Triple Silver Disaster, Andy Warhol (at the Wadsworth Atheneum, Hartford, CT)

Update (February 18, 2019): We will be interested in the response to Carleton College’s motion for summary judgment in the case brought against the college by a former Carleton student, Ms. Elizabeth Shank. In the posts below, we discuss Ms. Shank’s claims that arise from two different alleged sexual assaults she allegedly experienced at Carleton at the hands of two different fellow students (one during her very first week at the school, the other a year-and-a-half later).

As we point out in the previous post, below, colleges are placed in an unwinnable situation where they have to balance the interests of accusers, the accused, fellow students, parents, faculty, alumni, the public (including law enforcement) (and undoubtedly additional stakeholders clever readers can list). They want, of course, to placate every stakeholder. This might be inherently impossible in many cases, most cases, or, maybe even all cases.

Most importantly, colleges won’t know exactly what happened (on 9/12/11 and the Spring of 2013 in the case of Ms. Shank). The only certainties are (1)  they will never know; and (2) what happened will be sharply contested.

We have taken the position consistently in this case that Ms. Shank’s claim against Carleton College for “intentional emotional distress” is preposterous and that her claim for punitive damages against the college is, as well. Nevertheless, the U.S. District Court (D. Minn.), to date, has refused to throw out either of these claims.

Will Carleton face the triple silver disaster: 1) the threat of a trial, on (2) a claim of intentional infliction of emotional distress, and (3) the threat of punitive damages? If so, we hope that Carleton will take it to and through trial and then, if unsuccessful, will appeal. There are limits as to what a college can do. In our view, the implications of the claims in this case go far beyond that.


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

The pathetic thing about this week’s ruling that Plaintiff Wing does not have to pay Defendant Tricam’s claimed expert witness fees is that the two sides had been negotiating their disagreement as to responsibility for the fees and they were just $500 apart.

Tricam could have accepted $500 less than it demanded from Wing. Instead, Tricam brought a motion for the full $4,500 that Tricam felt Wing owed Tricam and Tricam lost the motion entirely. That is, Tricam took a $4,500 loss and multiplied it by some untold amount.

We suspect that Defendant Tricam is fit to be tied about its litigation with Wing, a competing ladder maker.

Drawing of Anger, made possible by Creative Commons,

The fight is whether Tricam’s ladder complies with a particular ANSI standard as it claims to. If it doesn’t (which is not conceded), does application of this sticker to the ladder (see the blown-up sticker below) amount to “deceptive trade practices” or “false advertising”?

Does Wing truly believe that ladder shoppers are tricked into buying Tricam ladders based on this sticker?


Some years ago, we told the war story of a jury trial on the meaning of “operates via buoyancy,” where the two sides battled for a few weeks to persuade the jury over their respective views on the meaning of the word, “buoyancy.” After all that, it became apparent from a note sent out by the jury during deliberation that the jury felt that the case hinged on the meaning of the word, “operates” (which neither side had addressed during the trial).

And what happens if a jury finds that Party A is “not at fault” but also finds Party A is also “partially responsible for the injury”?

What is the judge supposed to do? Is she supposed to abide by this internally inconsistent verdict? (How?) Does the judge just get to pick the finding that she agreed with? Does the entire trial have to be re-done? Does Party A win based on this finding of “no fault”? The Minnesota Court of Appeals addressed this situation this week in Anderson v. ISD 96, a lawsuit arising out of a car/school bus accident.


An emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action,” otherwise defined as “an urgent need for assistance or relief.”

What is not an emergency? 99.999% of what U.S. civil litigators do for a living.

So we would suggest that Minnesota civil litigators be sparing with cries of “emergency.”

Take Homestar Property Solutions, LLC v. Safeguard Properties, LLC (please). On the threshold of trial (and then, again, after trial was postponed for several months), Safeguard has filed two “emergency” motions with the Court about Plaintiff Homestar’s pre-trial document dumps (see here and here).

We tease Defendants Safeguard and Bank of America for their so-called “emergencies.” On the other hand, will U.S. District Court Judge Susan R. Nelson (D. Minn.) be more angry at Defendants’ histrionic invocation of “emergencies” or by the Plaintiffs extraordinary delays in its document production?


