"Collection Plate." Flickr Creative Commons. Photo by Leo Reynolds.

“Collection Plate.” Flickr Creative Commons. Photo by Leo Reynolds.

(Original post (1/11/14), updated/revised 6/5/15 post, and again, on 11/20/17): The Minnesota Litigator blog of news and commentary on Minnesota civil litigation is now in its eighth year and we have posted more than 2,000 posts over that time.

Several Minnesota judges (and a Justice, and legions of lawyers, and my mother) have all shared their appreciation of Minnesota Litigator with us.

One judge suggested that it is nice to see more guest posters, in particular (ouch?).

We’ve enjoyed quite a few over the years but it would be great to have more.

MINNESOTA LITIGATOR CALL TO ACTION: Contact Minnesota Litigator and volunteer for a guest post.  Show the community (1) that you are an intelligent lawyer (or legal services provider of any kind — e-discovery expert, paralegal, or legal secretary) and a good writer with insight, (2) that you know a thing or two about Minnesota litigation,  (3) that you care about improving the Minnesota civil litigation system by actively sharing experiences or ideas.

We recognize that this may be difficult for lawyers in larger law firms, in particular, that have bureaucracies, that have their own firm websites’ voracious appetite for fresh content.  We get that.  But you can still draw readers to your firm posts, at a minimum, by telling your public relations team to keep Minnesota Litigator in mind — to help get the word out.

Also we immensely appreciate tips about interesting cases and/or interesting legal issues important to Minnesota civil litigators or their clients. Neither Minnesota Litigator nor LEVENTHAL pllc pay money or other consideration, directly or indirectly, for tips or suggestions, but we will give credit, kudos, and we will include you in our mindfulness prayers and/or an invocation to your designated preferred deity or deities (carnate or incarnate, ubiquitous or corner office), as appropriate.

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One Productive Use of Hot Air; but, contra, see, e.g., Bloviating Lawyers.

One Productive Use of Hot Air; but, contra, see, e.g., Bloviating Lawyers.

Update (November 17, 2017): The plaintiffs in the case described below (and Mr. Jerald Hammann, their owner) just will not give up. Hammann has pursued this case for five years and it has been a loser all the way along. The Eighth Circuit, seeing the case for the third time has thrown it out again. (Note that the appeal appears to have been submitted on Tuesday, Nov. 14, and the Eighth Circuit decision was filed two days later.) 

Update (February 3, 2014): On-going litigation for over five years and it appears to have been entirely in vain.  Recounting the saga is too painful for those who have had to preside over it. They have to refer back to earlier decisions in this labyrinth of futility rather than re-re-recite them.  

The U.S. District Court (D. Minn.) did not grant defendants’ pleas for justice (i.e., their requests for sanctions against the plaintiff for allegedly non-meritorious claims), though one can imagine their outrage given their years of defending against claims that could not ever get past motions to dismiss.

Original Post (August 12, 2013) (under the subject: “On A Frustrations of Civil Litigation and a Practice Pointer”): One of the greatest frustrations of civil litigation is that the advocacy/adversarial process sometimes seems to run directly counter to the obviously important ideal of clear communication.

A defense counsel asks a plaintiff’s counsel what proof the plaintiff has for his damages and, in response, gets a diatribe about the defendant’s callousness and dishonesty.  A judge asks a lawyer for any guiding precedent and, in response, gets a worthless lecture about an unpublished legal decision from some foreign court that the judge just implicitly asked the lawyer not to discuss.

Practice pointer:  No one is fooled.  Save your breath and everyone else’s precious time.

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Ana Voss

There has to be a technical psychological expression for the phenomenon that (1) people envy the lives of other people, seeing the positive differentiators, and then (2) reassure themselves that their envy is unjustified, perhaps because of an inability to see the whole picture. Maybe this is captured in the simple concept of “rationalization.”

This, of course, is the underlying message of, “The grass is always greener on the other side.”

But, sometimes it just is. The most fortunate lawyers have great and fulfilling jobs, in which they are challenged every day, alongside dedicated colleagues, and their work makes our communities better, stronger, safer, fairer.

We had the opportunity to talk with Ana Voss of the U.S. Attorney’s Office for the District of Minnesota and her practice warrants envy.

ML: Tell us all what your position is right now.

Ana Voss: Well, I’m currently the Civil Chief of the United States Attorney’s Office. And, by the way, I want to note that, in this interview, all of the views I express are my own, not the opinions of the U.S. Government or the U.S. Attorney’s Office.

ML: Understood. How long have you been Civil Chief?

Ana Voss: I have been that for a little over three years?

ML: Before that?

