Evil Satan DevilUpdate #4 (February 3, 2017):  The Great Lakes Gas Transmission v. Essar Steel lawsuit, filed in October, 2009, tried to a jury August, 2015, resulted in a $39+ million verdict. We’re a little late in reporting that the verdict was thrown out in December by the U.S. Court of Appeals for the Eighth Circuit in December. The Court of Appeals held that the district court (D. Minn.) did not have subject matter jurisdiction. This week, however, we learned that Great Lakes failed to get the Eighth Circuit to reconsider the decision. Now the question is whether Great Lakes will seek review by the U.S. Supreme Court or whether it will give up and start again in state court.

This result highlights a flaw in our legal system. This extraordinary, even mind-boggling, sacrifice of time and money is due to our “dual federalism” — federal courts preside over some cases and state courts over others. The complexity involved in the analysis of federal jurisdiction (or state court jurisdiction), combined with the unbelievable waste if the trial court gets it wrong, and, finally, combined with the fact that ever-shrinking distinctions between states in our country make for an antiquated, inefficient, and deeply faulty dispute resolution system.

Update #3 (October 14, 2015) (under headline: The Dollar’s In the Details: Great Lakes Gas Transmission v. Essar Steel (filed in October, 2009, tried to a jury August, 2015)): We read about litigants “posting bond” often but we do not get to see them very often to see just what they are, what they actually look like. If you are curious, here’s one (for $37,837,510.45).

Update #2 (Sept. 30, 2015): And now we know how much it cost Plaintiff Great Lakes Gas in attorneys’ fees to fight in the case, described below, for six years (over $5.1 million). Whose pocket should that come out of? Whose pocket will it come out of? Stay tuned….(I bet I could have done it for less than $5 million.) 

Update (Sept. 30, 2015): The previous “Pyrrhic post” was about a trial win that probably cost more than the plaintiff was able to recover.

The case discussed below falls into the other category: a case where it looks as if an investment of millions of dollars of lawyer time was cost justified.

The recent trial in a case that went for nearly six year resulted in a jury verdict (after 90 minutes of deliberation) that the applicable discount rate was 4.30%. As discussed below, this did not give Minnesota Litigator the slightest clue of what kind of money they were fighting over. This past week, however, we got our answer: somewhere in the neighborhood of $36-37 million.

Update (August 19, 2015): The case, discussed below, was litigated for nearly six years. Trial on the last remaining issue, the appropriate discount rate, took one day. Jury received case at 11:09 a.m today and returned a verdict at 12:39 p.m. today, determining the discount rate to be 4.30%. I would be curious to know what the “swing” was — the likely range of the jury’s decision in dollars — to determine whether the half decade (and then some) of litigation was really worth it for the litigants. (I noted that plaintiff’s expert was $600/hour, incidentally and there have been 969 entries on the docket of this case since it was filed in October, 2009.)

Original post (August 17, 2015): For those of us Minnesota litigators with relatively small and legally unsophisticated clients, there is often a discussion early on in the attorney/client engagement about the high cost of civil litigation and the high uncertainty of civil litigation.

“What? You mean this could cost more than TWENTY THOUSAND DOLLARS???!!!” some potential clients will say, sincerely stunned.

“HUNH? We could lose even though THE GUY ADMITTED HE TORTED ME OR WHATEVER YOU CALLED IT???!!!” another potential client might cry out in confusion and despair.

Actually, it’s a whole lot worse than that. The more you study any particular legal dispute, the more complexity you find, and the more uncertainty you are likely to unearth.

“Hold on, Mr. Minnesota Litigator,” you counter, “What about a slam-dunk debt collection? You can’t guaranty a win even in one of those cases? You cannot guaranty or cap fees???”

