Lawyers acting for the personal representative of Prince (whom we will call “Prince’s lawyers” for convenience) have their sights on Mr. George Ian Boxill, a mixing and recording engineer, who allegedly had five unpublished Prince recordings when Prince died in April, 2016. The recordings, Prince’s lawyers contend, belong to Prince’s estate, not to Boxill, and they demanded their immediate return, damages, and their attorneys’ fees.

From papers in the lawsuit, it seems like Prince’s lawyers have a winning case here. They already have a court order for Mr. Boxill to return “all recordings acquired through Boxill’s work with Paisley Park Enterprises, Inc., including original recordings, analog and digital copies, and any derivative works, to Plaintiffs’ counsel.”

Unfortunately for Mr. Boxill, the “return process” has not been very smooth. Now, Prince’s lawyers seek to have Mr. Boxill and his related companies held in civil contempt for their alleged failure to abide by the court’s return order.

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Update (July 14, 2017): The Minnesota Supreme Court has granted plaintiff Staffing Specifix’s petition for review, in part (in connection with the case discussed previously (below)). (Linked here is the petition and linked here is the order granting it in part.)

The only issue to be addressed by the Minnesota Supreme Court (in the words of Staffing Specifix appellate lawyers):

After the trial court concludes a contract is ambiguous and if it is not one of adhesion, must the jury be instructed as to which term or terms are ambiguous and the jury is to construe ambiguous terms against the drafter only as a last resort if the parties’ mutual intent cannot be determined from the evidence and does the failure to so instruct constitute prejudicial error?

This must be one of the least comprehensible sentences we’ve read in a while.

The basic question is this: in a dispute over an arm’s length negotiated contract (a.k.a. “a non-adhesion contract”), in which the trial judge concludes that a contract term is ambiguous, is the following jury instruction is appropriate?

If you find the contract is ambiguous, you should determine the intent of the parties.

When contract language is reasonably susceptible to more than one interpretation, the ambiguous contract terms are to be construed against the drafter.

The Court of Appeals held that this instruction was reversible error “because it allowed the jury to construe the contract against the drafter, despite evidence of the parties’ intent.” It seems to us that the Court of Appeals got this one wrong and, presumably, at least someone on the Minnesota Supreme Court seems to agree.

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A Disemboweled Meat Grinder

Update (July 12, 2017): The linked decision of the Minnesota Supreme Court reverses the lower courts’ rulings in favor of the product liability defendant.

This “close case” is a major win for Minnesota product liability plaintiffs and, as stated in our previous post, below, one that we had been rooting for.

Justice Gildea’s dissent powerfully argues that the manufacturer could not have foreseen the employer’s and multiple employees’ multiple mis-steps (and OSHA violations). “The majority essentially imposes a duty on manufacturers to design an ‘accident-proof or fool-proof’ product,” Justice Gildea concludes, a duty that our law does not impose. (Maybe it should?) (more…)

Update (July 12, 2017): Tenacious Fox and friends clawed back victory on appeal for their client, St. Jude.

St. Jude won at trial against a former employee, Heath Carter, and St. Jude’s rival, Boston Scientific, but then Hennepin County District Court Judge Susan Burke snatched away the win by denying St. Jude its claims for injunctive relief and for attorneys’ fees.

This week, the Minnesota Court of Appeals flipped the trial court on this key issues in a published opinion.

Original post (July 21, 2014) (under the headline “Another Win for St. Jude Medical, Ed Fox, & His Team at Bassford Remele”): Mess with a bull, you get the horns. Mess with a fox, and I suppose you get the teeth.

Minnesota Litigator has covered the St. Jude case against Biosense and Jose de Castro in several earlier posts (here and here, for instance). Not all the posts have been fawning and complimentary but one must give credit where it is due.

Congratulations for Ed Fox and his team from Bassford Remele on a recent win in this protracted dispute. ANOTHER WIN, that is. (Earlier run-ins with Fox & friends that did not work out well for their adversaries may be noted here and here.)

Photograph by Maura Teague

Travis Schurhammer was badly hurt in a snow-mobile accident. An employee welfare benefit plan (“the Plan”) took care of Mr. Schurhammer’s significant medical bills (over $150,000). But the Rochester-based law firm of O’Brien & Wolf took on Mr. Schurhammer’s personal injury case against other third-parties (two insurers) on a contingent fee basis and got a gross recovery of $800,000 for Mr. Schurhammer.

Does it seem right that the Plan should be reimbursed every penny that it paid for Mr. Schurhammer’s care out of Mr. Schurhammer’s recovery without paying a penny for O’Brien & Wolf‘s work? To be clear, if the Plan does not pay any share of Mr. Schurhammer’s legal fees and costs, Mr. Schurhammer, the badly injured personal injury plaintiff, effectively pays for all of the law firm’s legal fees and costs out of his own pocket. In fact, there are cases in which the injured plaintiffs end up with no recovery (or even “in the red” – a “negative recovery”) because the Plan is paid off first and then the contingent fee law firm.

