Boxing Boxers
George Bellows, Dempsey v. Firpo, 1924

Congratulations to Minneapolis lawyer, Joshua Williams, for a $500,000 jury verdict for the plaintiff in Daniel v. City of Minneapolis.

Williams had to take the case up to the Minnesota Supreme Court and back down again before getting his client his day in court. (The issue that went up to the Minnesota Supreme Court was the reconciliation (or “exclusivity”) of the workers’ compensation statute and the Minnesota human rights act.) (“The broad remedies provided by the human rights act, including monetary damages, equitable relief, and civil penalties, further show that the personal and societal injuries caused by discrimination are different in
nature and scope from the physical and mental work injuries that are compensable under the workers’ compensation act.”)

The facts of the case are quite pedestrian, the issue being whether the City discriminated against Mr. Daniel by not allowing him to wear doctor-prescribed tennis shoes, which Mr. Daniel had been prescribed for pain from an injured ankle.

Is it just us, or do others think it strange that the City of Minneapolis thought it appropriate to invest such time, energy, and resources to fight against one injured firefighter’s desire to wear doctor-prescribed tennis shoes because of his ankle injury?

Long time readers of Minnesota Litigator will know that lawyers use the acronym SOL to mean “statute of limitation” but also refer to an alternative meaning: “sh*t out of luck.”

This week, the Minnesota Court of Appeals affirmed a district court ruling that the plaintiff in a sexual harassment claim was barred by the statute of limitations. It’s a short one by Minnesota standards: one year. On the other hand, sexual harassment (unlike, say, legal malpractice) happens when it happens. Presumably a sexual harassment plaintiff is aware of the harassment in real time. It is not, it cannot be, the “ticking time-bomb” scenario where wrong-doing may lie unseen for years. So maybe the short statute of limitations is not such an onerous or unfair requirement of sexual harassment plaintiffs.

Plaintiff Meagan Abel ended her practicum at Abbott Northwestern Hospital (as part of her doctoral program at St. Mary’s University) on May 27, 2016 and then brought a filed a charge of discrimination against Allina (but not St. Mary’s, a co-defendant) with the Minnesota Department of Human Rights on May 26, 2017. That’s within one year, right?

No. Not right.

The district court also threw out (and the court of appeals affirmed) Plaintiff’s negligence case against two institutions, finding that the claim was time-barred because the one-year clock does not start when one leaves the job. It starts “within one year after the occurrence of the practice.” Minn. Stat. § 363A.28, subd. 3(a). The “occurence of the practice” did not happen on Plaintiff Abel’s last day of work (see here at p. 15).

Also, the court of appeals found that the Minnesota Human Rights Act (“MHRA”) provided the exclusive remedy and that Plaintiff failed to provide any basis that the institutions “owed a common-law duty to protect her from third-party conduct” (here at p. 16).

Abel argues for the first time on appeal that her negligence claim is sufficient “at least under theories of negligent supervision and negligent retention.” Abel did not plead these claims in her complaint and did not argue to the district court that her negligence claim should be allowed to proceed under these theories in opposing Allina’s motion to dismiss. And the district court did not address these theories in its order. As such, they are forfeited.

Finally, the decision is noteworthy for the dissent of Sr. Judge Roger M. Klaphake. (It is here at p. 18 of the PDF.) It seems to us that Judge Klaphake’s position was strongly influenced by the egregious allegations in the case and the concern that the Plaintiff, as a result of this decision, will have no remedy (subject to reversal by the Minnesota Supreme Court, of course, which is possible).

This case offers a painful practice pointer as to the timing of a complaint for sexual harassment.

Photo by Molly Steenson

Photo by Molly Steenson

Here we go again (not).

2019 has been an anomaly for LEVENTHAL pllc as we have had two jury trials. We have had three trials disappear the day before the scheduled trials (one arbitration and two trials in state district court, to be precise).

In the first instance, we settled on day one of trial. In the second instance, an arbitration, the opposing party folded and settled the Friday before an arbitration scheduled for the following Monday.

This time, the jury trial, scheduled to start today, was “continued” (which is legalese for its opposite, i.e., postponed) because one of the two defendants announced on Monday that it is filing for bankruptcy (triggering the bankruptcy code’s “automatic stay“).

(Whether the filing of bankruptcy of one defendant should stay (legalese for “stop”) the lawsuit against a co-defendant is complex legal question beyond the scope of this post. Broadly speaking, the answer is “no” but, in this case, to our disappointment, the court ruled otherwise.)

As most civil litigators know, it is common to go several years without a trial.

Query: when a potential client is looking for a lawyer, how much weight should the client put on whether the lawyer has tried any, a few, or many cases to a jury (or a judge or an arbitrator)?

In our view, the answer is (of course) (because lawyers are lawyers): “It depends.”

Since 99% of cases settle before trial, choosing one’s lawyer based on the outlier scenario seems misguided. On the other hand, the credible threat of a legal thrashing clearly adds settlement value to many legal disputes. Therefore, at least some trial experience, preferably recent trial experience, presumably is helpful in credibly communicating to the adverse party (and counsel) that one is ready to take the dispute to trial.

