In a recent post, we lamented the existence of “zombie cases” — cases where there seem to be no genuine disagreements either as to the facts or the law but the cases persist anyhow for one reason or another (often because a litigant is simply delaying the inevitable). One solution, we suggested, is the more liberal use of “fee-shifting,” or you might call it the imposition of “conduct-based attorneys’ fees.”

One might get some insight into whether this would be successful by considering family law cases, in which courts more frequently award conduct-based attorneys’ fees because there is a statute expressly providing for them.

A district court decision imposing such fees was recently affirmed by the Minnesota Court of Appeals.


Drawing of Anger, made possible by Creative Commons,

The refrain in The Message by Grandmaster Flash (1982) goes like this:

Don’t push me, ’cause I’m close to the edge/I’m trying not to lose my head/It’s like a jungle sometimes/It makes me wonder how I keep from going under…

Most if not all of us are pushed, we are tried, and we are stressed. Every day. By bills, deadlines, dilemmas, responsibilities, and pressures of all kinds from several different directions.

Sometimes, on top of it all, indecent and unpunished injustice piles on, as well.

One has to imagine that Alan Morrison was pushed over the edge when police showed up at his home because of unsubstantiated claims of child abuse of his daughter.

It seems that Mr. Morrison lost his temper.

Did that justify his being surrounded by several police officers, being put in a headlock to the point of losing consciousness and being tased? Was that a reasonable use of force?


The jurist Benjamin Cardozo (1870-1938) used the most florid speech of any famous American judge and his description of “fiduciary duties” has been quoted thousands of times because it is quirky and therefore memorable:

When it comes to people who owe other people a fiduciary duty (such as business partners), “not honesty alone but, the punctilio of an honor the most sensitive, is…the standard of behavior.”

To use more common speech, in affairs of business, in the market-place, courts generally try not to interfere with hard-nosed and sharp-elbowed business practices. The market-place can be rough and, to a large extent, our legal system is fine with that. However, if you enter into a partnership, if you go into business together, or if you owe someone else a fiduciary duty for any variety of reasons (as attorneys generally owe to clients, etc.), courts will step in if you dupe someone to whom you owe the duty. The duty involves loyalty, “utmost good faith,” “the obligation to disclose material facts, and the duty to act in an honest, fair and reasonable manner in the operation of the business.”

Plaintiff Kevin McGregor formed an LLC with Jessica Medlin to develop a building in the Linden Hills neighborhood in Minneapolis. She allegedly mispresented her finances to McGregor, she allegedly unilaterally passed information about the opportunity to third parties, and, Plaintiff alleges, Ms. Medlin scuppered the deal Plaintiff had so she and others (and not the Plaintiff) could capitalize on the opportunity. Ms. Medlin and her alleged fellow co-conspirators tried to get out of the case on summary judgment; that effort went badly for the defendants who lost on every claim. Trial is scheduled to begin in less than two weeks before Hennepin County District Court Judge Mary Vasaly.

The order denying defendants’ motions for summary judgment is 35-pages but it is worth reading in its entirety. The court’s analysis is detailed, thorough, and insightful. And the case highlights the importance of deep fact discovery. “be careful what u say and how u say it. I can’t get this linked back to me,” is a text message from Defendant Medlin to an alleged co-conspirator. (See here at p. 10.) At around this time, someone allegedly tipped off Plaintiff’s business partner that, “the competing group knew what we were up to before we did…” (see here, again at p. 10). We’re sure that it was no simple (or cheap) task getting this information but it might show itself to be extremely valuable information in the resolution, one way or the other, of this lawsuit.

The NFL zealously protects its IP so we had to create our own graphic

Minneapolis-St. Paul metro area residents are putting up with quite a lot of disruption due to the upcoming NFL championship football game and one has to wonder what we are getting in return?

In particular, what about Minnesota lawyers? Don’t they deserve a little bump, a little compensation, for putting up with this extravagant spectacle?

Of course, we do.

Maybe the recently filed lawsuit by Nomadic Entertainment Group against Dakota February Events, LLC will begin to make a dent in the trade imbalance between Minnesota lawyers and the National Football League?

The basic claim in Nomadic’s lawsuit is straight-forward but contruction-related litigation can be extremely document intensive and factually complicated.

The basic claim is that Nomadic was responsible for building an entertainment facility outside and near Mystic Lake Casino. Nomadic allegedly failed to meet a “completed by” deadline. Dakota pulled the plug on the venture, which will impose obvious and significant financial loss to Nomadic. Nomadic suggests that Dakota acquiesced in the delay and caused the delay; therefore, Dakota is liable to Nomadic for several million dollars.


Update (January 24, 2018): Viking Forest Products, LLC v. Twin Mills Timber & Tie Company, Inc. is a nauseating case.

The allegations in the case were that Defendant Twin Mills Timber & Tie sold Viking Forest Products non-existent “crane mats” (used in the construction industry as stabilizing pads and bridging for the movement and operation of cranes and other construction equipment). Twin Mills allegedly accepted payment for crane mats from Viking and then failed to make them to the tune of $797,738.29.

This appears to be a classic zombie case, no genuine dispute but the case nevertheless lumbers on (pun intended). How much money should it take to Viking to obtain a judgment against Twin Mills? How much time?