Ana Voss: Before that, I was an AUSA. I came to our office in 2008.

ML: What did you do before that?

Ana Voss: Before that, I was in DC. I was at a firm in DC doing private practice.

ML: What kind of private practice?

Ana Voss: I did general civil litigation. My practice was kind of all over the map. I did 1983 defense. It was mostly defenses, 1983 cases. I did asbestos litigation. I did attorney malpractice and medical malpractice. I did tax government contracts. I really was all over the place.

ML: What brought you from D.C. to Minnesota?

Ana Voss: My husband. Well, he claims that it was me bringing us here with my job, which is partly true. We were in D.C. and I was thinking I might want to leave private practice and looking around at what would be the ideal job that I’d love, and working in the US Attorney’s Office fit all of my wants and needs and all my hopes, so we were looking at US Attorney’s Offices as well. Smaller cities than D.C.

ML: Tell me why does working at the US Attorney’s Office fit all your “wants and needs”?

Ana Voss: The thing about our practice is that you don’t have to specialize at all. Frankly, we don’t have the resources to specialize. We have to be generalists, so we work all kinds of different cases. I never had an interest in any particular subject area of the law. I jumped around a lot at the firm, and I liked the practice of litigation, but I didn’t necessarily care what the subject matter was of any lawsuit, so working at a US Attorney’s Office allows me to continue to be a generalist. I really love that. Plus, I don’t have any billing or other requirements. We’ve got no shortage of work. I don’t ever have to drum up business for people, from clients.

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Today’s the day: the start of a patent infringement trial before Chief U.S. District Court Judge John R. Tunheim (D. Minn.) in Bombardier v. Arctic Cat. The case has been pending for about five years.

On Friday, Judge Tunheim decided a passel of “motions in limine,” that is, evidentiary motions on the threshold of trial.

If one thinks of every judicial decision up to and through trial as a fork in the road that has an impact on the ultimate destination or end-point of litigation, rulings like Judge Tunheim’s illustrate the impossibility of prediction and the inherent (and dramatic) uncertainty of civil litigation.

On balance, we think Bombardier came out on top in the pretrial evidentiary battle. Stay tuned to find out whether this trial actually goes to verdict and, if so, for whom and for how much.

If you are a civil litigator and you do not know of this rule, you’re welcome:

Under the Federal Rules of Civil Procedure, a motion for attorney fees “must . . . be filed no later than 14 days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B)(i). Noncompliance with this timing requirement is a sufficient reason to deny a motion for fees absent some compelling showing of good cause.

It is painful to read when lawyers — good lawyers — have to prostrate themselves before a court, own and accept responsibility for carelessness, and ask for leniency. We have occasion to feel such schadenschade (an antonym of schadenfreude that we have just made up and a synonym of sympathy) this week. Two distinguished local firms appear to have missed the deadline for filing a petition to the U.S. District Court for an award of their attorneys’ fees — missed the deadline by a mile and then some — and, nevertheless asked the court to overlook their error and entertain a motion for award of attorneys’ fees.

U.S. District Court Judge Donovan W. Frank (D. Minn.) denied the plaintiff’s lawyers’ request.

It could have been worse. The lawyers’ admitted negligence hurt only themselves rather than their client.

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Update (November 8, 2017): Just posting a reminder.

Original post (October 2, 2017):  Try to imagine that your passion in life, your dreams, your love, is art and artistic expression. You sacrifice financial security. You expose yourself to society in a deeply personal way unlike most people. You expose yourself to contempt, to withering criticism, and, most commonly and painfully, to — to complete indifference, Few of us have the courage.

Talk about a hard road…

If you can imagine the challenges faced by contemporary artists, it is a small step for the Minnesota lawyers among you to imagine the satisfaction and gratification of helping artists with legal problems.

I have had the honor and pleasure of volunteering legal advice to artists referred to me by Springboard for the Arts over the past 10+ years. I have been given artwork in appreciation for legal work I have done. I have helped some ambitious, inspiring, and unsung heroes. Consider getting involved, not simply to help people who need help, but to broaden and enrich your experience and your life.

Esmeralda Sorchaga sued Ride Auto in connection with her purchase of a used pick-up truck (specifically, a 2008 Ford F-350) from Ride Auto. She alleged fraud by the salesman. Following a bench trial, the district court awarded Sorchaga $14,366.03 in damages and $21,949.35 in attorney fees. The Minnesota Court of Appeals affirmed. Ride Auto sought Minnesota Supreme Court review.

