As regular Minnesota Litigator readers (or people who are generally conscious of current events nationwide and worldwide) know, human society is convulsing with change in the realm of sexual mores. As bizarre as it seems, some men and women have radically divergent feelings and ideas about what is “consensual sex” versus what is “sexual assault” (related posts: here, here, here).

While many of us might find it dumbfounding that two people could engage in intimate sexual contact, one sincerely believing it is consensual and the other sincerely believing that it is not, most of us if not all of us understand and appreciate more common/more subtle interpersonal/social disconnects (e.g., “Stop yelling at me!” “I am not yelling at you.”).

In Doe v. University of St. Thomas (“UST”), now pending before the U.S. District Court for the District of Minnesota (Tunheim, J.), “[John] Doe does not dispute that Jane Doe did not verbally consent to [his] digital penetration [of her vagina]. Doe alleges, however, that Jane Doe did not object to removal of her pants and that Jane Doe stroked his penis, which Doe interpreted as consent to the digital penetration.”

The police did not prosecute Mr. Doe but UST suspended him as a result of this incident. And then Mr. Doe sued UST for:

(1) Declaratory Judgment under Title IX (Count I); (2) Violation of Title IX – Erroneous Outcome (Count II); (3) Violation of Title IX – Deliberate Indifference (Count III); (4) Breach of Contract (Count IV); (5) Breach of the Covenant of Good Faith and Fair Dealing (Count V); and (6) Negligence (Count VI).

UST brought a motion to dismiss John Doe’s complaint, which Judge Tunheim granted, in part, and denied in part. Judge Tunheim threw out all of John Doe’s case (some for good and other claims, “without prejudice”) except the judge allowed Mr. Doe’s claim of negligence against UST to go forward.

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Photo by Jonathan Rotondo-McCord

Every day, heated controversies force businesses and other large institutions to utter public statements. Here, below is a statement that Macalester College released last November in response to litigation brought by Kristin Naca, a fired Macalester professor:

Kristin Naca’s employment at Macalester was terminated as the result of a serious violation of the college’s policies relating to Title IX protections, following a complaint about her conduct with a student, and was not in any way related to her work as a teacher or writer. The decision to terminate her employment came after an intensive investigation that included proceedings before an elected faculty committee. Unfortunately, Naca’s response to these findings by Macalester and her faculty peers has been to attack, intimidate and retaliate against the survivor who brought forward the complaint. Macalester condemns Naca’s ongoing actions in the strongest possible terms and intends to vigorously defend against her claims in court. We will continue to enforce our policies and to do all in our power to create a safe environment for our students. We will also continue our strong commitment to diversity in our hiring and retention practices.

Ms. Naca is apparently seeking to amend her complaint to add claims for defamation based on the underlined words.

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ESI is “electronically stored information” or digital data. The relatively new reality of U.S. litigation is that some degree of knowledge of ESI is critical for every legal matter for every lawyer.

“E-discovery” is a particularly nasty sub-part of the ESI beast; it is the management of ESI in litigation — that is, in the adversarial context where opposing counsel will exploit false steps, slips, and lapses with a vengeance.

We came across a 35-year veteran large Minneapolis business litigator this past week who said that “e-discovery” is the single worst development, as far as he is concerned, over the span of his entire career.

Have a look at the linked ESI protocol from the monster-of-a-case of St. Jude vs. Muddy Waters (previously discussed here). The protocol has some interesting bits negotiated by some of the country’s most sophisticated lawyers, law firms and, presumably, their in-house IT experts (or specially retained outside vendors).

Note:

Within 45 days of requests for production being served, the producing party shall propose a list of search terms to use in locating responsive material. The requesting party may propose additional terms, and the parties shall confer in good faith to finalize a search term list.

In our experience, it is the requesting party that has been first responsible for devising a list of search terms. But it makes sense that the producing party and not the requesting party — the one with superior knowledge of the data being searched — should generate the search terms in the first instance.

Putting aside the interesting pointers that this protocol gives all civil litigators, looking at the complex technical details, we also wonder out loud, “How is a solo lawyer or a small non-technologically outfitted law firm supposed to deal with ESI?”

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Previous Minnesota Litigator “Tales from the Trenches” posts have been first-person narratives — mundane trials and tribulations of LEVENTHAL pllc.

This trench-tale is second-hand.

Last week, the trial of C.H. Robinson Worldwide, Inc. v. XPO Logistics, Inc., et al., started before Hennepin County District Court Judge Ronald Abrams. C.H.Robinson claims misappropriation of trade secrets and violation of its non-competition agreement by several individuals and XPO, the corporate defendant.

One defendant invoked the Fifth Amendment in response to particular questions posed to him and this has complicated the case. As civil litigators know, the fact that someone invokes the Fifth Amendment can be brought to the jury’s attention and courts often give the jury an instruction about it. The court tells jurors that they can draw an “adverse inference” when a witness refuses to answer a question in a civil trial by invoking the Fifth Amendment.