Contact LEVENTHAL pllc if you want to hire an experienced and relatively inexpensive Minnesota civil litigator and trial lawyer with recent trial experience.

Update (September 30, 2019):  What a relief that the Minnesota Supreme Court has tackled a complicated question, described below and, we hope, has resolved it.

In a nutshell, the question the Minnesota Supreme Court had to tackle was reconciling two analyses to be used to determine the “accrual date” for certain kinds of legal claims (professional negligence, more or less): the so-called “some damage” rule and the “point of no return” rule.

Perhaps in another forum when we have more time, we can dissect the Court’s analyses (the majority opinion and the dissent) and debate whether the majority or the dissent (here at p. 19 of the PDF) is more persuasive. We would have preferred that the Court expressly overrule Antone v. Mirviss, a decision we have criticized repeatedly. But the dissenters in Hansen suggest that Hansen decision implicitly did overrule Antone and that’s a start.

Update (October 15, 2018): Lawyers know that something as seemingly simple as measuring a six-year period of time can be an enormous challenge. Six years, starting when?

The thread of posts below highlight that this issue has bedeviled Minnesota litigants and courts in the context of legal malpractice for more than 12 years now (since Antone v. Mirviss).

And we are still wrestling with this incredibly simple but also maddeningly complex question of when to start the six-year clock.

Recently, the Minnesota Supreme Court agreed to accept a petition for review in Hansen v. U.S. Bank, not a legal malpractice case but, closely related, a claim for breach of fiduciary duty.

To start the six-year timer, our courts are supposed to apply two distinct concepts, the “some damage” rule and the “point of no return” rule. But, in many cases, these two different rules point to two different start-times and, sometimes, sharply different start-times.

The facts of Hansen v. U.S. Bank are straight-forward and appear to highlight the problem: Mr. Robert Hansen and his brother entered into a deal to sell property to a buyer, CFP. Between the purchase agreement in 2009 and the closing in 2010, Mr. Robert Hansen died, and U.S. Bank took his place in the transaction as the personal representative of his estate.

Part of the terms of the sale provided that there should have been “due diligence” by an independent CPA to certify the buyer’s financial forecasts (since the sale would entail payments to the sellers made over time). U.S. Bank allegedly failed to ensure that this term was met.

If you’re still reading this admittedly dry reading, you know where this is going.

The deal closed. The buyer eventually defaulted on the note.

Making matters worse in terms of U.S. Bank’s alleged culpability, at the time of the closing, two forecasts allegedly had been prepared by others and both forecasted that revenue projections were overstated and incorrectly or erroneously relied upon unsupported revenue commitments and sources. In other words, the allegation is that if U.S. Bank had obtained the independent CPA report which the seller had negotiated for in connection with the property sale, U.S. Bank would have identified the buyer’s lack of financial backing and halted what, in hindsight, was a bad deal.

Mr. Hansen’s heirs sued U.S. Bank for its alleged breach of fiduciary duty owed to the estate in the performance of its obligations.

The date of the closing was presumably “the point of no return.”

But, Hansen’s lawyers argue, “some damage,” did not occur until later, when the buyer defaulted on the note.

The root problem, here, in our view (as stated bluntly below) is the Antone v. Mirviss case, which introduced the concept of the “point of no return” along with the “some damage” rule. Counsel for Hansen makes compelling arguments for distinguishing the Antone v. Mirviss facts (see here at pages 5-6) in the Hansen case.

U.S. Bank’s counsel opposed the petition for Supreme Court review, essentially arguing that the Antone v. Mirviss rule is clea and that the Court of Appeals properly applied the rule. “There is nothing to see here.”

Some on the Minnesota Supreme Court apparently feel otherwise and we hope to get some harmonization of these two critical concepts for fixing the start-time of professional negligence/breach of fiduciary duty claims under Minnesota law.

Update (February 8, 2018) (under the headline “A Partial (And Unsatisfactory) Answer to the Puzzle of the “Accrual Date” in Cases of Legal Malpractice”): As discussed below and in other posts, the statute of limitations for legal malpractice cases in Minnesota is six years but “when the clock starts” — the starting time is for the six-year statute — is often complicated.

On one extreme, some states have the so-called “occurrence” rule (when the negligent services were provided). At the other extreme, some states have the “discovery” rule (when the client knew or should have known about the negligent services). Minnesota rejects both of these rules and seeks a middle road. (See the linked decision at p. 18.) In Antone v. Mirviss, the Minnesota Supreme Court adopted the “some damage” rule (a “cause of action accrues when ‘some’ damage has occurred as a result of the alleged malpractice,” with “some damage” defined as “any compensable damage”).

Antone v. Mirviss involved a botched antenuptial agreement and the Minnesota Supreme Court ruled that the six-year clock started on Mr. Atone’s wedding day. In our view, some might reasonably ask what damage, exactly, did Mr. Antone suffer on his wedding day?