At oral argument last week, out of the blocks, attorney Robert Bruno, counsel for Auto Ride, stumbled, beginning his argument by pointing out that the buyer and Ride Auto salesperson spoke to one another in Spanish. Justice Lillehaug promptly questioned how that had any relevance to the case. Mr. Bruno did not seem to have a satisfactory answer. It was odd strategy to highlight this at the outset of Ride Auto’s argument.

And it did not get much better from there.

Mr. Bruno argued that a car seller could tell a prospective car buyer, “Pay no attention to the ‘as-is’ term in this car sale contract. If you buy this car and have problems, we’ll fix it for free,” and, Mr. Bruno argued, the “as is” clause would still be enforceable. Mr. Bruno suggested that there is no recourse for oral fraud in connection with the sale of a used car if the car is sold “as is.”

We might call this doctrine Xtreme Caveat Emptor™.

Minnesota Supreme Court Justice David Lillehaug seemed gobsmacked: “No matter how drastic the fraud, no matter how sleazy the salesperson behaves, that word, ‘as-is,’ ends the case as far as the warranty of merchantability?”

In response, Mr. Bruno denied Justice Lillehaug’s hypothetical though, at other times in his argument, Mr. Bruno adopted, endorsed, and embraced the very argument that he rejected in response to Justice Lillehaug’s question.

Justice Stras asked Mr. Bruno about duress. “Let’s say the salesperson put a gun to a customer’s head and said, ‘You need to sign that sales contract right now…would we enforce that contract?”

Mr. Bruno answered that this would not be an enforceable contract since the contract was compelled under duress. Justice Stras suggested that Mr. Bruno’s distinction between duress and fraud made no sense.

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BedUpdate (November 7, 2017): The linked document clarifies that defendants in the Select Comfort bed battle were not entirely victorious but, still, they basically won. We note that the judgment is the 599th docket entry in the case. We do not know the legal fees and costs spent by Select Comfort but 10x the recovery or more seems likely.

Update (October 19, 2017): The linked document is a little puzzling but it looks like a total victory for the defendants.

Update (October 17, 2017): The extraordinarily hard-fought and long-standing civil litigation (trademark litigation, to be specific) between Minnesota bed behemoth, Select Comfort, and a smaller on-line bed-selling competitor, Personal Touch Beds and Personal Comfort Beds (et al.), finally went to trial before U.S. District Court Judge Donovan W. Frank (D. Minn.) over the past couple of weeks. The jury is deliberating…

Here-linked is the defendants’ motion for judgment as a matter of law filed this past week.

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The focus in recent years on eradicating bullying and bigotry, particularly in our schools and among our children, is among the many welcome gales of change that we are going through now.

Very few people (i.e., Nazis, “Alt-Right” activists, white supremacists) object to a zero-tolerance policy of such hateful, divisive, and corrosive behavior.

In a twist, U.S. District Court Judge Ann D. Montgomery (D. Minn.) faced a case where an alleged bully/bigot child brought a lawsuit based on the discipline he received (a one-year suspension) based on his own disability.

That is, the child, Minor Doe, allegedly defaced a school bathroom with racist graffiti. Represented by the School Law Center, Mr. & Ms. Doe, on behalf of their child, Minor, argued that the discipline violated Section 504 of the Rehabilitation Act by expelling Minor Doe “without first conducting a reevaluation of the kind specified in Section 504 of the Rehabilitation Act” in light of the child’s diagnosis for ADHD, depression, and PTSD.

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Update (November 3, 2017): A man sits at a rented picnic table, rented by a restaurant for Ma & Pa Kettle days in Kettle River, Minnesota. The rented picnic table collapses. Patron (Mr. DeWitt) suffers serious injury.

As stated in the original post (below), the Court of Appeals in Mr. Dewitt’s case, surveying “chair collapse case law” found that the doctrine of “res ipsa loquitur” (“RIL”) should apply.

Defendant Tower Tap sought Minnesota Supreme Court review of the intermediate court’s decision on three distinct bases. As to the RIL and another issue, Tower Tap lost. The Supreme Court refused to revisit the Court of Appeals decisions on two of three issues raised.

The Supreme Court only agreed to hear the third issue:

Did the Court of Appeals err when it affirmed summary judgment applying the indemnity clause to [Picnic Table Rental Company’s] own acts of negligence even though the clause does not expressly provide for that protection? The Court of Appeals [ruled in favor of Picnic Table Rental Company, holding that] the indemnity clause [applied] to claims of negligence against [Picnic Table Rental Company].

Translation: Picnic Table Rental Company included a contractual provision that provided that it would not be liable for injuries sustained if a Tower Tap patron got hurt. The issue on appeal: if the provision does not expressly provide indemnification for Rental Company’s own negligent acts, does the law provide that this can and should be read into the indemnification agreement?

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