The case started as an unopposed arbitration in the Spring of 2016. It took the rest of 2016 to get the arbitration award (which did not include any award for the claimant’s legal fees). The Pyhrrhic battle to get the arbitration award converted to a court judgment (through confirmation of the arbitration award and entry of judgment) has been pending in U.S. District Court (D. Minn.) for over a year now. It is on-going.

This is simply one more of thousands of lawsuits that reflect our broken legal system. Presumably, Viking has incurred over $100,000 in legal fees for, essentially, nothing to date (and who knows when it will get its hand on cash?). It is no wonder that lawyers are heavily criticized by many in our society who correctly suggest that too often the system does not work for anyone other than the lawyers.

We are at a loss as to how to address this massive failure. How about one simple adjustment: a more liberal use of fee-shifting when defendants needlessly and in bad faith prolong litigation? (See Singer, Jacob (2010) “Bad Faith Fee-Shifting in Federal Courts: What Conduct Qualifies?,” St. John’s Law Review: Vol. 84: Iss. 2, Article
4). Conduct sufficient to allow for “bad faith” fee-shifting should include when “action should have been unnecessary and was compelled by the party’s unreasonable, obdurate obstinacy.”

But you might reasonably ask: if a company is going to ignore an $800,000 debt, how will adding another couple hundred thousand dollars for the other side’s legal fees speed up resolution? This is a fair point.

How about apportioning some of the fees to be paid by the lawyer or law firm of the bad faith litigant? After all, most often it is the lawyers who embody and promote parties’ unreasonable, obdurate obstinacy, choking the legal system with reams of garbage.

Presumably, the bar would find any such broadened use of Rule 11 deeply objectionable. They would argue that it impedes their obligation to be zealous advocates for their clients. (Coincidentally, it would result in them making less money, of course.) Perhaps it would temper or cap the zeal without damaging its clear and important value to our adversarial system?

It seems that somehow the calculus must change to clear our legal system of zombie cases.


[Editor’s Note: See the comment, below. It is worth noting that Mr. Capistrant’s discipline took a long time but it is not as if he was practicing law during the drawn-out process. The question still remains: why did it take as long as it did?]

Joseph Michael Capistrant was a Minnesota lawyer whose misconduct was bad enough to warrant disbarment.  He never cooperated with the Minnesota Office of Lawyers Professional Responsibility (the “OLPR”) for wrong-doing before his suspension in 2018.

In late November 2015, the OLPR gave Mr. Capistrant a deadline to cooperate by 1/14/16 or charges would be filed.  But then the OLPR did not file charges against Mr. Capistrant for more than a year after the deadline, on 2/1/17.

It appears that over two years passed between the date that OLPR had information indicating that Capistrant had committed misappropriation from a client and refused to cooperate with the investigation and the date on which Capistrant’s license was finally taken away.

The length of time for OLPR ethics investigation is puzzling and troubling. There are over 100 complaints that have been pending before the OLPR for over one year. There has been some progress in addressing the serious backlog over the past several years but much more is needed.

Minnesota Supreme Court Justice David Stras has been credited with efforts to speed up action and resolution by the OLPR  in recent years but he appears to be on his way to the U.S. Court of Appeals for the Eighth Circuit.

Who will replace him and will they appreciate that there is a serious and on-going problem at the OLPR?


The First Amendment of the U.S. Constitution protects the right to free speech (among other critical rights, of course) and even speech that many of us find abhorrent.

Many find disrespecting the national flag or refusing to stand during the pledge of allegiance abhorrent but that is protected “symbolic speech.”

“It is poignant but fundamental that the flag protects those who hold it in contempt,” U.S. Supreme Court Justice Anthony Kennedy has written. In protecting flag protesters, can the government ban “disrespect” of those showing “disrespect” for our nation’s flag? Of course not. That is logically impossible.

According to the now-disbanded Edina High School Young Conservatives Club (EHSYCC) and its lawyers, however, this is what the Edina School District has done. And, in response to the school’s motion to dismiss, EHSYCC seeks to bring a summary judgment motion in its favor right at the start of the lawsuit.


Update (January 19, 2018): In the original post below, we decried the soft discipline of a Minnesota lawyer for serious misconduct. Although we are not trained in mental health diagnosis, in our view, the extraordinary misconduct could only be excused by mental illness.

Therefore, in the post below, we advocated for a stiffer penalty than our disciplinary authority recommended (a 60-day suspension).

We did not discuss the possibility of a mental health evaluation in the original post because the disciplinary authority imposed the requirement of a mental health evaluation. So that, at least, was covered.

Now the Minnesota Supreme Court has approved and agreed on the 60-day extension but reversed on the requirement of a mental health evaluation.

Rather than making our counter-argument from scratch here, we recommend the concurrence/dissent of Justice McKeig (linked here at page 27) making these exact points.

In addition, we have some further points (after the jump):


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.

Time’s up. Our society has changed. The notion of “women’s rights” has evolved from a rallying cry of activists 100+ years ago to such a fundamental and widely shared value that the expression almost seems absurd.

Who on earth ever questioned that women should have equal rights? Was it once a controversial opinion that women treated equally to men? Was it widely accepted that women could be routinely objectified and sexualized without consequence? These questions are naive and rhetorical, of course. Our society’s struggle for equal rights for men and women is work-in-progress but times are changing.

And the change is not only about interactions between men and women.

A lot of exploitation that has been accepted for a very long time is now being exposed and rejected.