To whom does this make sense?

 

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The more things change, the more they stay the same. From the linked annual report of the Lawyer’s Professional Responsibility Board, we learn that 2016 was quite similar to previous years in terms of the number of complaints, the nature of the complaints, and the nature of the discipline imposed (ranging from disbarment at one extreme and “private admonition” at the other). There was a slight up-tick in the severity of discipline applied (“Calendar 2016 was also a year for higher than average public discipline with 44
attorneys receiving public discipline, down from the prior year record high of 65 attorneys receiving public discipline. An “average” year for public discipline is 36…”).

Of potential interest, we note that there was significantly more discipline of lawyers with 11-20 years of practice than those with 0-10 years of experience. This might surprise some readers. It might be caused by greater caseloads by more experienced lawyers (and therefore greater risk of negligence) or maybe by older lawyers not keeping up with new technologies which affect community standards for things like diligence or communication?

And can you guess what areas of practice trigger the most complaints against lawyers?

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All litigators know that judges often write their opinions as if they are not issuing from the judges but from “the court.” This makes sense because we believe our system to be guided by laws, not by people. Thus, it might seem inconsistent and inappropriate for a judge to write something like: “I don’t believe Defendant. I think he is a liar. Accordingly, I grant judgment to Plaintiff.” Rather, judges write things like this: “the court finds [Defendant’s] testimony to be unbelievable in its entirety,” maintaining the illusion that decisions in legal matters are not personal decisions but are impersonal juridical pronouncements.

On the other hand, we all know that our court system is run by people and there is a difference between “the court” and “the judge.” Judges exercise judgment. Courts do not.

We get a glimpse of the distinction when we note the difference between the administrative work of courts versus the decision-making work of judges.

Court personnel do not decide cases. In fact, an important sense, they don’t decide anything. They simply and blindly follow directions. They have no discretion.

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Update (July 3, 2017): In the original post, below, we pondered the conundrum of Anibal Sanchez, who testified that he was an illegal immigrant in the context of his workers’ compensation retaliation lawsuit against his former employer, Dahlke Trailer Sales. Sanchez’s admission put his employer in a tough spot.

Sanchez was suing Dahlke seeking reinstatement but, under federal law, Dahlke would be subject to civil and criminal liability for reinstating Sanchez. In the original post, we questioned whether the Court of Appeals had “side-stepped” this conflict. This past week, the Minnesota Supreme Court held that the intermediate court of appeals got it right. There was, however, a strong dissent by Justice Anderson, joined by Chief Justice Gildea and Justice Stras.

For whatever it’s worth, we think the case is an extraordinarily difficult one but the majority, in our view got it right. While the dissent is correct that the employer’s obligations under the federal law and the state law are irreconcilable as a practical matter, the majority is correct that subjecting employers to the state law arguably (if paradoxically) supports rather than undermines the federal law because it gives a disincentive to hiring illegal immigrants.

The Minnesota Supreme Court majority’s decision is convoluted and it will be unpersuasive to many. This is paradoxically appropriate. Our country’s immigration policy is an incomprehensible M.C. Escherian funhouse of mirrors, trap-doors, ladders, stairs, improvised invisible walls promised but never to be built. Under the circumstances, it seems fitting that employers should be prohibited by law from knowingly employing illegal immigrants but required by law to treat them fairly when they do.

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We will resume our posts next month.

Thank you, as always, dedicated readers — for your comments, quibbles, queries, and tips, all of which we deeply and sincerely appreciate — even the blistering critiques we get from time to time.

(All professionals must be able to tolerate, if not treasure, sincere and thoughtful criticism.)

Keep it coming! Keep on reading! Keep on tipping!

 

Close readers of Minnesota Litigator might have noticed a shift from the first-person singular pronoun to first-person plural. As posted May 1, LEVENTHAL pllc recently doubled in size . We officially became “us,” you might say. And at the end of that post, we promised, “A more formal introduction to follow in days to come.” This is it.

Brandon Meshbesher, a Minnesota native, graduated from the University of Denver in 2012 with a B.A. in English and Political Science. He graduated from the University of Minnesota Law School with his J.D. in 2015. He is a member of the Minnesota state bar and is also admitted to practice before the U.S. District Court for the District of Minnesota. After law school, Brandon worked as a Bridge Fellow for United States District Judge Susan Richard Nelson (D. Minn.) and as a Law Clerk to the Honorable Michele A. Davis in Wright County, Minnesota.

We are extraordinarily fortunate and grateful for the opportunity to work with Brandon. We could go on at great length as to his many gifts and strengths but, as those who know Leventhal well, such testimonials often leave us verklempt and we are too busy for that. Suffice it to say, if you know Brandon, you know how fortunate LEVENTHAL pllc is to be associated with him; and if you don’t yet know know Brandon, we hope you get the chance some day soon.