Photo by Scott Streble

Photo by Scott Streble

Minnesota lawyers: take out a sample of some of your recent legal writing (a brief, a contract, correspondence). Does it sing? Is it lyrical? Does it reflect your hard-earned erudition, your wit, your passion, and your personality? If so, you might have a problem.

I recently had the immense pleasure of interviewing a Minnesota litigator and poet, Tim Nolan (author of a collection of poetry, The Sound of It). Among many other refreshing and wise insights, he reminded me that the best legal writing, in most cases, should maybe be invisible rather than beautiful. It should not dazzle or draw attention to itself. It should just get the job done.

ML:                  Before our meeting, I sent you some questions to think about and let’s start with my question about “judge poets” (“Are there poets on the bench today?”)

Tim Nolan:      Here’s what I’ve been thinking about. I don’t think of judicial opinions as being available to poetry. Somebody can write well in a judicial opinion, it’s not a poem. When judges attempt to be literary, usually they fail and there’s a kind of awkwardness and self-indulgence that is disturbing to me. I’m thinking you brought up the marriage equality case. I read Kennedy’s opinion. There’s some beautiful language in there and yet I don’t think of any of it as being the language of poetry because it’s serving the needs of the case. It’s like practicing law would be great if you didn’t have clients, you didn’t have cases, you didn’t have facts.

ML:                  Are you saying that’s what poetry is, it’s law where you have no facts, cases, clients, or …

Tim Nolan:      I’m saying that a requirement of poetry for me is that there has to be an element of the transcendent in the poem or reaching after the transcendent. That’s very much not what a judicial opinion is. A judicial opinion is grounded in the facts of the case and the law.

There are constraints on what a judge can do in an opinion with the language but there aren’t in a poem. I really get annoyed when judges … occasionally I see these opinions where judges indulge in literary extravagance and I find that disturbing because the judge should disappear. The judge should not be present really at all. When a judge steps forward and says — and lets the language take over — I think they do a disservice to the decision. It should be almost without personality in a way.

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CatAndMouseChaseJeorenMoeszMichael Gordon was a Fair Isaac executive who left Fair Isaac to become C.E.O. of a direct competitor in England. Fair Isaac sued Mr. Gordon and his new company, Callcredit Information Group, Ltd., which is located in England. Mr. Gordon had signed Fair Isaac’s non-disclosure and non-solicitation agreements to protect Fair Isaac’s confidential and proprietary information and also its “human capital” (that is, Fair Isaac employees in whom Fair Isaac invested time and money in training). Fair Isaac believes that Mr. Gordon violated these agreements. So Fair Isaac sued Mr. Gordon in U.S. District Court for the District of Minnesota.

But the mouse got away — for now, at least.

Fair Isaac had Mr. Gordon sign a waiver of personal jurisdiction so that Fair Isaac could be sure to enjoy a Minnesota forum for any lawsuit against Mr. Gordon in connection with his employment with Fair Isaac. However, as all civil litigators know that Fair Isaac could not have Mr. Gordon agree to subject matter jurisdiction in U.S. federal court.

There is no way to “agree” to subject matter jurisdiction any more than two professional sports teams could, between themselves, agree to play a game in someone else’s stadium or could agree to have a U.S. District Court Judge to be their referee. It just can’t work that way. So what should Fair Isaac have done?

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keys-473462_1280Years ago, in the dead of winter, I toured a wood panel manufacturing facility in Grand Rapids, Minnesota (up North). The lumber yard representative and I had to get into our cars to visit a distant part of the facility (a 15 minute walk in the dead of winter is distant) and, when he saw me unlock my car to get in, he noted to me that his pick-up was four years old and he had never taken the keys out of the ignition. (Incidentally, he also was a decorated war veteran and a sniper (before becoming a guy who worked at a wood panel manufacturing facility)).

My point is many people in rural United States do not follow widespread safety precautions throughout most of the United States, like taking your keys out of your car and locking your car. And, if you are a decorated sniper or a cop, all the more reason not to worry, right? What sort of lunatic would pull a stunt like stealing YOUR car?

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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,” reputation in the digital age and its implications 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.

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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

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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.)

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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.

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