We had the good fortune and misfortune of going to trial last week in a two-day jury trial.

We won.

The “good fortune” is purely selfish. As many U.S. civil litigators know, it is difficult to get trial experience since 95-99% of civil lawsuits settle or are resolved before trial.

True, trial is stressful and exhausting for everyone involved but, for trial lawyers, it is often fun (if they have chosen their profession successfully, at least (and if they feel confident in their clients’ case)). It is the culmination, one might say, of one’s training.

The misfortune of our trials are mainly borne by our clients. In last week’s trial, though victorious, the company client had to spend about two years (and two stressful days of trial) defending a case that had no merit. Our client won but paid dearly to defeat what, in our view, was a ridiculous case from the get-go.

Our Practice Pointers From Trial

POINTER NO. 1: HAVE A TRIAL NOTES NOTEBOOK. Keep a trial notebook throughout your practice as a litigator, from your first trial to your last. After every trial, quickly jot down “post-trial notes” to capture what you learned for your future trials (which might be several years later).

In every trial, there will be slips, lapses, oversights, complications, and unforeseen twists. There will be lessons learned.

POINTER NO. 2: USE MANILA FOLDER FOR VOIR-DIRE. The voir-dire process (in Minnesota, at least, in our experience) moves very fast. It is a fire-hose of information. It is at the start of trial when nerves most interfere with cognition. It comes before one has found one’s rhythm. One trick that we learned in an earlier trial (from an adversary lawyer with loads of trial experience) was the use of a manila folder to diagram the jury venire in voir-dire. This is extremely useful in keeping track of the information that one learns about each juror.

The unfolded manila folder is larger than a standard pad of paper. You will need the extra space. In Minnesota civil trials, there are often 11-12 jurors, seated in two rows of six (or a row of six and five or whatever, depending on available seating etc.), of whom 7 will be empaneled for trial. Draw boxes on the manila folder corresponding to the seating configuration of the venire (e.g., two rows of six boxes each). This will help you capture information about each juror quicker and more efficiently and help in your decision-making about the exercise of peremptory challenges.

POINTER NO. 3: JURORS MUST SEE EXHIBITS IN REAL TIME DURING TRIAL. Figure out a way to have the jury see documents that are exhibits in the case and about which witnesses testify.

To many, POINTER NO. 3 will seem like a “no-brainer” and it is, in fact, a no-brainer that you want the jury to see “Exhibit ###” while you question a witness about it. In our view (some disagree), it might be hard to imagine a more boring and useless experience than jurors sitting and watching a witness talk through a document that the jurors cannot see, particularly, of course, a document that is central to the case or that contains a lot of important information for the case.

What is NOT a “no-brainer,” however, is that different courthouses have different technology available. Different courtrooms have different physical configurations.

In federal courts, in our experience (that is, in U.S. district court (D. Minn.)), civil litigators are “good to go” with courtroom presentation technology. The same is not true in state court.

POINTER NO. 4: DO NOT ANTAGONIZE YOUR ADVERSARY; YOU SHOULD COLLABORATE WITH OPPOSING COUNSEL IF AT ALL POSSIBLE. In last week’s trial, we had the good fortune of extremely respectful, civil, and collaborative relations with opposing counsel. This was particularly important for “Pointer No. 3,” above, as we shared document display technology without any game-playing, without sharp elbows.

These pointers may be well-known and obvious to all experienced civil trial lawyers (maybe criminal trial lawyers, as well; we’re unqualified to say). To those still learning, however, we hope the pointers will be useful. But, keep in mind that, in our legal system, trial generally represents a failure, a sub-optimal resolution. For the sake of your clients, may you be disappointed and deprived of trial experience and, instead, prevail on your adversary to be reasonable and amenable to a less expensive, less error-prone, and uncertain resolution.

Minnesota, the land of 10,000 lake disputes…

In the attached, diagram, we see the relative location of Lot 1, Lot 3, Lot B, and Gleason’s Lake in Plymouth, Minnesota.

What we do not get to see is the Sterling dock that, Sterling, the owner of Lot 1 built across Lot B to access Gleason Lake. Ren Xu and Baiqing Liu, owners of Lot 3 and Lot B brought a lawsuit for trespass against Defendant Scott Sterling on account of the Sterling dock to Gleason Lake.

At issue on appeal was whether to uphold the district court’s decision in favor of Sterling.

To prove trespass Xu and Liu had to prove that Sterling (Lot 3) did not have “riparian rights” over Lot B to reach Gleason Lake or, in order to prove “no trespass,” Sterling had to prove he did have riparian rights over Lot B.

