropped (perhaps a variant of the “settle and sue” model at work?).

Original post (August 25, 2015)“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)?).


Judgment of Solomon by Nicolas Poussin

Judgment of Solomon by Nicolas Poussin

Update (November 18, 2015): Following up on the issues raised in the Bacon Battle below…. So, can you depose the corporate C.E.O. of a huge corporation in a relatively small commercial dispute? Answer: That depends. Does the C.E.O. have “unique knowledge relevant to the issues in [the] case and [an adversary] has not been able to obtain the same information through less intrusive means (i.e., through other witnesses or discovery requests)”? Then, yes, but maybe with time limits in recognition of the big-shot’s schedule and, maybe, his limited involvement in the dispute.

Can you depose the opposing lead lawyer in the pending litigation? Answer: That depends. “[I]nquiry into [the adversary trial lawyer’s] personal—non-privileged or non-work product protected—factual knowledge” regarding, say, a patent at issue (which the lead lawyer prosecuted before the patent examiner) up to the filing of the litigation could be fair game but maybe with time limits in recognition of the hot-shot’s dual roles and, maybe, his limited involvement in the dispute…

U.S. Mag. Judge Becky R. Thorson’s (D. Minn.) decision sounds pretty Solomonic to me…640px-Pig_in_a_bucket

Original post (November 2, 2015) (under headline: On The Implications of Recent Bad News for Bacon): Regular readers of Minnesota Litigator are familiar with “the Bacon Battle” that has been sizzling in Chef Ericksen and Sous-Chef Thorson’s skillet for the past year-and-a-month (better known as United States District Court  Joan N. Ericksen and U.S. Mag. Judge Becky R. Thorson (D. Minn.)).


CatAndMouseChaseJeorenMoeszUpdate (November 16, 2015): We all knew that the use of our courts to blackmail porn-viewers was probably not the best business model though, from the attached petition for discipline, it was pretty lucrative at one point. The icing on the sleaze cake, however, would appear to be the repetitive evasions (commonly referred to as “lying”) to courts when courts started looking at the full scope and methodology of the scam and to whom the cash from it went.Slimed Person cropped SLIME

Update (August 19, 2015): Congratulations to Ted Sheu of Best & Flanagan for notching the win at the Court of Appeals this week in the on-going dogged pursuit of Minnesota attorney Paul Hansmeier, discussed below (Minnesota attorney until when, one has to wonder?). 

And now comes the easy part: collecting the money [insert quiet, knowing, chuckle here]. Mr. Hansmeier has had a terrible, horrible, no good, very bad few months lately. He has notched another sanctions order. He has filed for bankruptcy. And Ted Sheu’s dogged pursuit continues


outstretched handThis post is a call to action. Please help.

There seems to be interest in the Minneapolis/St. Paul legal community for experienced lawyer mentors. There are junior lawyers who feel at sea in one sense or another. There are, believe it or not, experienced lawyers who look for the opportunities to help junior lawyers.

What, exactly, do you want though (both as mentees or as mentors)? Do you want:

  • A shoulder to cry on? (Or, for mentors, to provide emotional and social support to younger lawyers?)
  • “First response” crisis help? (Or, for mentors, to be the life-line to young lawyers in distress?)
  • Long term goal planning and strategy? (Or, for mentors, to shepherd and guide a novitiate with a fairly Herculean, if not impossible, goal?)
  • Nuts and bolts “skill development”? (Or, for mentors, to share hands-on information about the nitty-gritty details of lawyering or operating a small business?)

There are probably other ways in which a mentor might serve a mentee. What are some more?

I, along with about a half dozen other interested lawyers who contribute diverse insight, am on the Hennepin County Bar Association Mentoring Task Force. We are NOT necessarily developing a mentoring system (though we might be).

Our first tasks are to figure out what mentoring programs are out there, how do they work, how do they fail to work AND what do Minnesota lawyers want?

HELP US HELP THE MINNESOTA BAR AND THE STATE OF MINNESOTA. Please comment or send me an email privately if you prefer.



HourglassIn the case of MidCountry Bank v. Rajchenbach, et al. pending before U.S. District Court Judge Susan R. Nelson (D. Minn.), MidCountry Bank lent money to SK International, Inc. and MidCountry Bank required that humans step up as guarantors of the loan to SK, as is extremely common when lending money to businesses.

Banks generally like to be repaid (repaid on time and with interest, no less). So when they make loans, they prefer that humans agree to insure against a borrowing business’ default. It is often easier for businesses to go out of business (that is, to default on debts and, insolvent, dissolve) than it is for rich humans to do the same.

When SK International fell behind on its payments MidCountry Bank proceeded against the guarantors, bringing a declaratory judgment action — a lawsuit seeking a declaration from the Court that, if SK does not come up with all of the money owed to the bank, the guarantors would be on the hook for the balance (plus attorneys’ fees for requiring legal action to collect on the debt).

The lawyers for the guarantors objected to the declaratory judgment action, arguing that MidCountry Bank could not bring it. Seeking a declaration that one has breached a contract is a just a breach of contract action, they argued, not properly a declaratory judgment action.

So MidCountry Bank amended its complaint to add a breach of contract action against the guarantors.