It seems the Court has a related but unstated rule: the “point of no return” rule. That is, “some damage” occurred to Mr. Antone at the “point of no return” — when Mr. Antone was “exposed to a claim upon a portion of any appreciation of his premarital property.” So Mr. Antone did not literally suffer “some damage” (or any damage) on his wedding day due to the botched antenuptial agreement. He was simply “locked in” by the bad lawyering as of that date. As of the day of his marriage, he definitively lost what he had gone to his lawyer to obtain — protection of assets that he would otherwise have kept if the lawyer had done a decent job on the antenuptial agreement.

The Minnesota Supreme Court did not overrule Antone this week in Frederick v. Wallerich, as we have advocated. Rather, it distinguished Antone over a dissent by two justices, Chief Justice Gildea and Justice Anderson. They argued that Antone’s rule applied and barred Mr. Frederick’s claim. In the Frederick case, however, the plaintiff returned to the lawyer after his marriage for legal services and the Supreme Court, in a majority opinion written by Justice Hudson, ruled that these later representations were within the six-year statute and could be the premise of Mr. Frederick’s legal malpractice claim.

Congratulations to plaintiff’s counsel, Patrick O’Neill!

But we will still have to grapple with the “some damage/point of no return rule,” which, in our view, is unfortunate. The rule is both imprecise and arbitrary. The discovery rule, in contrast, which has been the law in other states for more than forty years, is neither imprecise nor arbitrary. Other states that apply the discovery rule seem to be perfectly able to handle the supposed “open-ended liability” that Justice Gildea’s dissent seems concerned about. (Consider: CaliforniaTennessee. Hawai’i. Texas. Maryland. New Jersey, to name a few.))

Update (March 10, 2017) (under the headline: Hope on the Horizon for Minnesota Legal Malpractice Plaintiffs?): Excellent argument of the lawsuit, discussed below, earlier this week before the Minnesota Supreme Court.

The concerns of the various justices of the Minnesota Supreme Court are clear.

On the one hand, if Anton v. Mirviss is overruled, what is the limiting principle? How long, effectively, would the statute of limitation be for legal malpractice? Would the rule be limited to legal malpractice cases? If not, why not?

On the other hand, many of the justices probed whether a lawyer’s second-in-time bad legal advice can really be immune from a negligence claim if the initial bad legal advice is outside the statute of limitation. Justice Lillehaug posed this scenario repeatedly with slight alterations. (What if the second-in-time lawyer is a different lawyer? A different lawyer at the same law firm? A doctor giving bad medical care following up on the doctor’s earlier negligent care?)

We’ll see where the case ends up and we will only point out that, as a practical matter, the law as set out in Anton v. Mirviss, the so-called “some damage rule,” leaves Minnesota clients with no recourse for legal malpractice in many circumstances when they would have absolutely no realistic chance of detecting it within the statute of limitations.

So long as the fuse is long enough on the bomb, the bomber/lawyer not only gets away scot-free with the bombing and gets to keep the money billed for it too!

Original Post (November 4, 2016): Imagine that you hire a lawyer to draw you up a “pre-nup” (also known as an “ante-nuptial agreement”) before your marriage. Seven years later, your marriage ends in divorce and the pre-nup is thrown out of court in the divorce proceeding because your lawyer incompetently drafted it in the first place.

Under existing Minnesota law, a malpractice claim against the bad lawyer would be barred by the six-year statute of limitations. Antone v. Mirviss.

I believe that the Antone decision is one of the least defensible appellate decisions I have ever read. I find it staggeringly unfair and nonsensical. Aside from lawyers who might think that any decision that favors them is, by definition, a good decision, I have never heard any argument in favor of the result in Antone. Justice Hanson’s dissent in Antone (joined by Justices Page and Meyer) should have been the majority decision rather than the dissent.

What are clients supposed to do to avoid the risk of bad legal advice and the risk of a bar to any remedy when, over time, they are held to have violated the law or lost a legal right based on bad legal advice?

Maybe Mr. Antone should have gotten divorced sooner? Maybe Mr. Antone and other Minnesotans hiring lawyers should hire two or three at a time to insure against getting bad advice (since they might not be able to rely on a claim for professional malpractice when they suffer later harm)? Should Mr. Antone have gone back to his lawyer every five years so the lawyer could re-advise him on the validity of the lawyer’s original legal work?

Or, here’s another solution: OVER-RULE ANTONE v. MIRVISS.

I hope that help is on the way. This past week the Minnesota Supreme Court granted a petition for review in a case that could put the Antone decision in the cross-hairs: Frederick v. Wallerich, et al. (Linked here is the petition for Minnesota Supreme Court review and here is the opposition to the petition.)

The facts in Frederick’s case seem even stronger than those in the Antone case. After Frederick’s marriage, he repeatedly checked in with his lawyer as to the validity of the pre-nup (which is not a very good sign for Frederick’s marriage, I have to assume). Nevertheless, based on Antone, the trial court dismissed Frederick’s lawsuit against his lawyer as time-barred. The Minnesota Court of Appeals affirmed.

Many might challenge my advocacy on this issue, pointing out that I have brought several plaintiff’s side legal malpractice cases (and have several pending). I concede that I have a bias. On the other hand, I have never heard anyone articulate a persuasive argument in favor of the Antone decision and I am still waiting.

The obvious argument in support of the result in Antone is that, in theory, a lawyer could provide services in Year #1 and client could sustain an injury in Year #51, leading the lawyer to face liability for advice given 50 years earlier even when there is a six-year statute of limitation.

