Recurring Minnesota Litigator character, Peter Nickitas, originally received his moniker, “Extreme Caution,” from Avvo, the on-line legal services scam “marketplace”, but Avvo has changed its format.

Avvo no longer provides this warning for Mr. Nickitas. Avvo does, however, still refer to Mr. Nickitas’ four separate suspensions from the practice of law (two in Minnesota and two in Wisconsin). (These might be “doubles.” It is possible that the two states disciplined him reciprocally. In other words, four suspensions may have arisen from two violations.) Could it be that judges, courts, and ethics boards tire of disciplining particular lawyers after a while?

Mr. Troy Scheffler is a former debt collector who has filed many lawsuits against debt collectors in this district alleging violations of the Fair Debt Collection Practice Act (FDCPA). Represented by Mr. Nickitas, Mr. Scheffler brought an FDCPA class action against the Gurstel Law Firm (formerly Gurstel Chargo).

Notwithstanding “Scheffler’s argument made during the hearing on this matter [(presumably argued by his lawyer, Mr. Nickitas)] that Gurstel ‘subliminally commanded’ him to call the number provided by putting it in bold type,” you will not be surprised to read that Sr. U.S. District Court Judge David S. Doty (D. Minn.) threw Scheffler’s case  out on summary judgment.

Judge Doty held that Scheffler’s telephone call to the Gurstel firm “was an unsubtle and ultimately unsuccessful attempt to provoke [a Gurstel employee] into committing an FDCPA violation.” Sound sanctionable to you?

Trying to set up a debt collector, trying to trick the debt collector into violating the law, and, when unsuccessful, suing the debt collector anyhow? A legal theory along the lines of original sin? Maybe the legal theory is that trying to collect a debt, by itself, should trigger liability?

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“A Tough Knot to Crack” (photo by Jay Fanelli)

Update (August 16, 2017): It is not every day that one sees both sides appealing a Minnesota Court of Appeals decision, each agreeing that the Court of Appeals got it wrong on the same issue. We have it in the SB&T v. LHD&L case, discussed below. (See here, here, and here.)

This is sweet vindication of our post below critical of the Minnesota Court of Appeal’s SB&T decision.

Update (May 19, 2017): This week’s published Minnesota Court of Appeals decision, Security Bank & Trust Co. (“SB&T”) v. Larkin, Hoffman, Daly & Lindgren, Ltd. (“LHD&L”) is yet another thread in Minnesota’s knotty jurisprudence on the appropriate accrual date of a legal malpractice case.

Mr. Gordon Savoie got allegedly bad estate planning help from LHD&L in 2009. The papers drawn up by LHD&L failed to include a provision for a generation-skipping trust or other mechanism to avoid a  generation-skipping tax. This lapse is alleged to have been legal malpractice.

Mr. Savoie died, SB&T became the personal representative and successor trustee to the estate, and, SB&T alleged that LHD&L’s negligence caused the estate a tax burden of $1.654 million.

So, the question before the court was when did the claim accrue? When LHD&L did the allegedly negligent work? When Savoie paid for it? When Mr. Savoie died? When the tax was imposed? When Mr. Savoie suffered “some damage” (or did he?)? When the trust suffered “some damage” (or did it?)? And when did Mr. Savoie suffer “some damages? When did the trust?

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Writs of certiorari are an important part of the appellate toolbox.

Writs of certiorari are their own kind of appeal, and they are not well understood by Minnesota litigators.  Certiorari matters are not like the usual civil case that starts in the district court and then proceeds to the appellate courts.  These matters instead start in front of a government official or body (like a state agency or a political subdivision) and then proceed directly to the Court of Appeals or, in the case of workers’ compensation and tax court appeal matters, directly to the Supreme Court.

There are three main kinds of certiorari appeals:

  • Chapter 14 “contested case” appeals,
  • Chapter 606 matters, and
  • Appeals from other matters which proceed by writ of certiorari under the Minnesota appellate rules (including appeals from unemployment compensation decisions, workers’ compensation decisions, and tax court decisions).

Chapter 14 and Chapter 606 matters are of greatest interest to me.

