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?


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!


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).


Minneapolis Star Tribune File Photo

I never met or knew Larry Leventhal and I am pretty sure we are unrelated. But for my twenty years of practice in civil litigation in Minnesota, I have gotten telephone calls intended for Larry. Once, a judge told me, “You look like your father,” thinking I was Larry Leventhal’s son.

A few times, over the years, I reached out to Mr. Leventhal, hoping to get to know him because I had learned of his long history of activism on behalf of Native Americans and dedication to progressive causes, Unfortunately, I never had the chance to meet Larry. I am sure he had many more important things to do than meeting up with me, a stranger who only shared the same last name, the same profession, and, perhaps, a similar sense of justice.

I note in Mr. Leventhal’s obituary that U.S. District Court Judge Michael J. Davis is quoted as saying, “What we need is 1,000 more Larry Leventhals” and I would think this is all the more pressing in our current political climate.

There are few clichés more common in our civil litigation system than the reviled “trial by ambush.” Basic requirements of our legal system are orderliness and predictability and there are not supposed to be “surprises” at trial.

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Analogize to a boxing match (or any adversarial “dispute resolution” forum). You have got to have rules — when the fight starts, how it is decided, permitted equipment, prohibited maneuvers, etc. The better boxer will not prevail against the adversary who punches him in the back of the head before the first bell.

The case of Fagen v. Exergy, which we have covered at some length, has seemed to be a symptom of a flawed, if not broken, “dispute resolution” system. While the case involves a failed multi-million dollar wind energy project, it does not seem to have involved particularly complicated facts or law. Nevertheless, the litigation has been protracted and expensive.

Most recently, on the courthouse steps, it seems that Exergy has come up with previously undisclosed conclusory expert opinion and wants to argue a new legal theory.


On the Friday before the Martin Luther King, Jr. Holiday, the U.S. government filed its complaint against KleinBank charging the bank with “red-lining” in the U.S. District Court (D. Minn.).

Historically, “red-lining” was a practice by which lenders would avoid offering credit to majority-minority neighborhoods. In our economy, cutting off access to credit, whether both individuals or businesses is tantamount to cutting off oxygen.

Paradoxically, it simultaneously seems unbelievable and obvious that, historically, in the United States racism trumped the profit motive for many lenders. But, in the present day, could this really still be the case?


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.

Take the time to read through the fact-finding and legal conclusions in an attorney discipline action brought against Minnesota lawyer, Michelle MacDonald and you will find see a model of contumacy (“stubborn and willful disobedience to authority”).

You will see a licensed Minnesota lawyer who appears to believe that the Minnesota legal system is illegitimate and not entitled to any respect.

You might also conclude that you see disruption and defiance, which, if allowed in our legal system, would destroy it.

And you will not see an isolated example of misconduct. You will see a pattern of willful defiance of courts’ authority. You will see multiple instances of counter-productive defiance, obstruction, and willful non-cooperation.

What do you think the discipline should be for the conduct described by the referee presiding over the petition for disciplinary action?


everclear2 College PartyingUpdate (January 10, 2017): I criticized plaintiff in the case described below for including a claim for intentional infliction of emotional distress (“IIED”) as “going too far” but, as shown on pages 20-23 of the linked Order from U.S. District Judge Patrick J. Schiltz (D. Minn.), the claim survived Defendant Carleton College’s motion to dismiss (barely).

Judge Schiltz assumed for purposes of deciding the motion that Carleton College “coerced” the Plaintiff to confront her alleged rapist “one on one,” and Judge Schiltz held that such conduct, if proved, could be found “extreme and outrageous,” “intentional or reckless,” and found to have caused the Plaintiff “severe emotional distress.”

I get that. I will go farther. I will agree with that. So I agree that plaintiff’s IIED claim should have survived a motion to dismiss. On the other hand, I find it unfathomable that Carleton College would “force” or “coerce” a student to one-on-one meeting with her accused rapist. The definition of “coerce” is “to persuade an unwilling person to do something by using force or threats.” In my view, “force” or “coerce” cannot be synonyms for “encourage,” “urge,” or “persuade,” — all of which might have been unreasonable approaches (if this is what happened) but not “atrocious” IIED, imho.

On the other hand, the result of our recent national election is unfathomable to me. But it happened.

Original post (May 16, 2016) (under the headline: Shank v. Carleton College: Drafting a Complaint, Threading a Needle, Striking a Balance): I recently high-lighted a multi-million dollar contract case where the Plaintiff’s complaint was a mere six pages. In many posts, over the years, I have noted excessively long complaints, which are annoying to courts and ineffective as advocacy (here is an example; here is another).

The is no magic answer. There is no “optimal” complaint length. Different cases call for different strategies. Does Elizabeth Shank help or hurt her case against Carleton College for its response to her alleged rapes with a recently filed 49-page complaint? Is the complaint drafted as a public document for the general public or for the court? (The case has been assigned to U.S. District Court Judge Patrick J. Schiltz (D. Minn.) who is not a fan of sprawling complaints.)

As for the merits of Ms. Shank’s lawsuit, time will tell. As a Carleton grad and Carleton dad, I suppose I won’t be on the jury. Admitting my bias, I think that Plaintiff does herself no favors by adding a count for intentional infliction of emotional distress against the school (see p. 43). Suggesting that the college intentionally caused her “physical injury and severe mental and emotional distress” seems to me to go too far.

Whether it is Carleton or any other college, such allegations are unfortunately predictable and colleges are stuck between risks of lawsuits by alleged perpetrators and alleged victims (here is a complaint against Macalester College by an accused perpetrator).