On the other hand, there is some tension between one party’s Fifth Amendment rights and other parties’ rights to a fair proceeding, so courts have held that there are certain limits on when a court in a civil case may give an adverse inference instruction that accompanies a witness’s invocation of the Fifth Amendment. Also, courts must craft the specific words of the adverse inference instruction with care.

At the start of the C.H. Robinson v XPO Logistics trial, the dilemma of how to handle one party’s taking the Fifth was unresolved. The various lawyers were not on the same page as to how to proceed. So when Plaintiff’s counsel nevertheless made a reference in his opening statement to the jury to a court instruction about the adverse inference, other lawyers objected, and this resulted in the judge finding a mistrial.

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Having just posted on litigation funding, we got an email the very next day:

Hi there,

I discovered your practice through the mentioned matter and believe we are well-aligned to help one another moving forward.

For context, I represent XXXXXXXXX, a litigation funder. We invest in commercial cases that are historically too small (values of $1M to $10M), which in turn has created a new resource for savvy firms.
Attorneys often approach us when their clients are in need of capital — either to cover their fees, out-of-pocket costs like experts, or whatever necessary to either take the case or keep it in-tact.
Please let me know if you’re interested in learning more about receiving capital for a current or future case or have any questions about litigation finance. 
I look forward to hearing from you.

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Photo by Jonathan Rotondo-McCord

We have repeatedly warned Minneota litigators and litigants that courts really hate to undo settlements (most recently, here).

This lesson was taught again this week in Rocco v. Khan in which a neighbor’s property dispute was resolved in a settlement conference, put on the record at the Ramsey County District Court, and, after that, the defendant, Mr. Khan thought of another issue that he wanted resolved as part of the settlement.

The practice pointer here is NOT to avoid “buyer’s remorse,” which may or may not have happened in Mr. Kahn’s case. There is little one can do to avoid this common and unfortunate behavior. Rather, we note that Mr. Kahn was not personally present in the courtroom when the settlement was put on the record. That is a no-no.

The Minnesota Court of Appeals decision does not explain where Mr. Kahn was or why he was not present. Perhaps there was some emergency or other explanation that made his absence unavoidable. On the other hand, as a matter of “best practices” and, for lawyers, as part of their firms’ risk management, make sure your client is present (and cognizant) when you are settling his case.

Shumway Hall, Shattuck-St Mary's School, Faribault, Minnesota, photo by Jonathunder

Shumway Hall, Shattuck-St Mary’s School, Faribault, Minnesota, photo by Jonathunder

Update (February 16, 2017): As predicted (and as urged) below, this case settled before trial. Although many lament the paucity of civil trials in current U.S. law, this lawsuit was one of many, if not most, where settlement seems a better result than the expense, uncertainty, and stress of trial.

Original post (November 18, 2016)Regular Minnesota Litigator readers already know about the Shattuck-St. Mary lawsuit, which owes its origin to the bizarre sexual misconduct some years ago by Lynn Seibel, a former teacher at the school.

This week U.S. District Court Judge Ann D. Montgomery (D. Minn.) issued the Court’s “Notice of Assignment of Case for Trial” (snarky proposed edit: “Notice of Trial”?) setting a Monday, February 6, 2017 trial start date.

Young civil litigators might want to review the notice to learn (or remind themselves) of what is required before trial and when it is required. The various filings required before trial (witness list, exhibit list, deposition designations, jury instructions, etc.), particularly for a trial like this which is scheduled to be a 20-day trial, demands a lot of work.

The notice also prompts me to raise the question of whether the rarity of civil trials in the United States is a good thing or a bad thing. As pointed out in the linked article, Sr. U.S. District Court Judge Jed S. Rakoff (S.D.N.Y.) seems to think it is a bad thing.

Even in civil lawsuits that have not settled by the time these pretrial submissions are due, I believe that more than 50% settle before trial. This is just my hunch, but I bet the statistic is pretty close to 50/50.

What do you think is best for the students victimized by their former teacher, the Shattuck-St. Mary’s School, and the public in this particular case?

In my opinion, in cases like this one (and in most cases), there is no question but that the best outcomes are negotiated settlements rather than trials.

The Plaintiffs would be spared the stress and deep discomfort of reliving their past experience in an open courtroom.

Shattuck-St. Mary’s would undoubtedly prefer to avoid trial, the expense and the negative publicity, as well.

As for the public interest, I would expect it in this lawsuit to be low. This case does not raise any novel legal issues. Trial, regardless of outcome, would unlikely have any meaningful impact on school policies, on deterring unlawful conduct, or on educating our children to minimize or avoid such risks. And, of course, there is a general public interest in minimizing the substantial expense that trials impose on our court systems.