Riparian Rights

“[O]ne may have rights to the use and enjoyment of the water, rights exclusive of the general public, through ownership of lakeshore or lakebed. These rights the law calls riparian. One does not own the water; one owns riparian rights to the use and enjoyment of the water.” Pratt v. State, Dep’t of Nat. Res., 309 N.W.2d 767, 772 (Minn. 1981) (footnote omitted). “The riparian owner may, to facilitate access to the water, build and maintain wharves, piers, landings, and docks on and in front of his land and extend the same into the water, even beyond low-water mark, to the point of navigability.” State ex rel. Head v. Slotness, 185 N.W.2d 530, 532 (Minn. 1971).

Xu v. Sterling

Burden of Proof

One simple concept that many non-lawyers do not fully appreciate or understand is the burden of proof. If Individual #1 for Party #1 offers testimony that “The light was red,” and the Individual #2 for Party #2 offers testimony that “The light was green,” and each witness is equally credible, who is the fact-finder supposed to believe?

By definition (that is, because each is equally credible), there is no way to decide who to believe. The evidence on each side is the same. And the question, then, will be which side bears the burden of proof. Whichever side that is, would lose. The evidence is “in equipoise,” courts say. (Baseball rules solves the common impasse by adopting a default rule: a tie “goes to the runner.”)

In Xu, et al. v. Sterling, the Minnesota Court of Appeals affirmed the district court’s decision, after a trial, in favor of Sterling. Xu appealed, arguing that the district court had improperly placed the burden of proof on Xu to prove no riparian rights rather than placing the burden of proof on Sterling to prove that he had riparian rights.

The Minnesota Court of Appeals, over a dissent, found, that Sterling’s evidence “tend[ed] to demonstrate” that Sterling had riparian rights so, their reasoning went, if Sterling had the burden of proof, he met that burden (see here at p.8). In other words, it would appear that both the district court and the court of appeals “punted” as to which side had the burden of proof, finding that, either way, the Plaintiff lost. (Judge Matthew Johnson, dissenting, argued that “the erroneous burden of proof is baked into all of the findings of fact, making them invalid and unreliable”).

Photo by Molly Steenson

Photo by Molly Steenson

Talk amongst yourselves…. I’ll be back…

We had pleasure of meeting up with a lawyer in a medium sized Minnesota law firm recently and learned that firm uses no dedicated document review system for the vast majority of its client matters.

As a result, a document review at the law firm that might take 8 hours with a dedicated document review system takes the lawyers at this law firm three or four times that. And, if the case is active in Month #1 and then is inactive for Months #2-5 (or even, in some cases, inactive until Year 2), the institutional memory of the results of the document review is not well preserved and is seriously degraded by the passage of time. In other words, in Month #6 (or Year 2), the firm has to spend more time marshaling the documents than it would have if it had used a dedicated document review system in the first instance.

Different Minnesota Litigator readers might have different questions. Some might ask, “What do you mean by a ‘dedicated document review system’?” Others might ask, “What’s so nauseating about a law firm’s not using a dedicated document review system as a matter of course?”

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Photo credit: bit.ly/genebrooks

Have a look at an older post we did about designating individuals to sit for depositions as the representative(s) of a business entity (whether a corporation, partnership, or other kind of business entity). It’s kind of important.

As tempting as it might be to designate witnesses like these three chimps, pictured above, who heard nothing, saw nothing, and say nothing, the temptation should be avoided.

The requirements for deposition representatives of business entities (whether Fed. R. Civ. P. 30(b)(6), Minn. R. Civ P. 30.02(f), or your state’s equivalent) are neither complicated nor optional. Lawyers must prepare 30(b)(6) witnesses to testify on designated topics.

If you are a civil litigator, and in the deposition of your client’s corporate representative, the deponent answers: “I have never seen the deposition notice or this list of topics” (see here at p. 8) or, in response to the question, “What did you do to prepare for this deposition?” answers, “Nothing, really,” (see here at p. 16) you have not done your job.

Enter (re-enter) Prairie River Home Care v. Procura, our most recent poster-child in how NOT to defend a lawsuit (see the linked brief seeking sanctions here).

Whenever we see such catastrophic litigation maneuvers, we ask ourselves how one might distribute responsibility as between the client or the lawyers. It is impossible to know for sure. We note, here, that Procura seems to have parted ways with its lawyers and moved on to other lawyers but this information is not conclusive of the blame question by any means. We will never know.

Regardless, one thing we know with certainty: there is no benefit or reasonable strategy to producing an uninformed or uncooperative chimp in U.S. civil litigation. It simply cannot end well.

A contract is unconscionable if it is “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.”  In re Estate of Hoffbeck, 415 N.W.2d 447, 449 (Minn. App. 1987), review denied (Minn. Jan. 28, 1988) (quoting Hume v. United States, 132 U.S. 406, 415, 10 S. Ct. 134, 137, 33 L. Ed. 393 (1889)).

