Triple Silver Disaster, Andy Warhol (at the Wadsworth Atheneum, Hartford, CT)

Update (March 13, 2019): In the thread of posts, below, we have made our views of the case of Shank v. Carleton College clear. Some might even say we’ve been “shrill” or that we’re inappropriately “taking sides.” (We cop to “taking sides” but reject that it is inappropriate or unwarranted.)

Linked here is Ms. Shank’s memorandum of law in opposition to Carleton’s motion for summary judgment.

In our view, this lawsuit is an injustice and a disaster. The suggestion that Carleton College intentionally inflicted emotional distress on Ms. Shank or that its actions (or omissions) could result in punitive damages is preposterous and irresponsible over-reaching. (As pointed out in the title of this post, Ms. Shank sought a one-on-one meeting with an alleged rapist. A Carleton employee allegedly first introduced the idea, according to Ms. Shank. Ms. Shank seeks to impose punitive damages on the college for acquiescing to what, no one contests, was her own request.)

Maybe there is a claim that the college’s acts or omissions in dealing with Ms. Shank fell short or triggered liability for negligence or federal law governing educational institutions (though we think not). (Few will deny that colleges are aware of under-age drinking, that they do not go to great lengths to stop it, and that drinking is a huge causal factor in many sexual assaults. On the other hand, can we not agree that college students bear some responsibility (almost all of the responsibility) for their own under-age drinking? Or that the correlation between under-age drinking and sexual assault is quite far from 1:1?)

To demonize the school for “deliberate indifference” or “intentional infliction of emotional distress” under the undisputed facts of this litigation, however, is, in our view, beyond the pale.

Update (February 18, 2019) (under the headline: Carleton College is Against the Ropes But Way too Soon to Call the Fight): We will be interested in the response to Carleton College’s motion for summary judgment in the case brought against the college by a former Carleton student, Ms. Elizabeth Shank. In the posts below, we discuss Ms. Shank’s claims that arise from two different alleged sexual assaults she allegedly experienced at Carleton at the hands of two different fellow students (one during her very first week at the school, the other a year-and-a-half later).

As we point out in the previous post, below, colleges are placed in an unwinnable situation where they have to balance the interests of accusers, the accused, fellow students, parents, faculty, alumni, the public (including law enforcement) (and undoubtedly additional stakeholders clever readers can list). They want, of course, to placate every stakeholder. This might be inherently impossible in many cases, most cases, or, maybe even all cases.

Most importantly, colleges won’t know exactly what happened (on 9/12/11 and the Spring of 2013 in the case of Ms. Shank). The only certainties are (1)  they will never know; and (2) what happened will be sharply contested.

We have taken the position consistently in this case that Ms. Shank’s claim against Carleton College for “intentional emotional distress” is preposterous and that her claim for punitive damages against the college is as well. Nevertheless, the U.S. District Court (D. Minn.), to date, has refused to throw out either of these claims.

Will Carleton face the triple silver disaster: 1) the threat of a trial, on (2) a claim of intentional infliction of emotional distress, and (3) the threat of punitive damages? If so, we hope that Carleton will take it to and through trial and then, if unsuccessful, will appeal. There are limits as to what a college can do. In our view, the implications of the claims in this case go far beyond that.

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Many of us spend a lot of time decrying the high cost of our civil justice system, its errors, its biases, and its unfairness. Many of us acknowledge that our legal system is badly flawed, most notably due to the time and expense involved in most civil litigation.

One of the greatest values of knowledgeable, experienced, and ethical civil litigators can be their superior ability to handle cases efficiently.

It is deeply ironic that, in many cases, this means they are less well compensated since compensation in many civil cases is based on the hourly billing model. Nevertheless, savvy consumers of legal services wisely recognize that a knowledgeable and experienced civil litigator who, say, bills out at a relatively high hourly rate (or takes a higher contingent fee than other lawyers) might be the cheapest lawyer in town.

These thoughts came to mind when we recently noted the docket in Steiner v. City of Minneapolis. The allegations in Steiner’s lawsuit are remarkable. So is the apparent streamlined efficiency of the lawsuit.

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nuclear_fireball1 bomb explosionUpdate (March 7, 2019): The Minnesota Supreme Court heard argument in the Kedrowski case, described below. The question: did the trial court err in throwing the case out after a jury verdict, based on the trial judge’s conclusion that the plaintiff’s causation expert’s opinion “lacked foundational reliability.”

Among other things, the Minnesota Supreme Court is hung up on the standard of review. Is it “abuse of discretion,” which would apply to a decision on the admissibility of evidence, a deferential standard of review? Or, since the decision was in the context of a motion for judgment as a matter of law, is the decision subjected to a stricter standard of review?

In one sense, we do not think this is a difficult case.

Trial court judges may not weigh between two competent experts’ analytically sound and methodologically sound opinions.

On the other hand, if the judge finds one side’s opinion is analytically or methodologically unsound, the court should exclude that opinion. As for whether that decision is before or after a jury verdict does not matter. Either way, a litigant cannot prevail based on  analytically or methodologically unsound expert testimony.

