I like to think that we are in a watershed moment, an inflection point, a time of irreversible change, where our society can and will address sexual violence and sexual abuse as it has never before. Horrific wrong-doing has taken place — is taking place — causing profound damage to the most innocent and the most vulnerable. This evil has been under-reported and under-deterred for generations.

Sexual abuse is repugnant and pervasive at the same time. But at least today many of us are able to talk about it, to address it, and to attack it as never before (CLICK HERE FOR NOTICE OF DEADLINE).

Fraser_ThomasHennepin County District Court Judge Thomas S. Fraser is one of the best-known civil litigators (and now trial court judge) in Minnesota due to his 30-years of practice, his 25 years as a neutral, and his large role in the management of Fredrikson & Byron.

Minnesota Litigator was delighted and honored to have the chance to interview Judge Fraser last week.

Minnesota Litigator (“ML“): What’s your day been like?

Hennepin County Judge Thomas Fraser (“TF“): I had several lawyers in court this morning on a Torrens matter and I kept the lawyers around for two hours. There were alleged forged deeds and the question is who bears responsibility for the forged deeds. And it’s a case of first impression and it was interesting.

ML: Were the lawyers knowledgeable?

TF: All very knowledgeable real estate experts and they all said this is a case of first impression and they cannot agree on who bears responsibility.

ML: Did you make progress?

TF: We set up a status conference about where we needed to go on this. But it reminded me of the variety of cases that a trial judge sees. I had a verdict in a railroad injury case on Monday – all federal law. Then a case involving Medicare. Subrogation rights in no-fault cases. The variety is one of the attractions of the job but it doesn’t make it easier.

ML: Any parts of the job that you don’t like?


Minnesota Litigator - federal rule changesIt’s here. Appellate e-filing in Minnesota. Attorneys may now e-file and e-serve briefs as long as the other side is represented by an attorney admitted in Minnesota.

Before being allowed to e-file, you must have taken (and passed!) a quiz provided by the court. The purpose of the quiz is to ensure that filers have enough information to e-file effectively. And you may take it as many times as you need to.

You will be given 10 questions (out of a bank of 30). Court staff says that you will pass if you read the FAQs that are part of the E-MACs User Manual. And that the test will take about 10 minutes.

To register as an e-filer, you will need to create a user name and password. Court staff recommends using your bar ID as your user ID because it is unique and won’t change.

Now that I have registered, I can report that the test does take 10 minutes or less. And that you will pass if you review the FAQs on the Court website.

Click here for background on registering and taking the quiz.  And click here to get started.

The Court is sponsoring two training sessions in June on the new system.  Both will be held starting at 11.30 am, one in St. Paul on June, 12, and one in Minneapolis on June 19, 2015.  Click the links for more information.

thin-ice-17996_1280Market pressures can push lawyers (like all people) out past their sure-footed core competencies onto thin ice and for several years now, market pressures for U.S. lawyers have been more intense than ever been before. No surprise, then, that there has been a concurrent up-tick in alleged professional negligence and attorney wrong-doing.

Sometimes lawyers’ errors mean meritorious plaintiffs are unsuccessful. Sometimes, lawyers’ errors mean  defendants have to pay to settle cases that they never should have had to deal with at all, much less pay undeserving plaintiffs.

Tragically, sometimes lawyers’ mistakes can have even worse consequences. (more…)

Time to remember and celebrate those who have sacrificed so much so that we could be here.  And time for R&R.  Happy Memorial Day and no new posts until Tuesday, May 26.

512px-Potato_and_corn_chowderImagine Grandma thrown into the slammer (or maybe merely fined) for selling her wicked good home-made chowder at her garage sale. Give her one warning and, if she does not repent and mend her ways, then it’s off to Shakopee? Most of us would find this to be grotesque, over-reaching, state intervention into a relatively innocuous interaction. Such informal human interaction should be entirely free from government intrusion.