Updated post (February 8, 2019): One fertile patch for malpractice claims are financial transactions and a lawyer’s undisclosed conflicts of interest or breaches of fiduciary duties (the duty of loyalty, candor, confidentiality). These are common pinch-points because transactional lawyers are, in an important sense, in between parties as much as they are on one side or the other in transactional work. In other words, if Party A and Party B are negotiating to form Venture X together, the parties obviously want to be collaborative rather than adversarial. Their lawyers, too, would like to be everyone’s friend (and likely hope to be Company X’s lawyers for years to come)….

Then there’s the challenge that ventures may and often do involve not just two parties but many more. Still further, Parties A, B, C and D are often non-human entities. Each maybe composed of multiple members or shareholders, some of whom are also non-human entities, etc. etc. And, of course, Party A might own a minority interest in Party D. 

Still further, transactional lawyers add their sprawling business ties (and their law firms’ ties) sometimes accumulated over decades to these risky and complex situations. Every time, they owe their allegiance to the client or clients they represent in the deal at hand — for sure — but also, for some, there is an irresistible (sometimes inconsistent) allegiance to themselves and their law firms.

The essential claim in Azarax’s professional malpractice lawsuit against a transactional lawyer is that he, as Azarax’s predecessor’s lawyer, failed to disclose his involvement with another business (“WCV”) and conspired to shift a lucrative business opportunity from Azarax’s corporate predecessor to WCV in which the lawyer had an ownership interest. This, in turn, is alleged to have caused Azarax’s initial public offering (“IPO”), which would have raised hundreds of millions of dollars, to crash and burn.

If these claims are true, this would appear to be an open-and-shut case of breach of fiduciary duty and professional malpractice in our view.

But factual allegations can be wrong, of course, and what appears to be an open-and-shut case, even if all of the facts are as alleged, can be deceiving, particularly when it comes to the enormous hurdles of legal malpractice actions.



The Judge ruled against the motion in limine you brought before trial.  You didn’t raise that in a new trial motion.  May you challenge the ruling on appeal?  In Bhakta, the Minnesota Court of Appeals said, “no.”  The Minnesota Supreme Court disagreed.  In a new decision in the case, the Minnesota Supreme Court said, “yes,” a motion in limine decision made before trial may be challenged on appeal, even though no new trial motion challenging it was made.

Two earlier Minnesota Supreme Court cases laid out the basic rules.

Sauter says that trial procedure, evidentiary rulings and jury instructions may be reviewed on appeal only if a motion for a new trial was made.  The rationale:  the district court should be given an opportunity to correct errors, perhaps obviating the need for an appeal.   And perhaps developing the record more fully, so that it is available if an appeal goes forward.  In another case, Alpha Realty, the Minnesota Supreme Court held that substantive legal questions decided by the district court may be reviewed on appeal whether or not a new trial motion was made.

A motion in limine decision makes an evidentiary ruling, so the Bhakta Court of Appeals reasoned that that kind of decision was covered by the Sauter rule, and not reviewable on appeal without a new trial motion.  The Supreme Court reversed, reasoning that when a motion in limine is made before trial, the district court generally has the time for thoughtful decision-making.  There is little additional benefit to be gained from a second review by the district court.

So, where do we stand now?  No new trial motion is needed for review of motion in limine rulings made and decided before trial.   The last sentence of the Bhakta analysis says, that, “[t]he Sauter rule continues to apply to motions brought or decided during trial.”    In a footnote, the Court identified an issue to be determined: whether the Rules of Civil Appellate Procedure should be amended or clarified regarding when a motion for a new trial is required to present an issue for appellate review.   The Court referred the question to the Court’s advisory committee on the appellate rules.  So expect more discussion of this issue and perhaps proposed amendments to the appellate rules.


For those of our readers who are unfamiliar with texting/Twitter acronyms/abbreviations, TIL = “Today I learned [about]….”

We recently encountered this objection to an interrogatory that we had not seen before:

[I]t is an impermissible “blockbuster” interrogatory which seeks to elicit every fact related to the action in one interrogatory. See Hilt v. SFC, Inc., 170 F.R.D. 182 (D. Kan. 1997) (“there comes at some point a reasonable limit against indiscriminately hurling interrogatories at every conceivable detail and fact which may relate to a case…. Indiscriminate use of blockbuster interrogatories, such as these, do not comport with the just, speedy, and inexpensive determination of the action. To require answers to them would more likely cause delay and unreasonable expense of time, energy, and perhaps money.”).

