Minnesota Litigator - Stacks_of_moneyUpdate (January 23, 2015):  Oral arguments were held in Williams-Yulee earlier this week. That case will decide whether it is constitutional to bar judicial candidates from personally soliciting attorneys for campaign contributions. And the justices seem to be dividing along the usual lines. With Justice Kennedy, who will likely be the swing vote, largely silent during the argument.

The conservative justices pointed to ways the Florida speech solicitation policy has holes and is under-inclusive. So, for example, the justices were concerned about the role campaign committees may play. And, under the Florida rule, judicial candidates may send “thank you” notes to contributors.

The attorney for the Florida Bar argued that there were two interests at stake: the first amendment interest, of course, and also the interest in a fair and impartial judiciary. Some of the liberal justices noted that attorneys may feel obligated to respond to judicial candidate requests for funds, and that the solicitations undermine the appearance of impartiality, if not the reality.

Justice Kennedy authored Citizens United, and is a strong first amendment advocate. As mentioned, he was largely silent during the argument. There were a couple exchanges that were telling, though, and may suggest how things will turn out. The attorney for the penalized judicial candidate had said the Court could rule for his client and let states bar “one-to-one solicitation” by judicial candidates. Justice Kennedy was concerned about trying to define a limit, and said, “If we say, ‘Well, the one-on-one letter, that’s almost like a personal solicitation, we can ban that,’ then what about a letter to five people? And then we’re off to the races.”   At another point, the attorney for the disciplined judicial candidate said, “[T]here are some states that prohibit the judge from finding out who [has made contributions], Minnesota, for example, has that prohibition.”  And in response, Justice Kennedy said, “Well that — it seems that — that’s just unworkable.”  Justice Kennedy’s comments do not bode well for the Minnesota middle course, which allows judicial candidates to sign mass mailings and to personally solicit funds from groups of 20 or more.

A decision will be released before July 1, 2015.

Original post (January 14, 2015):  Next week, the U.S. Supreme Court will consider whether another regulation governing judicial elections is constitutional or whether it violates the first amendment.

On Tuesday, January 20, the Court will consider Williams-Yulee v. The Florida Bar. (For a free webinar on January 15 with background on the case, click here.)

In that case, the Florida Supreme Court upheld a canon barring judicial candidates from personal solicitation of campaign contributions (instead requiring judicial candidates to raise funds through committees). The appellant in that case – Lanell Williams-Yulee – running for a county court seat, sent personal letters to potential donors asking for campaign contributions. She was reprimanded and fined $1800 for violating the anti-solicitation ban in the state’s Code of Judicial Conduct. The Florida Supreme Court upheld the constitutionality of the ban, ruling that it helped “ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.” The case is now at the Supreme Court’s doorstep.

The Florida case is the continuation of a drama that began in Minnesota.


This post appropriately follows yesterday’s post about Clayton Halunen, a passionate plaintiff’s employment lawyer. The case discussed below stands for the proposition that some employees are subjected to racist animus (or other unlawful and discriminatory words or conduct) but, at the end of the day, this, by itself, does not necessarily create a viable claim.

On the one hand, this seems to make good sense. A terrible worker should not get to keep her job or get to win money damages just because her boss is a terrible person. Employers (terrible or not) should have the right and ability to discipline or terminate all terrible workers, right? On the other hand, shouldn’t there be a means to punish unlawful discrimination, even when it is directed at employees who are deficient in other actually relevant respects? Also, how is a judge or a jury supposed to be able to figure out whether an employer’s critical regard for a worker derives from unlawful discriminatory animus rather than a sober assessment of a worker’s performance? No one is perfect, right?

Heritage of Edina, a nursing home, fired Liberian-born Hawa Kennedy in 2010 and, in 2012, Kennedy sued for violations of the civil rights act, the Americans with disabilities act, discrimination under the state human rights act, retaliation, breach of contract, and promissory estoppel.

The case finally went to trial this month and it went badly for the plaintiff. The jury found that she had suffered no damages. That is, the jury appears to have found that Heritage of Edina “discharge[d] or [took] adverse employment actions against [Hawa Kennedy] in violation of Title VII and the Minnesota Human Rights Act,” but, if the Defendant had not discharged or taken adverse employment actions against MS. Kennedy in violation of Title VII and the Minnesota Human Rights Act, it would have fired her anyhow for legitimate reasons.