I think responses to that argument include: (1) These were not the facts in Antone nor the facts in Frederick. Such a scenario, should it ever be confronted by a court, should be evaluated at that time. It should not provide the rationale to throw out cases that are quite distinguishable; and (2) Under certain circumstances, a lawyer can give bad advice or faulty legal services with actual knowledge that the results of such bad advice or faulty legal services will not likely come to fruition within six years. Imagine, for example, a young person hiring an incompetent lawyer to draft the young person’s will (or the set-up of a trust, as in this Montana case) In that scenario, do Minnesota courts really think that the Minnesota legislature intended to bar Minnesota citizens claims for malpractice because of the general six-year statute of limitation for tort claims? How is that fair or just?

Photo by Molly Steenson

Photo by Molly Steenson

Talk amongst yourselves…. I’ll be back…

In the old days, spoliation was pretty straight-forward. Back in the day, spoliation of tangible objects might have been more difficult to detect (no “digital bread crumbs”) but, once detected, it was pretty easy to establish. Documents (or buildings, machine parts, or whatever form of evidence) existed and then disappeared…Tangible things were altered or destroyed.

Digital spoliation, on the other hand, is far more complicated.

This challenge is nicely illustrated in the lawsuit Rust Consulting (“Rust”) v. Schneider Wallace Cottrell Konecky Wotkyns, LLP (“SWCKW”), about which we’ve written previously.

According to SWCKW, Rust “destroyed” an “electronic portal system.”

Rust’s response appears to be that it the “electronic portal system” was just that, a portal — that is, a metaphorical doorway, gate, or other entrance –software code simply providing access or connections to other data, all of which was preserved and produced to SWCKW (“Rust’s decision to shut down the Portal was not, in fact, a decision to destroy evidence because all of the evidence was preserved, archived, and subsequently produced to Schneider Wallace in the course of this litigation” (here at p. 19)).

However, it seems that the portal itself is relevant to the case. There is a question about whether the portal ever worked. (See here at p. 21)

So, maybe the spoliation question in the case is not obvious or easily answered?

It seems that the portal in this case was “shut down” and “archived.” In real life, such terms would seem to suggest the evidence was preserved and retrievable, but, in the digital world maybe that is not to be the case. (See here at p. 7) (“Q. The portal, before we go on here, the portal is shut down. Is that the right word for it? A. Archived, correct, shut down….[I]t’s shut down. I don’t think it can be retrieved”).

What is archived if it is irretrievable?

Is this some form of zen koan (a paradoxical anecdote or riddle, used in Zen Buddhism to demonstrate the inadequacy of logical reasoning and to provoke enlightenment)?

Longtime Minnesota Litigator readers are familiar with our TAAFOMFT Series (“These are a few of my favorite things” (NOT)) and, in particular, our passion and appreciation (NOT) of e-discovery disputes and this, of course, is simply another festering limb of the fantastic beast. We look forward to seeing how U.S. Mag. Judge Tony N. Leung (D. Minn.) slays the zombie this time around…

R.I.P. Law Firms as Distinct from Other American Businesses

The business of law has never been as cut-throat and dollar-driven as it is today.

Take Exhibit A: DeWitt LLP v. Anderson.

Apparently, in late 2015, the DeWitt law firm, with offices in Minneapolis, Madison, Wisconsin, and Brookfield, Wisconsin hired a recruiting firm and poached attorney Susan L. Anderson from the Minneapolis law firm of “Messerli & Kremer” [sic (see here at Para. 7)] (Messerli Kramer). Ms. Anderson appears to have had a trusts and estates litigation practice that presumably fit well into DeWitt’s business model, or so DeWitt had to have once thought.

What stands out from DeWitt’s complaint in its lawsuit against Ms. Anderson, however, is that it seems DeWitt did not exactly propose paying Ms. Anderson, so much as it proposed charging Ms. Anderson. That is, it appears that, under the DeWitt agreement, Ms. Anderson would receive a “monthly draw” of $6,666.67 ($80,000/year) which she would have to repay out of revenue that she generated for the DeWitt firm. That would be Ms. Anderson’s overhead, after which, it seems, she stood to make money for herself.

Somehow, though, over her fourteen months at DeWitt, according to DeWitt, Ms. Anderson’s “account deficit” owed to DeWitt ballooned to $169,469 (see here at Para. 13) (subsequently reduced to $157,773 from post-departure revenue).

It is hard to understand how Ms. Anderson’s debt to DeWitt exceeded the amount of her draws, which it seems to have done. (We speculate there were other benefits, like insurance, a marketing budget, etc., tacked on.)

In any event, in our view, what is worth your attention is how this lawsuit reflects the dark underbelly of 21st century law firm business.

Historically, law firms and lawyers were perceived of as above the fray, somehow outside or beyond the bottom-line, sharp-elbowed brawl of the free market. Of course, this special exemption befits the selling of a product (legal services) premised on (or at least steeped in) integrity, honesty, discretion, and fiduciary duties. And, along the same lines, we have a hazy (maybe distorted) impression of by-gone days where law firms and lawyers stood together and stuck together through thick and thin and so on. Those days are clearly gone and there is no reason to believe they are ever coming back.

