Cvr_sidefront_largeFor a long time now, commercial airplanes have been the most dedicated autobiographers on earth. They obsessively record every mood swing, their petty issues with wind speed, engine function, cockpit chit-chat, and so on…

(We call the airplane’s diaries “black boxes” but, of course, that would hardly be convenient when rummaging through the wreckage at crash sites.)

All of us with smart phones are catching up to the airlines. And if you have a “fitness tracking” device, there’s that too. We’re packing “flight recorders.” If you’re a dataphobe/technophobe, this is worrisome. If you’re a dataphile/technophile, it’s all good (and getting better every nanosecond).

But the fact is that probably none of us know how this will play out. But play out it will. It has changed and will continue to change the practice of law, the rules of evidence, and trials.

Kate Crawford recently wrote a piece in The Atlantic about the use of “Fitbit activity data” in a trial. I recommend you read the whole article. It is not long. She concludes:

[T]he Fitbit case may be just one step in a much bigger shift toward a data­ driven regime of ‘truth.’ Prioritizing data—irregular, unreliable data—over human reporting, means putting power in the hands of an algorithm. These systems are imperfect—just as human judgments can be—and it will be increasingly important for people to be able to see behind the curtain rather than accept device data as irrefutable courtroom evidence. In the meantime, users should think of wearables as partial witnesses, ones that carry their own affordances and biases.

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Here is a pattern that civil litigators see from time to time: company or individual gets sued and the defendant has a series of lawyers representing it, one after the other, starting with the legal rockstar, going to the B-list, down to the C-list, and so on. Sometimes the unfortunate defendants finally end up “pro se,” that is, in court without a lawyer. This is almost always because the unfortunate defendants’ resources are being depleted and such defendants are progressively tightening the belt on their legal fees.

(Corporations, on the other hand, are not allowed to appear “pro se,” that is at least until they bring a constitutional claim that this denies them their constitutional right to due process.)

I noted a recent case that seems to deviate from this pattern in a curious and inscrutable way.

C.H. Robinson, a major Minnesota employer and provider of transportation logistics, helped U.S. Sand, based in Texas to ship tons of “ceramic proppant” from China to the Bakken oil range in North Dakota. This was not an act of charity on C.H. Robinson’s part. C.H. Robinson had hoped and expected to be paid for its work. U.S. Sand allegedly did not pay C.H. Robinson and so C.H. Robinson sued U.S. Sand.

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Brass_scales_with_cupped_traysYou retain a lawyer in year 1 to help you in a trusts and estates matter. The lawyer assists you for ten years. In year 12, new lawyer identifies that the first lawyer you hired did a bad job and the lawyer’s substandard performance of work resulted in large otherwise avoidable tax liability. New lawyer sues old lawyer on your behalf in year 13.

The statute of limitations is six years.

Question: Is the malpractice claim barred by the statute of limitation?

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EclipseUpdate (November 19, 2014): Should the sanctioned lawyer and his sanctioned law firm get some kind of “bonus points” for effort or for the creativity for their response to the latest motion brought against them to pay up on the sanction levied against them last summer, described below? What are they thinking?

Original post (October 15, 2014) (under subject line: How Much Would You Pay to Buy $20,540.50?): Seriously. I will sell you $20,540.50 if the price is right. (And it might be less than $20,540.50, by the way. depending on your delivery date (plus shipping and handling)). Give me a jingle.

The reason I pose this silly question is that Plaintiff Aviva Sports won an award of sanctions for $20,540.50 in July, 2013 and, to date, it has not gotten any money. How much should Aviva and its lawyers invest in seeking payment? Most recently. Aviva Sports’ counsel has brought a motion to add a $1,000/day fine on Stephen Lobbin and the Eclipse Group until they cough up the $20,540.50. So, in a year, they’d presumably be entitled to $385,540.50. For which they will have paid how much? The asset of a receivable can become a liability.

 

ShipwreckUpdate (November 18, 2014): When is a meritorious lawsuit more likely a liability rather than an asset? When the defendant is judgment-proof.

I will go out on a limb and predict that RAzOR Capital, the subject of an earlier post, below, will win on its recent motion for summary judgment against HP Debt Exchange, LLC. But that, plus about $2.00, might only get Plaintiff RAzOR a small cup of coffee.

Some time ago, I praised a resounding victory of a mortgage lender, RFC, in a mortgage repurchase case against Terrace Mortgage and that win included a hefty award of the plaintiff lenders’ attorneys’ fees. But, remember, the Court does not literally award prevailing parties’ attorneys’ fees. The Court does not cut the check. In the relatively rare circumstances where plaintiffs (or defendants) are awarded their legal fees, the litigants only get the right to get those fees from their adversaries. But if your adversary does not have a commode to micturate into, he can’t pay his own lawyers, let alone yours. You (and RFC) might taste the bitter (and expensive) dust of a resounding but pyrrhic victory. (There is some suggestion that a judgment against Terrace Mortgage might not be particularly valuable: RFC’s efforts to convert its judgment into cash appear to be on-going…)

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Grass Single Nozzle 1In July of 2012, around noon, Lynnette Rae Heitzman was mowing her lawn in Eveleth, Minnesota. She was confronted by a Gilbert, Minnesota police officer, Scott Engelstad, who instructed her to stop her mowing.