Some garage sale participants might look at the crock-pot and wonder how long since the contents were refrigerated and at what temperature the chowder is kept at. (And where is sweet old Mormor Linnea getting her “fresh” shellfish?) They might decide to take a pass.

Others might buy a cup and enjoy some wonderful home-cooking.

Still others might get food poisoning and die. Tough quahog. Caveat emptor, am I right? (Mormor Linnea wouldn’t hurt a fly. She can be a little forgetful about the details of good food hygiene. But she’s not evil…)

What if Mormor Linnea were making chowder by the 100-gallon vat and selling it in mason jars out of the back of her truck year-round? Do you think at some point it is appropriate that she might be regulated by the state, that she might be required to get a license from the state to sell the her death potion chowder, that she might have to put up with food inspectors checking out her operation, making sure she carries appropriate insurance, and so forth? At what point do we all welcome and embrace government involvement in our day-to-day interactions?

How about when Mormor Linnea is making more than $5,000/year selling her foodstuffs or when she sells “outside of community events or farmers’ markets”?


Trench WarfareUpdate (May 21, 2015): Almost a year ago to the day, I predicted that Graffiti Entertainment v. Navarre was going to be a long hard slog (see below) and it may very well be. It is clearly on-going but how much longer can this warfare go on? Desertion seems to be a problem in Plaintiff’s army. In one of the stranger sanctions memos I have seen in some time, Defendant Navarre notes that Plaintiff cannot seem to hire a lawyer to prosecute its lawsuit. Plaintiff appears to have identified a convicted felon in Illinois as its lawyer except that the convicted felon is not a member of the Minnesota bar, is not admitted to the United States District Court, and he denies that he intends to appear in the lawsuit. “Defendants now respectfully move this Court to stop this nonsense.

Original post (May 23, 2014): Too often, particularly early in litigation, lawyers paint their clients a rosy picture of shock and awe swift resolution. I have found in my nearly twenty years of practice of civil litigation in Minnesota that I have been quite good at predicting how most cases resolve (dismissal, summary judgment, settlement, trial) and, roughly, for how much money (with an exception here or there, obviously). But I have been far less successful in predicting lawsuits’ durations.

Generally, most cases that I have followed have gone on far longer than necessary. Some cases, however, give every indication from the get-go that they will be grueling and protracted battles. I get that sense from the fairly recently filed lawsuit of Graffiti Entertainment, Inc. v. Navarre Distributions Services, Inc. and Speed Commerce, Inc.


Apitz v HopkinsHopkins buys Lot 3, which has an easement across Apitz’s property, Lot 2, so Hopkins can access the “ROAD.”

Hopkins fences off the easement over Apitz’s property and, essentially, bars Apitz’s access to part of Apitz’s own property (the part over which Hopkins has an easement). (The diagram above is illustrational. I have no idea where the easement goes on the Apitz’s property but presumably it goes along an outside edge and does not split the Apitz property down the middle.)

In my view, that seems not very neighborly of Hopkins but what do I know?


Cases of claimed egregious mismatches between proposed expert testimony, the appropriate subjects to be argued and decided in a lawsuit, and proposed intended expert witnesses are endemic in our legal system.

Of course, you’ve got your quacks — the pretend experts. Excluding them is relatively uncontroversial (although we will not all agree about certain disciplines and whether experts in the disciplines have evidentiary value or are quacks across the board (homeopathy, acupuncturists, hand-writing analysts, say)).

Then you have your “expert judge” or “expert jury” experts — that is, purported experts offered to testify as to the law (that would be the “expert judge”) or, without any truly specialized knowledge, training, or expertise, an expert offered to testify as a fact-finder (the “expert jury”). These are a subtler variant of “quack experts” because they are offered to simply tell the judge or jury what to do.

These are easy cases to exclude proposed experts. But how about, say, a proposed expert in “the conduct of executives in the U.S. medical device or healthcare business vis-à-vis confidential job searching“?


Eggs in CartonCan 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.