A red car and one black crash in an accident

A lot of very smart people have been puzzling and arguing over the high cost of civil litigation in the United States for at least 50 years.

Is it because there is too much litigation (driving up the price)? Is it caused by the distortive role of insurance, which is in play (and, in fact, is central) in almost all U.S. civil litigation? (How insurance companies contribute to the high cost of U.S. civil litigation is a subject for another day.) Is the high cost of U.S. civil litigation caused by “frivolous litigation,” in particular, in which opportunists supposedly exploit our dispute resolution system (that is, our courts) to blackmail defendants? Is it the wide breadth of “discovery” that U.S. courts give litigants, as compared to courts in other countries?

“A Tough Knot to Crack” (photo by Jay Fanelli)

We answer, “Yes.” It is all these things and then some. It is a tough knot to crack.

Imagine, if you will, a truck driver, driving through a stop sign, colliding with a driver on the cross-street (who had no stop sign). Imagine that the “cross-street driver” was not speeding at the time.

In a perfect world, this would not be a lawsuit at all, let alone an expensive one. The truck driver would admit his negligence. (Going through a stop sign without stopping would seem to be negligent, no?) The cross-street driver would not overreach on his damages. Money would change hands.

Not so fast. In Simondet v. Enga, with these facts, had to go all the way through jury trial. And it might have to go to a jury twice…

In the first jury trial, the truck driver raised the “emergency rule” negligence defense.

One suddenly confronted by a peril, through no fault of his own, who, in the attempt to escape, does not choose the best or safest way, should not be held negligent because of such choice, unless it was so hazardous that the ordinarily prudent person would not have made it under similar conditions.

Simondet v. Enga at p. 6.

What was the truck driver’s supposed emergency? He got something in his eye.

To our surprise, the judge accepted this as “an emergency” sufficient to put give instructions on this defense to the jury and, to our surprise, the jury bought it. The Court of Appeals reversed and remanded the case for a new trial.

Do we blame the trial court judge? Do we blame the defense lawyers for making this stretch of an argument? Do we blame the common law system, which makes rules and then exceptions to the rules so the rules seem malleable and manipulable?

Again, we answer, “Yes.”

Mike Rothman

The career of former Commissioner of the Minnesota Department of Commerce is an inspiring 21st century story. Mike has enjoyed decades of success in the public and the private sectors and now is running his own law firm. (You can find a chronology of his career, with its many highlights, here, and information about Rothman Law & Consulting here.)

As Mike mentions below, 21st century technology enables this career path as never before. That’s a good thing — for Mike, for consumers of legal services, and for all Minnesotans.

But, as Mike also mentions below, it seems as if the allure and appeal of public service and civic involvement might be waning these days. That’s a bad thing. Here’s to hoping that the virtue of public service and sacrifice is evermore appreciated and celebrated. Mike’s work should inspire us all.

Minnesota Litigator (“ML”): Mike Rothman, former Commissioner of the Minnesota Department of Commerce and a candidate for the Minnesota Attorney General back in 2018, you are now your own law firm. Tell Minnesota Litigator readers what that’s like, what your practice is like, and about setting up your own law firm.

Mike Rothman: The law firm is terrific. It’s successful. Going back to the law practice has been enjoyable after being the Commissioner of Commerce and then running for Attorney General. It’s about helping people and making sure that they’re in a position to assert their rights and fight for them. The practice is broad.

I’ve been Commerce Commissioner, and so -the practice is about commerce and regulation, helping both businesses and consumers navigate those challenges, whether it’s litigation, or a regulatory problem, and transactional work. So yes, I’m very happy about how it’s been going, looking forward to helping more clients in the future, reaching out to other lawyers, and building a strong network.

ML: As the Commissioner of Commerce, how many people reported to you?

Mike Rothman:  It varied, but it was about 330 employees. The department oversaw 20 or more industries. It was insurance, securities, banking, real estate, and included the energy portion for the administration. And that included everything from renewable energy, to oversight of the utilities across the state of Minnesota.

ML: And in that capacity as the Commissioner of Commerce, I assume any litigation that the commissioner had would have been handled by the Attorney General’s office? Is that right?

Mike Rothman: We had representation from the Attorney General’s office. We also had lawyers on staff. We had developed a small general counsel’s office. If we were sued or to be sued, then the Attorney General does represent the department and any of the agencies in the state.

A good example of that was the North Dakota lawsuit against Minnesota. It was an important case. The critical issue was whether Minnesota’s moratorium on coal was, or could be, upheld under the Commerce Clause of the U.S. Constitution against a challenge by the state of North Dakota.

North Dakota sued Minnesota. I was named as a defendant. Our staff were the most knowledgeable about coal and energy. But as to the legal issue under the Commerce Clause, it was fascinating as to whether Minnesota could stand strong and prevent the use of coal in our state.

And it came down to, in that case, how well the statute had been written by the legislature. If it had been tweaked a little bit here or there, it might’ve survived, but the Eighth Circuit U.S. Court of Appeals three-judge panel was split. The decision had various interpretations of the law.