Clayton Halunen

Clayton Halunen

Normally, Minnesota Litigator profiles are of Minnesota civil litigators whose practices are somewhat “niche” and who therefore are not as widely known as the depth of their expertise might deserve.

But, recently, I have strayed from that to provide Minnesota Litigator readers with profiles of more widely known lawyers. (Here is my most recent post about Minneapolis attorney Stephen L. Smith and, at the end of the profile, a list of the many others I have had the privilege of profiling.) Clayton Halunen definitely falls into the latter category. For the past twenty years, Clayton has been a plaintiff’s side employment lawyer. He owns his firm, which bears his name.

Nevertheless, Clayton is a worthy subject. He is expert in what he does. He is dedicated. He is talented. He’s passionate and he’s opinionated, which makes for a great interview.

What laws would you change if you could change them?

Where should I start? Many. In my estimation, the number one travesty in employment law is the high rate of summary judgment. I have watched this through my career. It appears to have become a docket management system rather than a justice system. We see, regularly, judges who will dismiss a case when there are material facts in dispute. Regularly. It is wrong. It is unconscionable. They took an oath to apply the law. So if I could change anything, I would require judges to adhere to the standard set down by the Supreme Court. As long as they do that, it is a fair playing field. But, weighing evidence, making credibility determinations, happens all the time by district court judges. It is simply wrong. It is not what the law provides.

The other thing I’d change concerns arbitration — the U.S. Supreme Court’s decision in AT&T v. Concepcion. The case allows companies to require workers and consumers to arbitrate disputes individually, only independently, without any group action. If the public only understood what companies are getting away with by their ability to require workers – these are adhesion contracts, there is no negotiation – … the forum is clearly set up for the benefit of the corporations. It’s just wrong. You don’t get your day in court. Most consumers can never challenge a corporation on their own. For a consumer product — say a defective product — no consumer can afford to hire experts. No lawyer will take it on. It completely changes the playing field, gives all power to corporations, and that’s a travesty.

I hope there will be legislation to change that. The Federal Arbitration Act was never intended to be used as it is now. It had its origins in maritime law.

That was my soap box. (more…)

Money RollUpdate (January 22, 2015): The Minnesota Supreme Court has granted a petition for review in the published Minnesota Court of Appeals’ attorneys’ fee dispute decision described (and called into question) below.

Original post November 7, 2014): Let’s say a client comes to you with a claim and, based on your experience, you assess the claim to have a value of between $0 and $250,000 and a most likely recovery of less than $100,000 in your best estimate. (Let’s say the range has to do with complications with regard to liability and with regard to claimed damages, as well.)

You take the case on a contingent fee and the defendant offers your client $100,000 in a settlement mediation.

You want your client to take it. Your client wants to hold out.

What are you going to do about it?



Photo by Keon McGarvey

Update (January 21, 2015): Your heart can basically stop or explode without warning while you’re driving (justifying a defense of “sudden incapacitation”). So found the jury in Soo Line v. Werner Industries this past October. Too bad for Soo Line, which sued Werner Enterprises for environmental clean-up costs when Werner’s employee Dale Buzzell drove a truck into a train, a tank car full of chemicals, in particular, (and died). The jury appears to have credited evidence that Buzzell suffered an acute cardiac event which rendered him incapacitated moments before colliding with the train. Sr. U.S. District Court Judge David S. Doty (D. Minn.) denied the railroad’s motion for judgment as a matter of law or for a new trial this week.   (more…)

coin_tossIf you are a large corporation, you favor arbitration. If you are a consumer, you oppose arbitration. I won’t try to change the strongly held opinions of either of these two players in the world of commerce. They have their reasons and the analysis behind their preferences is complicated and unsuitable for a short blog post.

But what if you are a small or medium-sized business? Do you want to enter into agreements with arbitration clauses?  Maybe yes, maybe no. Talk to a lawyer who can explore the specific circumstances with care and give you a fully informed opinion. But if you talk to me, I am likely to warn you against entering into arbitration agreements.