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Lovis Corinth (an amazing artist you have never heard of)

Update (February 1, 2017): Regular readers might recall a recent post, below, in which Sorin, the plaintiff, submitted an exhibit on its own exhibit list for use at trial, to which St. Jude, the defendant, objected. The trial judge (U.S. Dist. Ct. Chief Judge John R. Tunheim (D. Minn)) agreed with St. Jude that the evidence was irrelevant.

Then St. Jude offered this same evidence at trial and Sorin not only objected to the evidence but, after Sorin lost, it argued that introduction of the evidence tainted the trial and required a new trial.

St. Jude’s forceful (if predictable) response is that the Court committed no error in admitting the evidence and, even if the Court did, this hypothetical error falls far short of the “heavy burden” to require a new trial.

Minnesota Litigator predicts that Sorin will lose its motion for a new trial. The most persuasive part of St. Jude’s response memo is its first line:

After an 11-day trial involving testimony from sixteen witnesses … and the admission of over 190 exhibits, a twelve-member jury unanimously found in favor of Defendant St. Jude Medical S.C., Inc. (“SJM”) on every claim Plaintiff asserted.

Trials, like legislation, and like sausage-making, are messy processes. We need to be vigilant, we need to apply sound guidelines, and we need to dress appropriately, but if we over-do it, we’ll never get anything rendered, passed, resolved, or, for that matter, barbecued.

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Minnesota Litigator generally avoids covering stories that other larger news outlets are covering because we do not have the resources to cover such stories like the bigger players. Our “coverage,” therefore, is too often simply echoing what others have written.

University of Minnesota law Prof. Painter’s lawsuit against Pres. Trump is such a story. Since the Star Tribune makes a general habit of not linking to court filings, however, we provide a link to it here.

For Strib coverage of the story, go here.

The following is a guest-post by Mikael Merissa:

“When someone shows you who they are, believe them the first time.”

– Maya Angelou

Consistent with his campaign promise to ban Muslims from entering the United States until we “can figure out what’s going on,” President Trump issued an executive order on Friday temporarily banning refugees and immigrants from seven Muslim-majority countries -Syria, Iraq, Iran, Libya, Sudan, Yemen and Somalia. No matter that those countries have not produced a single person linked to terrorism in the United States according the Cato Institute, or that Saudi Arabia (home to 15 of the 19 September 11 hijackers) was not included, perhaps because of Trump’s business interests there. And never mind that no class of immigrants on Earth are more stringently vetted than refugees. Or that Trump’s action will likely inspire generations of terrorists. A promise is a promise.

But in addition to being bad policy, the order is illegal. The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin. Trump’s executive order has also resulted in the violation of the Fourteenth Amendment’s guarantee of due process and equal protection. On Saturday night, U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union on behalf of two Iraqi men who were detained at John F. Kennedy International Airport on Friday after Trump signed his order. Judge Donnelly held that absent a “stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order.” Three courts have since issued orders similar rulings.

But in the meantime, real people have been hurt by this malicious and ill-conceived order. 109 people were reportedly detained when their flights touched down in the United States, including an eighteen-month-old and an Iraqi translator who risked his life to help American soldiers during the war in Iraq.

Until all of this shakes out, this Minnesota immigration lawyer has three pieces of advice for Legal Permanent Residents (LPRs), commonly known as green-card holders:

(1) Adjust your status to that of U.S. citizen. Don’t wait, apply today.

(2) Cancel any plans to travel outside the United States.

(3) Don’t commit any crimes! If you’ve had a few too many (which is understandable in these times) call a taxi (or an Uber, or another ride-sharing service).

For green-card holders and U.S. citizens alike, we can do the following:

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Making products to kill human beings involves some complicated issues.

First, humans can be clever and hard to kill.

Second, as a general rule, we humans are not supposed to kill one another.

The first challenge is a technical challenge.

The second challenge is a legal, moral, and political challenge.

The recently filed complaint of Orbital ATK v. Heckler & Koch GmbH (in U.S. District Court for the District of Minnesota) seems to grapple with both challenges.