Sometimes you wonder if you get a different panel, whether that would have tilted it one way or the other.

But in this case, one interesting aspect was that part of the law was moot. Minnesota was already moving towards renewable energy. We’d been working with Xcel Energy and other utilities around the state to move away from coal.

So we had already accomplished a lot, and the transition will happen anyway, regardless of the decision. Even though Minnesota lost in that case, it is something that we’re going to achieve, regardless. It’ll take two or three decades, but it’ll happen.

ML: You bring up an issue related to the environment. You have a very long history of Democratic party activism. Is that fair to say?

Mike Rothman: Yes.

ML: And are you still active?

Mike Rothman: I am, but I’ve been focused more on practicing law. I am active in the sense that I still attend DFL events, I still keep friendships there. And on top of that, part of my practice was, and is, campaign and election law. For example, I did work on the recounts: the Dayton recount, the Franken recount, and then one that proceeded them was the Melanie Ford recount up in St. Louis County. So campaign and election law is part of my practice.

ML: You mentioned your practice involves litigation, regulatory work, and transactional work. And I’m wondering if you could give our readers a sense of what kind of work it is within those categories.

Mike Rothman: In litigation, I have been doing some expert witness work, which has been terrific. I have been retained for my knowledge and expertise that comes with having been Commissioner of Commerce for about eight years, overseeing different industries, and I have that expertise to address a variety of issues that come up in litigation.

One case involved questions related to licensure in connection with a particular real-estate transaction. Another case is a plaintiffs’ class action involving a matter that we investigated at the Department of Commerce and worked on with the United States Attorney. We put a fellow, an insurance agent, behind bars for ripping off senior citizens, and I have been retained in a civil lawsuit related to that.

In addition to the expert work, I represent people and businesses in standard litigation, and commercial litigation.

And I have also been retained for regulatory work — any issue that could come up with regulation at the Department of Commerce or other regulators. That would include either a licensing matter, or a dispute, or an investigation, or anything that would relate to energy, for example.

On the transactional or non-litigation side, there are things like working on business disputes in terms of books of business, separation agreements, everything that goes along with that as they continue their businesses.

And, at the same time, I am building a network around me to be able to facilitate some of the complex issues that could come up if necessary. And I have those affiliations, including yourself, to be able to do that.

ML: Any surprises as you have embarked on really a very different latest chapter in your career from your past experience, both as the Commissioner of the Department of Commerce and working at larger firms before that?

Mike Rothman: Well, let me talk about the areas of practice, and then the business of law practice. On the areas of practices, the surprise for me was being asked to be an expert witness in the first case and then another case, and that that would be a good area for me to continue to practice.

I also have been pleased, I guess, not necessarily surprised, but pleased that a lot of the business I’ve been getting is organic based on just people knowing I’m out there and asking me to do the work for them. And I’ve become quite busy.

And then that means doing the things I need to do to continue business development, marketing, and all. So that goes back to the differences between working at a big law firm and the small law firm.

As part of my law practice before being the Commissioner, I was pretty focused on business development. I always believed that your success relied on getting out there, getting your own clients, keeping your own clients, but then also making sure that you were going to have a few in the door as you kept going. So it was critical to do that, and you also have to bill the time and all that. The marketing is not billable, but you have to do it.

As a solo practitioner, the other piece of it is putting together the company, the business side, putting together the administrative side of it, and then the accounting and the software. The fascinating part is that, and I guess this is another surprise, is that the legal management software, is very sophisticated now and can support a solo practice much better than it used to. In addition, you have the … I would say it’s the cloud…we’ve come to a place where you don’t need to have $10,000-30,000 worth of computer equipment in your closet as a solo practitioner. You can set it up and turn it on, and it’s right there for you.

You can now handle a large number of documents. You can get the bills out as quickly as anybody else. So that’s been good.

The only thing is, unlike working at a large firm downtown, you can’t just knock on the next door and say, “Hey, would you like to go to lunch?” You have to call up, schedule lunch, do those kinds of things, so that you’re out there networking.

The great thing is that it’s been a success, and it will keep growing.

ML: You’ve been a lawyer for something close to 30 years, I’m guessing. Putting aside the dramatic technological changes during your decades of practice, which everybody is very aware of, do you think that practice of law has changed in other ways?

Mike Rothman: I think in many ways, and in various ways, it has changed. For example, when I clerked for Opperman, Heins and Paquin–and if you remember back then, the West Publishing Company had the West Keynote System, which was incredibly helpful for research–compare that to today where you can go on Google Scholar and pull up those cases. It’s more accessible. The ability to do that research is online and all that, which is quite a comparison to 30 years ago.

Moving from changes in legal research, consider the law firm marketplace. A few decades ago, Minnesota’s firms, the biggest ones and the medium sized ones, were the big market players for Minnesota.

And maybe Dorsey would be compared with some of the firms out of Chicago or something like that. But were they a national firm? They became national. That development has occurred.

And now compare that to today, where national firms have merged with or bought out some of those firms, and the firm names and firm headquarters have changed, making management of the large Minnesota law firms not necessarily locally based, meaning they’re not here in Minnesota. These firms may now be managed from Texas, Washington, D.C., Ohio, Missouri, California, etc. So that can make it difficult if you’re in those firms in terms of competition to become partner or competition for, and fighting over, salary compensation.

