Metro_Transit-University_Avenue-20081002Minnesota’s Data Practices Act is more complex than you would expect.  Think of all the different kinds of data collected by government bodies in the state, and all the kinds of data generated by those government bodies.

The Act says who gets access to specific data:  anyone in the public; just the subject of the data; or, in some cases, noone but the government.  The Act is supposed to balance the public’s right to government data, and certain privacy and government interests.  In a nutshell, data is public unless the Act says it’s not.

A new decision handed down last week by the Court of Appeals addresses access to one kind of data:  video tapes recorded by the MTC on its buses.  KSTP sought access to tapes recorded on two buses.  The Metropolitan Council refused to provide the tapes — contending that the tapes were “personnel data” related to discipline of the drivers and were therefore “private” under the Act, available to the drivers but not to the public.

The Court rejected that argument, based on the language of the statute, and on its underlying purpose.

The Court noted that the video recordings were made for a number of reasons, not just driver discipline.  For example, videos are used to investigate crimes, to investigate accidents and to evaluate passenger needs.  The Court concluded that where video data is collected for several reasons — public and private — the fact that it has a private disciplinary use does not allow a government body to withhold it.

The case only deals with videos taken on public buses.  But, if followed in other decisions, it may have much broader implications.  At least for some kinds of data, when data are collected for more than one purpose, including private or nonpublic uses, the data must be made public.

Stay tuned for further developments.

 

Donald_Meek_in_A_Woman's_Face_trailerI am not a religious person, much less a religious scholar. But I absorb biblical quotes by cultural osmosis as we all do. Like the phrase above, “The meek shall inherit the earth,” from Mathew 5:5. Unfortunately for me, this phrase, like so many phrases in all many religious texts, has no actual meaning. I look at each word in the phrase and each seems confusing and ambiguous. Add on top of that the fact that the phrase has been through many languages between when it was first spoken, then written, then translated repeatedly for a few thousand years or so. (Some translate it, by the way, as “The Gentle shall inherit the earth…”) So even if it seemed clear to me, I would wonder whether it was actually ever spoken or whether, when it was, it meant what I think it means today.

My take on the phrase, for whatever it’s worth: don’t pick on the weak because they will some day be in a position to mess you up in a big way. And that, I suppose, is a pretty good rule to live by. It’s a variant of the golden rule, the way I read it. Applying that simple rule in our own lives, I suppose large firm lawyers should be nice to us solo lawyers. That’s how I choose to understand the phrase.

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2836 Lyndale Ave. South Lawyer Office ShareI recently had lunch with a successful large firm lawyer. He asked me how I am liking my practice. I told him, as I have told many, that I am having the time of my life. Each day of work is fun, an adventure, and I feel very fortunate.

“That’s great to hear,” the large firm lawyer said, “since, you know, most lawyers are miserable.” And moments later, he said it again for emphasis. “You know, most lawyers are just miserable.” And we talked about the tragedy of so many people who slog through five days a week of drudgery (whether lawyers or humans) and count the days every week until the cherished weekend or day off, where they actually enjoy life. (Grinding through 72% of your life so you can enjoy 28% of it is a pretty horrible deal.)

My only complaint about the solo lawyer life is that it feels so precarious in many ways. A highwire act. No net. The lack of logistical support is an obvious challenge and stressor (office and administrative matters (scheduling, travel arrangements, billing, photocopying, collating, postage, etc. etc.)). But, for many solos, as or more difficult is the lack of a community of support. I am talking about the support of colleagues. I am fortunate. I have a office-sharing arrangement that suits me well.

If you are a Minneapolis solo lawyer and you do not have an office-sharing arrangement, you really need to consider it.

“Yes, candy-assed Minnesota Litigator,” you say, “But I am not bagging enough bucks at this time to afford renting an office in a suite….”? Three answers to that: (1) I am not “candy-assed” and I do not know you are implying. Who raised you? (2) As sales people say, “Are you sure you can afford NOT to have an office?” (remember: it takes money to make money) and (3) Please consider an opportunity for an office-share on the Greenway at Lyndale (details here) where you would get to office with Joshua Williams for $700.00/month. (If you get just a few clients from the office-share per year, that expense is paid for, right?)