That much of the analysis is easy. Or is it?

In this case, the court must grapple with and understand technical expert testimony. This is not a case of “junk science,” which we know has no place in a court of law. The justices (and the trial court judge, and the intermediate court of appeals) are in a far more difficult spot when evaluating technical evidence by a competent expert in a recognized scientific field (as is the case in Kedrowski). (Did Plaintiff’s expert properly perform the “flow bench test” and did he properly analyze the data from it? Assuming his analysis of the flow bench test results was flawed, aside from the flow bench test, did Plaintiff’s expert have other sufficient foundational bases for his opinion?)

As for the timing of the trial court judge’s decision, whether during trial or after a jury verdict, that may be irrelevant. Either way, the questions are (1) what is the appropriate standard of review, and (2) did the trial court judge get it wrong?

But is the timing irrelevant?

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Update (April 4, 2019): We intended our story, below, to be an illustration of how e-discovery can  overshadow and/or complicate litigation, which, in theory, e-discovery is supposed to help resolve or simplify.

The Stratasys v. Krampitz case involved alleged misappropriation of Stratasys property. Stratasys’ computer forensics expert took the position that Stratasys had evidence of misappropriation. Krampitz’s expert took the position that Stratasys’ expert’s analysis was unsupported.

As described below, this got personal, you might say. This week, Stratasys’ expert took the unusual step of submitting correspondence to the Court to clear his name.

What a mess and, as far as we’re concerned, it simply confirms our view that E-Discovery = E-Disgustery.

What we find particularly interesting to consider is whether this aspect of civil litigation, the mess of digital data disputes, is a transient “growing pain” as the computer technology has propagated throughout every aspect of U.S. commerce or whether such disputes are here to stay for the foreseeable future. We feel confident that lawyers and their clients are increasingly “getting it,” that these kinds of disputes, which can be extraordinarily costly, are becoming less frequent, less expensive, and will become obsolete before too long. But this might be wishful thinking on our part.

Update (February 28, 2019): We are told that Stratasys’ motion for spoliation sanctions was denied from the bench on Monday and the case settled on Wednesday (i.e., yesterday, 2/27/19).

Congratulations to the parties for stanching the arterial hemorrhage that is civil litigation. Civil litigation makes a lot of sense when a lot of money is in play. Even more when non-monetary but vital interests are at stake (the right to see one’s children, for example). In far too many cases, however, it makes very little sense.

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Update (February 27, 2019): Fitting with an “emergency” motion, U.S. Mag. Judge David Schultz lost no time in ruling on the emergency motion for sanctions, discussed below.

Strictly speaking, he denied the motion but, really, he found that “sanctions are appropriate in this instance” but he denied the requested relief, granting alternative and less severe relief. (Why? Why not grant the motion? Maybe Judge Schultz did not want to tarnish Homestar or its “current counsel” with sanctions when (reading between the lines), previous counsel may have borne the lion’s share of responsibility.

Original post (February 11, 2019) (under headline, “What is an emergency?”): An emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action,” otherwise defined as “an urgent need for assistance or relief.”

What is not an emergency? 99.999% of what U.S. civil litigators do for a living.

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It is  gratifying when a person appears to take the position that he can defy legal obligations and our court system puts him in his place.

Mr. Nasser Kazeminy, a highly successful business person, seems to have found himself in this situation in connection with his son’s divorce proceedings. Mr. Nasser Kazeminy was required to produce financial records in connection with the proceedings (his son, Nader, among other things, is an officer in the family company, NJK, and the beneficiary of significant family trust funds). But, in response for demands for financial information, Papa Kazeminy took the position, “I’m not going to give nobody anything.”

Hennepin County District Court Judge Edward T. Wahl concluded otherwise and he found NJK and Mr. Kazeminy in contempt for their failure to obey court orders for the production of documents. Judge Wahl ordered NJK and Kazeminy to pay $89,612.50 of the other side’s legal fees. Mr. Kazeminy appealed to the Minnesota Court of Appeals and, this week, lost there. We will see whether he has the appetite for further appeal and whether the Minnesota Supreme Court will take up the issue. We hope not. This case has already dragged on far too long.

This week’s appellate decision should be of interest to Minnesota litigators in its discussion of contempt, civil contempt, and constructive civil contempt and, also, its discussion of criminal contempt vs. civil contempt. Still further, it touches on whether a non-party can be found to have violated Minn. R. Civ. P. 37, the rule for sanctioning parties (normally) for wrongdoing in civil discovery and answers, “yes.” This might be the most practical pointer of all for Minnesota litigators (because contempt proceedings are quite rare).

 

Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

The pathetic thing about this week’s ruling that Plaintiff Wing does not have to pay Defendant Tricam’s claimed expert witness fees is that the two sides had been negotiating their disagreement as to responsibility for the fees and they were just $500 apart.

Tricam could have accepted $500 less than it demanded from Wing. Instead, Tricam brought a motion for the full $4,500 that Tricam felt Wing owed Tricam and Tricam lost the motion entirely. That is, Tricam took a $4,500 loss and multiplied it by some untold amount.