Which brings me to this point, which is that in looking at all of these things, I felt very comfortable opening my own law practice, because I felt I had enough experience and name recognition with my ability to market to bring in enough work on my own, but also to manage myself, to be my own boss, if you will. And then within my own family, there’s examples of solo practitioners. So it just made a lot of sense to move out on my own at this point.

ML: You mentioned you took a year between college and law school. Sometimes those little periods of time can be very interesting and valuable detours for the rest of your life. What did you do with that year?

Mike Rothman: Well, first of all, along with some other Carleton College graduates from my year, I rented a house in Minneapolis. We worked that summer in a variety of different places. I worked at a class action law firm. There were two or three of us that were working on a class settlement claims-administration project. It was millions of dollars in a railroad case that went to injured workers. We spent the summer taking all this class action money, and then figuring out how to distribute it, which was a great experience.

I also worked at a hotel as a front desk clerk. That was a fascinating experience. It was downtown Minneapolis. Some would say it was on the outskirts. This was on 10th Avenue and Hennepin. So there would be a number of characters that would show up from time to time. But the two other hotel clerks that I worked with were a short story writer­–whose mentor was one of the famous short story writers–and the second guy, older than us, was a former Navy jet pilot.

Working with these two guys was really a lot of fun. We got into conversations about short stories and then about the experience of life and having flown jets.

On top of that, it was just a wonderful time just to “cool our jets” in a way, if you will, to hang out with my friends and recent graduates, making that transition from Carleton into our next phases, which for me was law school. It was an interesting, fascinating, and fun time of my life.

ML: Shifting gears back to your time as the Commissioner of Minnesota’s Department of Commerce, as a commissioner of this large organization, did you feel you were able to actually effect change? Were there particular things where you said, “These are my priorities, and this is what I’m going to do?”

Mike Rothman: Yes, there were. My focus was to strengthen consumer protection for all Minnesotans. The Department of Commerce on the financial, regulatory side, at the heart of it, is all about protecting consumers in the marketplace, whether that’s protecting them from insolvency, from a bank, credit union, or insurance company, to a bad market practice. The department needed to be renovated, needed to be improved and strengthened for consumer protection. And that piece of it had been lost for many, many years. So my primary goal as I started off was to turn that around and to reestablish the department as a strong consumer protection agency, and I’m very proud of doing that.

And there are just hundreds of instances in which we worked very hard to protect Minnesota consumers. Part of that is protecting senior citizens from financial abuse. And I made that a very high priority. A lot of seniors are, whether it’s from the internet, or from an advisor, or even from a family member, subject to financial abuse.

The other area that I made a top priority was renewable and clean energy, the clean energy economy for Minnesota. And on effecting change for that, we implemented during my time several major important things to continue Minnesota’s path, and to strengthen it towards, a clean energy environment. One was the solar energy standard. We instituted a solar energy standard that created an environment to develop solar farms across Minnesota, and to improve them for both residential and commercial applications.

From the regulatory side, we were able to establish policies to put Minnesota on the forefront of climate change regulation. And that meant moving away from coal and more towards clean energy. During the time that I was Commissioner of Commerce, we moved our total energy consumption significantly towards renewable energy and away from coal, with the prospect and with policies in place to move Minnesota to between 50% and 85% renewable energy over the next 10 to 20 years. And with those in place, I feel it’s been a strong legacy to leave behind.

Another piece that was very, I’d say contentious, but difficult and important for people, was to save the individual health insurance marketplace from collapse. And I worked very hard to make sure that never happened and to make sure that those people didn’t lose their health insurance. The numbers we were looking at are hundreds of thousands of people whose health depends upon that marketplace.

So those are some of the major highlights. There are a lot of other great parts of the job for me personally.

I was the president of the North American Securities Administrators Association, which is the state and Canadian regulators that work in partnership with the S.E.C. [ed.  note: the Securities Exchange Commission] to oversee all of the securities marketplaces throughout the United States. Within that context, I focused on cybersecurity and working with the Federal Reserve and others. I was appointed to a U.S. Treasury Committee, where we focused on United States infrastructure around the country to protect it from cybersecurity attacks.

I loved the job. Every day was terrific. Working in the environmental sub-cabinet with other agencies to improve Minnesota’s environment, to the health sub-cabinet to improve Minnesota’s health care system, and all of that, was just a real great opportunity.

ML: And it leads me to wonder whether you miss being in the public sector.

Mike Rothman: I enjoyed being in the public sector to help make a difference for people. The position of commissioner was a great opportunity to do that. I do miss being in the public sector. I think more and more people should believe, or we should live in an environment where it’s an honor and a privilege to serve the public. Now, many people do not view public service in that way, and it’s unfortunate because we need good public servants to help all of us. That said, I’m also enjoying the opportunity to spend more time with my family. The kids are getting older. Our daughter is a sophomore in college. We have two boys, one’s a junior and one’s a ninth grader. It’s been a really nice time just to be with them as they grow up, and then to have the opportunity to start my own law firm.