Do you any problems with that formulation? The phrase makes obvious sense and the concept is easily applied and uncontroversial in extreme cases — e.g., a seller trying to enforce a sales agreement on, perhaps, a vulnerable, uneducated, perhaps illiterate consumer, a sales agreement that no reasonable person would ever have agreed to.

“It is generally held that the unconscionability test involves the question of whether the provision amounts to a taking of an unfair advantage by one party over the other.”

The problem with this alternative formula is the notion of “unfair” advantage, of course.

What happens if Smart Business cuts a highly advantageous deal with Stupid Counterparty Business? When is that “unfair” vs. the critical essence of how markets are supposed to work? Smart businesses thrive and stupid ones fail and we want it to be that way, right?

In our experience, a general rule of thumb is that unconscionability in Minnesota might help a person get out of a highly disadvantageous “unfair” contract in extreme cases. However, if our clients are businesses, courts almost seem, by definition, to consider them to be “sophisticated,” which is to say they are held to contracts; they are held responsible if they are stupid. (“Minnesota law…[has] recognized that a finding of unconscionability is an unusual event, especially in the context of a commercial non-consumer contract.” Valley Tree Serv. v. RDO Equip. Co., File No. C9-05-7657, 2007 Minn. Dist. LEXIS 73, *17 (May 25, 2007).)

As such, if businesses enter into bad deals, even horrible deals, they almost always have to live with them. (See Klinge v Gem Shopping Network. In Klinge, a women bought gems from a TV gem-selling operation thinking that she’d going into business re-selling them. Her lawsuit against GSN failed.)

But then there’s Prairie River Home Care Inc. (“PRHC”) v. Procura, a case we’ve posted about previously. PRHC bought a complex software system for its business from Procura that allegedly failed terribly. The contract included limitations on remedies and damages.

Recently, U.S. District Court Chief Judge John R. Tunheim (D. Minn.) found elements of the contract between Plaintiff PRHC and Procura “procedurally and substantively unconscionable” (see here at pp. 20-23 ).

We’re quite confident that other judges might not have as broad a view of the doctrine of unconscionability as Judge Tunheim reflected in this decision. In our view, many judges would have let Prairie Home Care live with the contract terms that it agreed to.

We won’t take sides other than to suggest that a rule that businesses are per se sophisticated and, thus, unable to find protection from an onerous contract terms based on unconscionability, seems palpably false. Thus, a blanket prohibition of unconscionability in the business-to-business context seems overly broad.

A blanket prohibition of unconscionability in the business-to-business context insulates and protects oppressive and unfair business practices from judicial intervention and, without a doubt, extreme cases of such dealings damage markets rather than optimize them.

Update (July 12, 2019): We’re not optimistic for Plaintiff B. Riley FBR Inc. (“Riley”), the subject in the post below, in its latest effort to get paid on a mining deal that failed. Riley now brings a fraud claim against Defendant Thomas Clarke, personally, the C.E.O. of a mining operation, when Riley’s real target would appear to be the penniless mining operations themselves, not the C.E.O.

It seems pretty clear that the companies involved have no money and Riley is casting about for someone else with money. So Riley has sued Clarke for fraud and Clarke has responded with a strong motion to dismiss. (Here is the brief in support of Clarke’s motion to dismiss and Riley’s response.)

In business transactions gone awry, it is often difficult to produce evidence that the counter-parties never intended to perform, which is what the allegations are against Clarke and must be to state a claim for fraud (as opposed to breach of contract). (To bring a successful fraud claim, it is not enough to show the counter-parties ultimately failed to perform. The fraud plaintiff must come forward with evidence of bad faith, in essence, from the get-go.)

Original post (December 3, 2018) (under the headline: An Illustration of the Contortions of U.S. Law): B. Riley FBR Inc. (“Riley”) v. Chippewa Capital Partners LLC (“Chippewa”), et al., is a lawsuit now pending before U.S. District Court Judge Nancy E. Brasel (D. Minn.). A recent decision in the case gives us a nice snapshot of our convoluted legal system.

Riley’s efforts make a great deal of sense. Judge Brasel, nevertheless, correctly denied Riley’s motion for a preliminary injunction. Why?

The case appears to be simple. Riley performed a bunch of work for the defendants based on an agreement that the defendants would pay Riley about $16 million. Riley’s not been paid.

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Today is apparently the day in which Minnesota Litigator covers unseen lapses which, over time, result in big bad consequences.

Regular Minnesota Litigator readers will remember the ladder lawsuit between Wing Industries and Tricam (see earlier posts here and here).

For those of you unfamiliar with the earlier posts, they concerned the ladder label, below, and whether it is (a) false; and (b) material to consumers’ purchasing decisions.