Also, by the way, if you’re a solo and you really cannot take advantage of Williams’ opportunity (or any other office-sharing opportunity) for whatever reason: JOIN THE MINNESOTA STATE BAR ASSOCIATION. That’s a different kind of community, a different kind of support. But it is all of that and then some. Seriously worthwhile for all Minnesota lawyers but particularly valuable, maybe, for solo/smalls.

Bob Lear, Lear Appraisals LLC

Bob Lear, Lear Appraisals LLC

Trial lawyers work with experts in many cases and the relationship can be difficult sometimes. The expert might not say what the lawyer wants the expert to say. The lawyer might ask convoluted and impossible-to-answer questions. Sometimes lawyers might find an expert to be controlling — the proverbial armchair quarterback (or vice-versa). Sometimes it is simply that one can never make contact with the other or someone is unreliable. Sometimes experts find lawyers to be manipulative and dishonest.

These are the typical horror stories of lawyer/expert experiences.

But many times the relationship can be fantastic. The lawyer recognizes and respects what the expert brings to the table and vice-versa. The lawyer and expert can combine into a smooth-running collaborative legal team far more powerful than either of the two alone.

Residential real estate appraiser, Bob Lear, is one of those experts who takes his work very seriously. He is extremely responsive. He knows how to talk to lawyers. He knows how to talk to humans, as well. By this I mean that, though I have not seen Mr. Lear testify at trial myself, I expect that Bob Lear would be very persuasive before both judges and juries. (You can reach Bob at: Bob Lear, SRA,  Lear Appraisals, LLC, 3632 Larchwood Circle, Minnetonka, MN  55345. Telephone: 952-888-7741.)

ML: You get hired by lawyers a lot. How long have you been doing this?

BL: I have been an appraiser since 1992 and I have been doing litigation work for 15 years. For the past 3 years all I do is appraisals for legal purposes.

95% of that is divorce, approximately 4% is estate work and about 1% is business litigation.

ML: How many times have you testified at trial?

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Soo_Line_2500_StreamlinerIt has bothered me that plaintiffs are held to a somewhat high standard, in my view, as to what they can plead and what they cannot plead in their complaints when defendants are given substantially more leeway in their answers to plaintiffs’ complaints.

This rule makes sense but it still bothers me.

It makes sense because plaintiffs START lawsuits. They put the whole mess in motion. Our court system, naturally, would like to impose a punitive rule for people (or even their close relatives, lawyers) who start lawsuits where there is no reasonable basis for the lawsuit, either as a matter of fact or as a matter of law.

Defendants, on the other hand, don’t start lawsuits. They REACT to lawsuits. And the amount of time to answer  lawsuits is not a lot of time. And if defendants fail to raise what are called “affirmative defenses,” then they might be held later to have waived them. So defendants are given more leeway in raising affirmative defenses (that very often have no reasonable basis as a matter of fact or as a matter of law) than plaintiffs are given in making allegations in complaints.

So when is it appropriate for plaintiffs to move to strike affirmative defenses, which have no basis in fact or no realistic legal application to the case at hand?

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DataHypothetical: adversary in litigation asks for your client’s “ESI” (electronically stored information) related to the lawsuit and proposes that certain search terms be run on your client’s computer systems.

Your client tells you that it has already given you all responsive documents in hard copy so that any such searches would likely be duplicative.

Relying on the client’s statement, the lawyer invites the adversary’s e-discovery vendor to “come on in” and run the proposed searches. The lawyer makes sure there is a “claw-back agreement” so that his client will be able to demand return of any inadvertently produced privileged documents.

It turns out, however, that the search terms are extremely broad, that a huge amount of non-responsive ESI is produced, including information on highly confidential product plans. This is in litigation against a direct competitor.

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arrows-221459_1280“The problem with arbitration is that it is arbitrary…,” Minnesota Litigator has repeatedly quoted a senior seasoned trial lawyer as having said years ago.

Complain all you’d like about our state and federal court systems but the process is sanitized by sun-light (by which I mean that it is public, it is more subject to public scrutiny). And the judges do not charge the litigants by the hour. And there are fairly comprehensive rules of procedure and evidence that have been developed and refined over literally hundreds of years (and courts generally apply them in more or less uniform fashions while, with arbitrators, who knows (and there is no recourse if rules are not followed)?).