ML: What do you put the odds at that you might go back into the public sector in the coming years?

Mike Rothman: I always say, “Keep the door open for the possibility.” You never know what could happen. I believe that if the right opportunity comes along, anyone who has that opportunity should think carefully and seriously about it. But I think I’ll be at a place where the question will be, “Should I continue to practice law, focus on the family?” And I believe that at this point in my life it’s a higher priority for us as a family. And whether there is the opportunity in the future remains to be seen. But again, I just come back to we’ll just keep the door open.

ML: If you could change anything about the Department of Commerce, what would it be?

Mike Rothman: While I was Commissioner, I made a lot of the changes that were necessary to make it a stronger department. For example, I reorganized to create an insurance division that the department didn’t have before. Ensuring that the department has the resources it needs, I think, would be one of the number one priorities. The second is to make sure that the department continues to push for some very important consumer protections. Every year I’d go to Legislature to request them. I think in a variety of areas, the law could be strengthened to help consumers.

One law that did pass that I pushed for, and it’s sort of a legacy but it passed after I left Commissioner, was the Safe Seniors Financial Protection Act protecting senior citizens from financial abuse. And then moving over onto the energy side of it, the department … and broadening it out, I think the state of Minnesota needs to be focused on a 100% clean energy economy, and then get there as fast as possible.

Minnesota has been a leader around the country, and among the States. And in the environment that we’re in right now, I think a clean energy economy is one of the things that is absolutely critical. Now the legislature, the governor, have been looking at these proposals. And I think that that’s a critical fight for Minnesota to solve, but also to pass something that gets to that 100% clean energy.

The problem isn’t just Minnesota. It’s across the country. And we must get to a place where we as a country, and for the rest of the globe, are leaders in the climate change, clean energy space. And it’s not just clean energy. There are transportation issues. There are a whole variety of things that we have to do.

ML: If you were standing here on a soapbox and could address Minnesota lawyers and judges, would you have anything to say to them?

Mike Rothman: I have a lot of thoughts. The legal profession is rewarding and it’s very important for all of us, whether it’s in government or in the private sector, to really have a strong system. Underlying some of the challenges today is the lack of trust in our institutions. And I think we need to continue to be good leaders to maintain a strong legal system, to do what we can for the next generation, and to leave behind a good legacy for everybody.

ML: Thank you.

[Previous Minnesota Litigator Profiles of Minnesota litigators:   Kevin Dunlevy, Minnesota real property authority,  Brent Primus, a 40+ year Minnesota litigator with decades of experience in cargo and transportation law,  Emily McNee, employer-side employment litigator, Anna Voss,  Civil Chief of the United States Attorney’s Office, Kenneth U. Udoibok, fighting for justice from Nigeria to Minnesota and beyond, Bill Tilton, 40 year St. Paul civil rights lawyer, Kristine Kubes, advisor and litigator for construction professionals, Rachhana Srey, plaintiff’s side wage-and-hour litigator, Eric Nilsson, banking/lending litigation, Roshan Rajkumar, products liability defense, Jerry Alcazar,  products liability defense, Liz Kramer, Arbitration Maven/Author of Arbitration NationTim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice (and later appointed to the Ramsey County District Court bench),Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“,  Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator,  John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer,Karin Ciano, free-lance “federal sherpa,” Jerry Alcazar, products liability defense.] [For Minnesota Litigator profiles of judges, see: Retired U.S. Magistrate Judge Jeffrey J. Keyes, Hennepin County Judge SusanRobinerRetired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief Judge Peter Cahill, Hennepin County Judge Thomas Fraser.]

There is a widespread consensus among civil litigators that plaintiffs generally prefer state court and defendants prefer federal court. However, in our experience, it is always prudent to question all “widespread consensuses,” by which we simply mean it is always good to think independently and critically rather than blindly accepting “common sense” or “consensus.”

Having said that, the attached dissolution by a federal judge of a state court judge’s preliminary injunction supports the common hypothesis.

Marco Technologies (“Marco”) v. Keith Midkiff and Dan Urzendowski is a garden-variety “brain raid” case of the kind that we have covered on Minnesota Litigator for years. (As we all know, one of the many problems with pesky human employees, in contrast to their automata colleagues, is that people have that self-interest thing going on. In their defense, human workers share this trait, interestingly enough, with human employers but we digress.)

Marco cleverly brought its lawsuit in state court, which had the benefit of enabling the St. Cloud based company to bring the law-suit closer to home (in Stearns County). Further, Marco was able to get “swift justice” (from its perspective) of a preliminary injunction against Mr. Midkiff — maybe too swift to be true justice.

The clever lawyers for Mr. Midkiff promptly removed the case to federal court and U.S. District Court Judge Patrick J. Schiltz (D. Minn.) promptly dissolved the preliminary injunction, succinctly describing the many ways that Marco’s preliminary injunction motion (and its grant) was improper.

Judge Schiltz also did so (properly) by reference to the federal rules rather than the state rules so he could do so without expressly “reversing” the state court judge’s decision (which, of course, was under the state rules). But Judge Schiltz’s analysis would also apply under the state rules.