The standard criticism against arbitration is that arbitrators tend to “split the baby” (awarding the non-meritorious claimant half the claim and the meritorious claimant half the claim — the very definition, one might say of arbitrariness, by the way). This wide-spread view is seriously unsupported empirically. What cannot be denied, however, is that if an arbitrator’s award (or denial of an award, or split of the award) is dead wrong, there is slim-to-no likelihood of any meaningful appellate review. Most businesses know this. But they think that the risk might be worth running because of a sense that arbitration is faster, cheaper, more confidential, and, in the view of some, more reliably accurate than a judge or jury.

But many lawyers believe the expense savings of arbitration are overblown, if not outright incorrect. Same thing with the supposed time-savings. And there’s plenty of opportunity for confidentiality within our court system. And then there’s the cost of the arbitration process itself. Had a look at the American Arbitration Association (AAA) schedule for filing fees, for starters? Keep in mind, for a commercial dispute involving significant amounts of money (that is, over $100,000 in dispute) these fees are in the multiple thousands of dollars. And these fees are generally non-refundable, as the AAA emphasizes in bold. And do not forget that one has to pay the arbitrators on top of that, of course. Sometimes a whole lot of money for a lengthy arbitration…What kinds of incentives does that create?

IMG_20150114_091902Last week, I found myself in U.S. District Court for the District of Minnesota before U.S. District Court Judge Ann Montgomery arguing about fair play and substantial justice in a business dispute. It was an early morning hearing so we could clear the courtroom for the on-going high-stakes trial of Trice-Adams v. Toyota Motor Corporation, the case that pits bereaved families against the car company in connection with the terrible accident that resulted in deaths, injuries, and in the wrongful conviction of Koua Fong Lee for vehicular homicide.

From the magic words of “fair play and substantial justice,” experienced litigators will recognize that I was in court in connection with a threshold dispute over personal jurisdiction, which often (and in my case) plays out at the inception of litigation. But “fair play and substantial justice” is what litigation is all about from the very onset to the final judgment, of course.

I lingered in the courtroom to watch some “fair play and substantial justice” in action at trial — some testimony in the Trice-Adams v. Toyota case.


Martin Luther King, Jr.

Martin Luther King, Jr., Photo By PBS NewsHour

“We have flown the air like birds and swum the sea like fishes, but have yet to learn the simple act of walking the earth like brothers.”  Martin Luther King, Jr.

Update (January 16, 2015): Everything is bigger in Texas. Texan Mikal Watts is one of the biggest plaintiffs’ lawyers in the United States (and not immune from suspicion of wrong-doing, incidentally). About five years ago, Minnesota Litigator followed his trial win in the Levaquin litigation for plaintiff, John Schedin (discussed below). They don’t really get bigger than Mikal Watts. AND NOW HE’S BACK IN TOWN…

He seems to have teamed up with an obscure Minneapolis lawyer named Lew Remele and other Minnesota lawyers in a case against Syngenta over Syngenta’s sale of corn with a “trait” that made the corn unsuited for sale in China. Mr. Remele is undoubtedly still licking his wounds after having won a mere $800 million in a case Western Digital this past year. Like any seasoned trial lawyer, one can be sure that these lawyers know it’s a numbers game. You win some, you lose some. And some win a lot…Stay tuned for more posts on this litigation….(or maybe not. It would appear that plaintiffs and defendants each want the case to be tried elsewhere) (and it is looking like Dorothy might be heading back to Kansas)…


Gaines's_Mill_1900Some years ago, I worked for other lawyers and I learned a lot from many different lawyers. But I also was frustrated by other lawyers’ decision-making on strategic issues from time to time. One time, I proposed bringing a strategy and senior lawyers at the firm I was then with veto’d the motion that I had proposed bringing. “We are not confident that you will win that motion, so we don’t think you should bring it,” I was told.

That reasoning was flawed. Trial lawyers who shy away from bringing motions because of a concern the motion will fail may be missing the forest for the trees. Litigation is a bit like a battle. There are attacks, counter-attacks, feints and flanks. Don’t reject a maneuver because the specific tactic might not be the decisive tactic.

A recent case in the U.S. District Court (D. Minn.) provides an example.