Also, although there are arguably all kinds of challenges and problems with our court systems’ appellate processes, at least we have those in our state and federal court systems. We have the right to appeal bad results and bad results get a fresh look from other judges. And this process works more often than not (that is, the appellate courts reverse bad trial court results and they affirm appropriate trial court results correctly most of the time).

In arbitrations, on the other hand, the appellate process is so extremely narrow that arbitration litigants are better off adopting the point of view that there is no appeal. There is just one bite at the apple. A duel in which the duelists each get one shot. In fact, this is an attraction to some of arbitration because the lack of appeal is a cap, of sorts, on time and money.

But, if arbitrations risk being arbitrary, as I have noted, then it would be fitting that something like appeals sometimes happen in arbitrations and they can flip the entire proceeding upside down, right? See what I am saying? If arbitrations are really arbitrary, an iron-clad rule that it is “one shot and that’s it” seems solid and maybe non-arbitrary? But believe me (and the wise lawyer whom I have quoted on this):

The problem with arbitration is that it is arbitrary.

Just ask Mr. Timothy Owens.

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TargetThe Associated Press reports today that the EEOC has fined Target $2.8 million for employment discrimination.

The EEOC says three employment assessments formerly used by the Minneapolis-based retailer disproportionately screened out applicants for professional positions based on race and gender. It says the tests were not sufficiently job-related. The EEOC also says an assessment that was performed by psychologists violated the Americans with Disabilities Act, which prohibits employers from subjecting applicants to medical exams prior making a job offer.

Query: (1) Does Target undertake such actions without seeking legal advice or (2) Did Target get bad legal advice or (3) Are employment laws unpredictable and hard to follow or (4) Are employment laws rarely enforced so it is more profitable to break them and get caught from time to time than to follow them?

I am tempted to speculate as to which alternative explanation applies but this is one time where I will resist.

Creative Commons License. Photo by BoH

Creative Commons License. Photo by BoH

It costs a lot of money to rent a revolving crane suitable for offshore oilfield support services. Guess how much.

About $40,000 per day for a five year contract (for a full contract price of about $72,000,000).

Several years ago, Alabama-based Blake Marine Group landed a contract to provide such a crane to a company called Oceanografia, and it was looking to clear a profit of about $58 million.

Then Minnesota-based CarVal Investors LLC and a related entity came along…

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handgun-231699_1280Minnesota Litigator strays from its mission statement of “News and Commentary about Minnesota Civil Litigation” rarely, but it does from time to time. Rarer still, I wade into culture wars or ideological battles that tear our country into pieces. But sometimes a Minnesota court decision might tempt me into these depths and, without further adieux, adieu.

If you’re looking for a concealable pistol, but don’t want to sacrifice capacity, reach for an XD® 3” Sub-Compact. It’s an excellent choice for concealed carry, and it is equally in its element at the range.” (Note that it is “in its element” at the range, as if it were alive.)

We live in a culture with a pathological love of violence and, in particular, a pathological love of gun violence.

It is very literally breath-taking.

Most of us are apparently very proud of this “unique-throughout-the-civilized-world” cultural attribute. Over decades, the United States’ national love of and fascination with firearms has caused an enormous number of suicides, fatal domestic violence, and the deaths of thousands of innocent by-standers caught in cross-fire. Thousands have been shot and died who, if we had even modest tweaks to our gun laws, would still be among us. Know some victims of gun violence yourself? Saddened by the incessant tiny coffins on TV and in the newspapers? Tough luck. Get used to it. This is the cost of doing business in the U.S. of A. This is cultural overhead, the cost-of-goods-sold, an unfortunate national gore tax that goes hand-in-glove with our love of lethal weapons.

An apparently powerless minority among us (including me) seem to think that maybe it is far past the appropriate time to recognize that a heavily armed U.S. population, no matter how much fun it sounds like it could be (to violence-obsessed people, at least), is, in fact, horribly dangerous, stupid, and unjustifiable (either as a matter of any faithful (or good faith) reading of the Second Amendment of the U.S. Constitution or as a matter of sane social policy).

So I was pleased to note this week that the National Football Association and the Minnesota Vikings were able to reverse a Hennepin Country District Court decision that would have forced the NFL and the Vikings to let off-duty police officers bring their concealed guns into football games.

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