The Plaintiffs have suffered injuries in this case that are plainly incalculable in terms of money. Step back and think about it for a moment: asking a jury to set dollar amounts for their injuries is absurd. Putting a jury through 20 days of trial, bombarding jurors with documents, witness testimony, and expert testimony and then asking the jury to fill out damage awards on verdict forms is “imprecise,” to put it mildly.

In my opinion, Judge Rakoff’s point is not that trials are better than settlements but that, given the cost of civil litigation, both trials AND settlements are unattainable for most Americans in most legal disputes. And there is no doubt he is right about that.

Finally, though, in contemplating trials, only a fool ignores the inherent and extraordinary uncertainty of all trials. Remember Jesse “Show Me The Money” Ventura, who enjoyed a $1.35 million jury verdict until his win was erased on appeal and now he’s fighting imposition of costs against him for over $50,000?

This is all by way of saying that I predict this case will settle before trial and, for all concerned, I hope it does. The parties have agreed on mediation before Greg Weyandt, a respected and well-known mediator, in December.

“Champerty” is “an agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigant’s claims as consideration for receiving part of any judgment proceeds.”

Sound familiar? Ever heard of a “contingent fee agreement”?

Contingent fee litigation, in which lawyers recover for their time by taking a percentage of the litigant’s recovery is NOT considered “champerty.” Apparently, lawyers are not considered “strangers” to the lawsuits in which they claim a contingent fee interest. That is convenient. No one questions the legality and propriety of lawyers’ contingent fee agreements.

The general purpose of the law against champerty…is to prevent officious intermeddlers from stirring up strife and contention by vexatious or speculative litigation which would disturb the peace of society, lead to corrupt practices, and pervert the remedial process of the law. In other words, the prohibition on champerty and maintenance is aimed at discouraging intrusion for the purpose of mere speculation in the troubles of others.”

But wait. Hold on. When a court steps in to void a contract between two sophisticated private parties, who’s the officious intermeddler again? “Stirring up strife”? “Vexatious litigation to disturb the peace”? “Intrusion in the troubles of others”? Give us a break. None of these characterizations correspond, even remotely, to reality.

In reality, the controversy of “litigation funding” is all about money and has nothing to do with trouble-making.

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Minnesota Litigator focuses primarily on news and comments about Minnesota civil litigation but we recently focused on the bigger picture of “dual federalism” and “subject matter jurisdiction.”

Now we look at another important issue: “personal jurisdiction.”

Since 2013, at least, we have argued that “U.S. jurisprudence on personal jurisdiction leaves something to be desired and the law needs an update.”

In a nutshell, the personal jurisdiction test looks at whether a defendant “purposefully availed itself of the privilege of conducting activities in [a particular state] and should, therefore, reasonably anticipate being haled into court therefore…” This analysis is circular, vague, and, in many cases (like this linked one), it seems, arbitrary.

According to our courts’ analyses, the answer to the “purposeful availment” question helps determine whether asserting personal jurisdiction “offends traditional notions of fair play and substantial justice.”

It is hard to articulate a more ambiguous, indefinite, and amorphous standard.

Also, as we argued previously, relying on “traditional notions” seems to be willfully oblivious to dramatic technological changes in our world. Forcing a Florida resident to litigate in Minnesota (or pick any other two states) is for obvious reasons much less onerous, “unfair,” and “offensive” in 2017 than it was in 1800 (or 1925, or even 1970, for that matter).

The question in Bristol-Myers Squibb Co. v. Superior Court is whether a non-California plaintiff can now bring a lawsuit against a non-California defendant in California state court consistent with the limits of the U.S. Constitution on personal jurisdiction.

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Mobile Homes, New Ulm, MN (1974)

Congratulations to Minnesota litigators, Valerie Sims, Jeffer Ali, and Nathan Louwagie for their dogged representation of manufactured home residents in an on-going class action against the City of Burnsville.

Dakota County District Court Judge Colleen G. King delivered manufactured home residents and their lawyers a resounding win today (reserving for another day whether the Court will impose sanctions, as well, on Burnsville and/or its lawyers). We link the 45-page decision here but you can read excerpts below.

Perhaps the most stinging criticism Judge King’s opinion: “Burnsville made an intentional decision to establish a proactive code enforcement process because of the number of ‘ethnically diverse’ people moving into the city and that they ‘do not know how to take care of their property’ because it is ‘not in their culture.'”

In Judge King’s opinion, we are left to wonder whom Judge King was quoting in that passage. On further investigation, we learn that the quotes are public (and recorded) statements by Burnsville elected officials in 2012 (Burnsville’s mayor, Elizabeth Kautz, and Mary Sherry, a Burnsville City Council member).

More excerpts after the break…

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