We suspect that Defendant Tricam is fit to be tied about its litigation with Wing, a competing ladder maker.

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

The fight is whether Tricam’s ladder complies with a particular ANSI standard as it claims to. If it doesn’t (which is not conceded), does application of this sticker to the ladder (see the blown-up sticker below) amount to “deceptive trade practices” or “false advertising”?

Does Wing truly believe that ladder shoppers are tricked into buying Tricam ladders based on this sticker?

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Some years ago, we told the war story of a jury trial on the meaning of “operates via buoyancy,” where the two sides battled for a few weeks to persuade the jury over their respective views on the meaning of the word, “buoyancy.” After all that, it became apparent from a note sent out by the jury during deliberation that the jury felt that the case hinged on the meaning of the word, “operates” (which neither side had addressed during the trial).

And what happens if a jury finds that Party A is “not at fault” but also finds Party A is also “partially responsible for the injury”?

What is the judge supposed to do? Is she supposed to abide by this internally inconsistent verdict? (How?) Does the judge just get to pick the finding that she agreed with? Does the entire trial have to be re-done? Does Party A win based on this finding of “no fault”? The Minnesota Court of Appeals addressed this situation this week in Anderson v. ISD 96, a lawsuit arising out of a car/school bus accident.

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Updated post (February 8, 2019): One fertile patch for malpractice claims are financial transactions and a lawyer’s undisclosed conflicts of interest or breaches of fiduciary duties (the duty of loyalty, candor, confidentiality). These are common pinch-points because transactional lawyers are, in an important sense, in between parties as much as they are on one side or the other in transactional work. In other words, if Party A and Party B are negotiating to form Venture X together, the parties obviously want to be collaborative rather than adversarial. Their lawyers, too, would like to be everyone’s friend (and likely hope to be Company X’s lawyers for years to come)….

Then there’s the challenge that ventures may and often do involve not just two parties but many more. Still further, Parties A, B, C and D are often non-human entities. Each maybe composed of multiple members or shareholders, some of whom are also non-human entities, etc. etc. And, of course, Party A might own a minority interest in Party D. 

Still further, transactional lawyers add their sprawling business ties (and their law firms’ ties) sometimes accumulated over decades to these risky and complex situations. Every time, they owe their allegiance to the client or clients they represent in the deal at hand — for sure — but also, for some, there is an irresistible (sometimes inconsistent) allegiance to themselves and their law firms.

The essential claim in Azarax’s professional malpractice lawsuit against a transactional lawyer is that he, as Azarax’s predecessor’s lawyer, failed to disclose his involvement with another business (“WCV”) and conspired to shift a lucrative business opportunity from Azarax’s corporate predecessor to WCV in which the lawyer had an ownership interest. This, in turn, is alleged to have caused Azarax’s initial public offering (“IPO”), which would have raised hundreds of millions of dollars, to crash and burn.

If these claims are true, this would appear to be an open-and-shut case of breach of fiduciary duty and professional malpractice in our view.

But factual allegations can be wrong, of course, and what appears to be an open-and-shut case, even if all of the facts are as alleged, can be deceiving, particularly when it comes to the enormous hurdles of legal malpractice actions.

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The Judge ruled against the motion in limine you brought before trial.  You didn’t raise that in a new trial motion.  May you challenge the ruling on appeal?  In Bhakta, the Minnesota Court of Appeals said, “no.”  The Minnesota Supreme Court disagreed.  In a new decision in the case, the Minnesota Supreme Court said, “yes,” a motion in limine decision made before trial may be challenged on appeal, even though no new trial motion challenging it was made.

Two earlier Minnesota Supreme Court cases laid out the basic rules.

Sauter says that trial procedure, evidentiary rulings and jury instructions may be reviewed on appeal only if a motion for a new trial was made.  The rationale:  the district court should be given an opportunity to correct errors, perhaps obviating the need for an appeal.   And perhaps developing the record more fully, so that it is available if an appeal goes forward.  In another case, Alpha Realty, the Minnesota Supreme Court held that substantive legal questions decided by the district court may be reviewed on appeal whether or not a new trial motion was made.

A motion in limine decision makes an evidentiary ruling, so the Bhakta Court of Appeals reasoned that that kind of decision was covered by the Sauter rule, and not reviewable on appeal without a new trial motion.  The Supreme Court reversed, reasoning that when a motion in limine is made before trial, the district court generally has the time for thoughtful decision-making.  There is little additional benefit to be gained from a second review by the district court.

So, where do we stand now?  No new trial motion is needed for review of motion in limine rulings made and decided before trial.   The last sentence of the Bhakta analysis says, that, “[t]he Sauter rule continues to apply to motions brought or decided during trial.”    In a footnote, the Court identified an issue to be determined: whether the Rules of Civil Appellate Procedure should be amended or clarified regarding when a motion for a new trial is required to present an issue for appellate review.   The Court referred the question to the Court’s advisory committee on the appellate rules.  So expect more discussion of this issue and perhaps proposed amendments to the appellate rules.