Officer Engelstad supposedly had concerns about clippings in the road. The officer says that someone called “911” to complain about  “a large row of grass clippings, about 600 feet long, [that] had been dumped on both sides of Differding Point Road.”

Did the fact that Ms. Heitzman’s brother was “involved in substantial contested matters with [Officer] Engelstad’s wife” (Complaint, Para. 43) influence the interaction between Ms. Heitzman, Officer Engelstad, and the City of Gilbert?

The interaction did not go well. Heitzman alleges that she was screamed at, dragged some distance, thrown against a car, handcuffed, and illegally arrested. Officer Engelstad’s version of the events of that afternoon were entirely different.

Trial starts today on Ms. Heitzman’s claims of excessive force before United States District Court Chief Judge Michael J. Davis (D. Minn.).

Read after the jump about a typical pretrial evidence fight in the case…

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While I love nearly everything about our system of justice, and those who labor in its fields, one occasional exception for me has been the “legal fiction”.  Pick your favorite. There are many examples.  To name a few of current significance:   The corporation as “person”, and money as “speech”.

One of the most laughable of legal fictions, is also one of our oldest.  The bane of trial lawyers everywhere.  It is the “curative jury instruction”.  I was reminded of this last weekend while reading a Pioneer Press account of a local criminal trial in progress. (While the story inspired me to jot this post the same day, I delayed its publication until the trial was complete. The jury delivered its guilty verdict after two hours of deliberation on Wednesday.) (more…)

Update (November 14, 2014): Since my earlier post on Bruce Carneil Webster’s case, below (the death penalty case in which Dorsey & Whitney lawyers are fighting for Webster, a mentally retarded man on death row), Webster lost the appeal before a panel of three judges on the U.S. Court of Appeals.

So Dorsey lawyers undertook the extraordinary challenge of seeking “en banc” review by all of the judges on the U.S. Court of Appeals for the Seventh Circuit of their earlier loss before the three-judge panel. “[E]n banc hearing or rehearing is not favored and ordinarily will not be ordered unless… the proceeding involves a question of exceptional importance.” In fact,  the Seventh Circuit’s own Practitioner’s Handbook says that,  “It is more likely to have a petition for writ of certiorari granted by the Supreme Court than to have a request for en banc consideration granted.”

Putting Mr. Webster to death may be barred by U.S. law. This would appear to be a question of exceptional importance, not just to Mr. Webster, but also to his lawyers, to the entire U.S. Court of Appeals for the Seventh Circuit and for you and me, as well.

Congratulations and best of luck to the Dorsey team in their on-going efforts. Oral argument is scheduled before the all of the active judges on the Seventh Circuit Court of Appeals on January 7, 2015.

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haircut-33187_640Update (November 13, 2014): This endless case might be nearing its end, with the Minnesota Court of Appeals’ dramatic reduction in the trial court’s award of the victorious Plaintiff’s lawyers’ fees.

We conclude that the district court abused its discretion in awarding $221,499.50 in attorney fees [to the winning Plaintiff’s lawyers] for this litigation…This case is no different from other cases tried by [Plaintiff’s Lawyers], who specialize in lemon-law litigation. No novel issues were raised in this litigation and no complex expert testimony was required. Green called six witnesses during the four-day trial, and BMW called five. Nevertheless, [Plaintiff’s Lawyers] billed more than 600 hours to prepare and present her case. The skill and experience of the attorneys are adequately reflected in their generous hourly rates, and should have resulted in fewer hours of preparation. After analyzing the result obtained and the issues and amount involved, we conclude that [Plaintiff’s lawyers] billed many hours to BMW that they would not properly bill to their client and that they did not exercise billing judgment.

Given the nature of the case, the expertise of [Plaintiff’s lawyers] , the amount involved, and the results obtained, we conclude that it would have been reasonable for [Plaintiff’s lawyers]  to spend no more than 300 hours on this litigation.[Plaintiff’s lawyers] are therefore entitled to $110,332 in attorney fees for the original litigation.

Groan.

Where to start?

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Minnesota Litigator - Rosalie Wahl  A new book has come out on Rosalie Wahl and her place in Minnesota history. And an event will be held next week hosted by the Minnesota Supreme Court Historical Society that will celebrate her life. So it’s a good time to think about her. One of the things everyone knew about Rosalie was how much she loved music. As a Quaker, she participated in many Quaker music sessions. And she loved good folk music and other singing.

At Rosalie’s retirement party, back in 1994, Justice M. Jeanne Coyne (the second woman on the Minnesota Supreme Court) talked about her friend’s love of music, and how it connected to her love of writing.

Another person who has spoken about legal writing and music is legal writing expert Ross Guberman. The author of Point Made: How to Write Like the Nation’s Top Advocates, he visited our state earlier this year to speak at the last Appellate Practice Institute. Ross sees a connection between writing and music. Both build on rhythm, sounds and cadence. An appreciation for music can make you sensitive to the sound of a sentence and can help you craft sentences that appeal to both the eye and the ear. A lot of legal writing conveys meaning accurately, but in a heavy and cumbersome way. Legal writing that sings, by contrast, has a light lyrical feel and is attuned to rhythm and not just meaning.

Ross says that you can be a great writer without a music background, and can be a good musician without being a good writer. But an awareness of how music and writing connect can help make your prose soar.

Register here to attend the Rosalie Wahl celebration next week.