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Many of us think that when litigants win an award of money in court, they actually get the money. All of the money.

Most understand that the government does not just cut a check to a winning plaintiff against a losing defendant and then chase the defendant  for reimbursement (though that’s an interesting idea and we wonder if such a system exists anywhere on earth).

Many might imagine that, after a plaintiff wins an award of money, the judge orders the defendant(s) to pay the plaintiff. Many imagine that “the justice system,” plays an active and on-going role in getting defendants to pay up on judgments against them.

Not so. In our justice system, if the defendants are uncooperative, it is the plaintiffs and not the court system who have to spearhead “collection efforts.” These efforts can take months or years. These efforts can cost a lot money and sometimes more than the amount of the judgments themselves. These efforts are sometimes futile dead ends. As we have lamented before, our justice system more often than not falls far short of making meritorious plaintiffs whole.

If it takes years and tens of thousands of dollars to collect on debts, then our legal system is, of course, useless to help citizens collect relatively small debts.

Fortunately for “judgment creditors,” however, the Minnesota Supreme Court issued a ruling this week that will give them a tiny boost in their recovery efforts.

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There are almost no advocates in our country or, for that matter, in any industrialized country on earth today, that do not recognize (1) the great strengths of free market capitalism, on the one hand, and (2) the impossibility of unregulated free market capitalism on the other hand.

Regulation is a given. The ubiquitous and spirited disagreements about regulations are matters of degree: how much regulation is too much? We are the same way about “free speech” — universally embraced but not entirely free and hotly disputed at the outer limits (e.g., “flag-burning”)).

And just as we all have to put up with a lot of sickening speech out of respect for our ideal of “free speech,” we have to put up with relentless scamming out of respect for free market capitalism.

We received a recent mailer whose duplicity appalled us.

Is there really no possible regulation and no realistic recourse against devious and shameless hucksters? Must we allow such things as unavoidable and inseparable aspects of our economic system?

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In 1979, Dustin Hoffman and Meryl Streep starred as a divorcing couple in Kramer vs. Kramer, the heart-rending story of a custody battle. The recent Minnesota case of Kremer vs. Kremer, in contrast, is about mere money.

If you are married, think back to those exciting days just before your wedding — the catering crisis averted, the anxiety over whether the crazy relatives (or exes) will show up, the quiet dreamy unreality of the minutes and hours before one of your life’s most momentous events…

Did you have a “destination wedding”? If so, maybe many of those hours were spent stressing out over weather reports, logistics, and coordinating travel schedules and other details?

But if you were Michelle Beth Kremer in March, 2001, I suspect the antenuptial agreement that your fiancé handed to you three days before your destination wedding in the Grand Cayman Islands (several friends and family already en route) was particularly memorable.

Talk about a buzzkill!

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David Schlesinger, an employee rights lawyer for the Minneapolis employment powerhouse law firm of Nichols Kaster published a remembrance of his lawyer father this week in MinnPost.

Attention Minnesota Civil Litigators (and those who love them): If you have not read it, go read it.

The punishing expense of civil litigation, the inherent arbitrariness and uncertainty of it (and, thus, the injustices we witness from time to time), the moral ambiguity of it (at times), can be dispiriting for those of us (most of us, I’d say) committed to making a meaningful and positive difference in our work.

In our darker moments, our efforts for our clients might seem mundane or trivial in the grand scheme, or even worse, pointless. Mr. Schlesinger’s article highlights how our work, even if not always glamorous or headline-worthy, can be nothing short of inspiring, heroic, and deeply gratifying.

If you find yourself thinking about objecting to the admission of evidence at trial because it is not “the best evidence,” close your eyes, take three slow long “cleansing” breaths (in for count to 4, hold for 2, out on a count of 6), and think again.

If you find yourself appealing a bad result at trial based on a court’s denial of your “best evidence” objection, be prepared to lose your appeal (or at least that part of it).

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