It is an odd objection in that it coins a phrase, “blockbuster interrogatory,” for an extraordinarily common and generic interrogatory (e.g., “Identify all the people with knowledge of the claims and defenses asserted in this case….”) and characterizes it as “impermissible,” which it is not. But it is a catchy phrase, no?

In our experience, whatever you call them, these so called “blockbuster interrogatories” are, as a practical matter, fairly useless. Such interrogatories are often objected to as “overbroad,” “burdensome,” and (by some) “unanswerable,” but maybe the rules will be amended to bar blockbuster interrogatories so they are actually “impermissible” in addition to being useless.


Update (January 30, 2019): The “It Gets Better Project” came onto the scene in 2010 and it is an inspiring movement to reach out to LGBTQ+ adolescents who face such challenges in a society (and in much of the world) where they are treated with irrational fear and hatred.

It has nothing to do with Mr. Paul Hansmeier.

In his case, it gets worse. (Unsurprisingly, the Director of the Office of Lawyers Professional Responsibility has filed a petition for his disbarment.)

The depth of his fall seems almost endless.

Original post (August 24, 2018): If you do not know the story of Mr. Paul Hansmeier’s meteoric “success” as a lawyer (that is, a fleeting financial success thanks to a multi-million dollar pornography-based shake-down scheme), followed by his precipitous fall into an almost bottomless abyss of ignominy, read about it here.


Update (January 30, 2019): In the dispute about “susceptor food packaging” or “SFP,” described below, Plaintiff Inline Packaging (“Inline”) appears to have gotten a butt-kicking (pending appeal) (link is to the U.S. District Court’s grant of the summary judgment motion of Defendant Graphic Packaging International “Graphic”).

Now Graphic seeks $304,930.89 in costs, the vast bulk of which—$226,137.53—is for costs related to its e-discovery platform, Integreon Discovery Solutions. (Here is Inline’s opposition to being saddled with these substantial costs.)

As readers can see in the earlier post below, it seems that Inline pushed Graphic hard during discovery and now, victorious, Graphic naturally wants to be reimbursed.

Whether e-discovery costs are included in recoverable (“taxable”) costs is an unsettled business about which we’ve posted before. So, are these costs taxable or not and why does it seem difficult for the U.S. District Court for the District of Minnesota to issue clear guidance or all be on the same page?

It seems to us that this is a decision that has to be tailored case by case.

Often, one side or the other bears more responsibility for the high cost of e-discovery and it may or may not be the “prevailing party.” If a party is BOTH the prevailing party AND the victim of the other side’s hyper-zealous e-discovery, it was seem obvious it should recover its e-discovery costs in their entirety. By the same token, if a prevailing party chased its own tail or self-imposed a particularly onerous e-discovery burden, it would seem obvious that it should not get a penny for its self-inflicted wound.

Finally, interesting practical considerations: (1) large law firms have e-discovery capabilities in-house. Smaller firms cannot. To what extent does disallowing the recoverability of e-discovery costs fall particularly hard on smaller firm clients (i.e., often smaller business or individuals)? (2) should “ability to pay” be a consideration un imposing e-discovery costs as “taxable costs”? Little Guy v. Corporation litigation will very likely include asymmetric e-discovery costs and impositing e-discovery costs in cases like that could be financially devastating to Little Guy (or be a “rounding error” for Corporation, on the other hand).


From the proposed Findings of Fact and Conclusions of Law (“FOFCOL”) of St. Cloud State University (SCSU) after a trial before Chief Judge John R. Tunheim of the U.S. District Court (D. Minn.), we  learn that SCSU appears to be a struggling educational institution.

As a result of the decline in enrollment and accompanying revenues, SCSU has had to endure layoffs, hiring freezes, program cuts, and cutbacks. This has impacted students, faculty, staff, and everyone affiliated with the campus community. For example, SCSU has eliminated 36 academic programs.

(See here at p.2.)

The question for Judge Tunheim appears to be whether SCSU’s unfortunate austerity measures have fallen disproportionately on SCSU’s female athletes and have therefore resulted in violations of “Title IX” (Title IX of the Education Amendments of 1972, codified at 20 U.S.C. § 1681(a)).