This week, Plaintiff Wing Industries lawsuit went down in flames because Wing messed up (in the opinions of U.S. Judge Eric C. Tostrud (D. Minn.) and U.S. Mag. Judge Elizabeth C. Wright, at least).

Specifically, the Court faulted Wing for not distinguishing between ANSI and OSHA compliance during the discovery phase of the civil litigation. When Tricam finally tipped Wing off about Wing’s blurring of these two related but not at all identical regulation-related standards, it was too late for Wing.

Is it possible that a ladder could be OSHA compliant and ANSI non-compliant at the same time? “OSHA regulations require a product to be labeled as ANSI compliant,” Wing argued to the Court (see here at p. 22).

Unfortunately for Wing, its argument, without evidence to back it up, held no sway.

Wing—the Party with the burden of showing how [Wing’s survey expert] testimony is relevant—has not cited, and the Court has not independently identified, any evidence establishing that a ladder that does not satisfy the rung-depth requirement at issue here necessarily fails to conform to OSHA.


See here at p. 26)

This has to be a nauseating outcome of a long, expensive, and hard-fought lawsuit for the Plaintiff.

In our view, the case is resembles too many commercial disputes. Some companies seem to spend a lot of time and money unproductively — suing competitors over what, from a distance, seem to be immaterial slights. Maybe there are hidden/undisclosed considerations and strategies making this litigation worthwhile but, as far as we are concerned, TAAFOMFT.

Civil litigation generally spans about a year in Minnesota courts, with larger cases often stretching an additional year (or two) (or, in rare cases stretching many more years).

Work on a particular case is almost always in fits and starts, with flurries of activity followed by fallow periods (awaiting a court ruling on a motion, allowing time for responses to discovery, because of scheduling challenges, etc.).

One of the nauseating aspects of our work, one of the risks of civil litigation for trial lawyers, is that mistakes are made — omissions — and it can be several months or more before the oversights come to the lawyers’ attention. The lapses lie, land mines, and the consequences (if any) may be months or even years away. This is particularly unpleasant because the oversights, if caught promptly, are almost always easily remedied. If they aren’t, they aren’t.

So we are sympathetic to lawyers, Napoli Shkolnik PLLC, Hunter J. Shkolnik, and Paul Napoli Law PLLC (or, to be more precise, their predecessory firm, Napoli Bern Ripka Shkolnik) (collectively “NS”), defendants in a professional malpractice claim, who allegedly failed to disclose medical $1.5 million in their client’s medical expenses in discovery (in a much followed lawsuit against Toyota arising from a terrible car accident).

When their client eventually won at trial (and on appeal) (represented by other lawyers), she was not able to recover medical expenses that had not been disclosed in discovery.

Now, NS’s former client is suing NS for their mistake (and an allegedly “unauthorized settlement demand” (here at p. 2) or “unauthorized settlement agreement” (here at p. 4) (?)). NS, incidentally, is also suing for fees that it claims that it earned before being terminated.

Unfortunately, there is no rock solid practice pointer in this post other than to highlight the risk. Trials almost never happen; in civil litigation, they are almost always remote in time and, in a sense, “out of mind.” Checklists and docketing mitigate but cannot eliminate the risk.

[Also, Minnesota lawyers are not required to carry malpractice insurance (as Oregon lawyers are in Oregon). Legal malpractice insurance should be required in Minnesota.]
Photograph by Maura Teague

Update (July 9, 2019): Stay tuned for Plaintiff’s counsel’s fee petition “in the approximate amount of $1,080,000.00” (and counting).

Update (June 21, 2019) (under the headline: A June 10, 2019 DPPA Jury Trial?): The verdict is in and it is $585,000 for 74 Drivers Privacy Protect Act (DPPA) violations.

Original post (May 29, 2019): LEVENTHAL pllc has been on the threshold of trial twice this month. On one of these two (non) events, it got down to showing up at Court for day #1 of a week-long jury trial when the other side showed up, finally ready to pay money, not apparently all that ready or interested in going to trial. In the second case, we settled late Friday before an arbitration scheduled to start the following Wednesday (the day of this post, in fact).

So you will understand our incredulity that a “Drivers’ Privacy Protection Act” or “DPPA” case will actually go to trial, as scheduled, on June 10 in St. Paul before Sr. U.S. District Court Judge Donovan W. Frank. The case has been knocking around since December, 2013. Could this really happen?

There was a little cluster of DPPA cases that all came up about 6 years ago. They very often seemed to involve men in positions of public power or authority (for example, police officers) with access to state-controlled personal records (for example, drivers’ license records) looking at women’s pictures (and their personal information such as their addresses) without a proper or permissible purpose. Plaintiff Minneapolis Police Officer Amy Krekelberg found herself being “snooped” in this way.

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