Chapter 14 provides for “contested cases.”   It says that certain kinds of challenges to state decisions are “contested cases” under sections 14.57 – 14.62.  These cases are heard by an administrative hearing officer from the Office of Administrative Hearings.  The hearing officer makes a final decision in the matter, or, more commonly, for some kinds of matters, a recommendation to a state department or agency official who makes the final agency decision.  The kinds of matters that proceed under Chapter 14 range from the simple to the very complex.  Matters that proceed under Chapter 14 include disputes about fair campaign practices, data practices, utility regulation, rights to special education services, regulated health care facilities and many kinds of state licensing matters.

Chapter 606 of the Minnesota Statutes makes some other kinds of government decisions appealable via certiorari.  Matters that are appealable under Chapter 606 are certain government decisions that are not appealable under Chapter 14 or other statutes.  These include appeals from certain political subdivision decisions (which are not subject to Chapter 14, since that chapter only addresses state agency decisions), and state agency decisions that do not require contested case hearings and therefore are not subject to Chapter 14.  To be appealable under Chapter 606, the government decision challenged must be “quasi-judicial,” and not “quasi-legislative.”  Many cases define the distinction, but broadly speaking, a quasi-judicial decision is one that applies a defined standard to facts found by the decision-maker, and not decisions that make policy.  Generally, a quasi-judicial decision applies to a limited number of people, and not to the public generally.  The kinds of Chapter 606 matters that may be appealed via certiorari, too, are very wide-ranging.  A few examples:  a city order requiring the destruction of a dog, a city decision designating buildings for historic preservation, and the denial of a police officer’s claim for health benefits under a state program.

A few things make certiorari appeals different.

First, they are initiated differently.  You have to first submit a petition for a writ of certiorari to the clerk of appellate courts.  Assuming your ducks are all in a row, the clerk issues a writ, which must then be served and filed along with the usual appellate documents like a statement of the case.

Second, the timelines are different.  Some certiorari matters must be initiated within 30 days, rather than 60 days.  A certiorari appeal will not be timely if the petition is not filed and the writ issued by the time to appeal.  This means that you must leave time to submit the petition and have the clerk issue the writ before the time to appeal runs.  Because of this, appeals by certiorari should never be left for the last minute.

Third, the standard of review is different.  The legislature entrusts certain decisions to state agencies and political subdivisions.  The appellate courts give those decisions the benefit of the doubt.  You need to understand the standards of review and how to address them to prevail in certiorari appeals.

Writs of certiorari present some opportunities and pose some pitfalls.  You need to understand both to use certiorari effectively.  Watch for more from me on this topic.

Sam Orbovich and I will be presenting on writs of certiorari at a MinnCLE webinar on Thursday, August 17, 2017, from noon to 1:00 pm.  Join us to learn more about certiorari appeals.

 

 

 

When out-of-state companies hire out-of-state lawyers with billing rates far beyond what lawyers cost in Minnesota and they seek an award of attorneys’ fees for winning a lawsuit (under a statute that provides for award of attorneys’ fees), our courts often punish them.

“You coulda/shoulda hired Minnesota lawyers,”.

Arguably, this is protectionism for Minnesota litigators — a government-sponsored nudge to “buy local.” On the other hand, if ABC Corp. pays $1,300 for something it can buy for $500, is it right for it to seek the higher amount for reimbursement? Lest we forget, this money comes from the state government coffers.

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William Shakespeare, Romeo & Juliet, Act III, Sc. 1.

Plaintiff Maria Ramirez-Cruz sued her former employer, Defendant Chipotle. Whether or not she was scheduled for work on particular days was relevant to the case.

Defendant Chipotle “initially withheld” scheduling information from its employee shift scheduling (via its computerized MenuLink system) “because it was inaccurate.”

Also, incidentally, the evidence on Chipotle’s MenuLink system was unfavorable to Chipotle. The information (or misinformation?) on MenuLink contradicted Chipotle’s assertion that Ms. Ramirez-Cruz was scheduled for work during a particular 3-day period.

U.S. Magistrate Judge Kate M. Menendez (D. Minn.) found that Chipotle’s lawyer’s behavior left “much to be desired” but did not meet the high bar required to impose sanctions. In reviewing Judge Menendez’s denial of the motion for sanctions, U.S. District Court Judge Ann D. Montgomery (D. Minn.) explained

[A]lthough “Chipotle’s approach to the discovery obligations imposed by the Federal Rules of Civil Procedure was not substantially justified, and ordinarily . . . would warrant the imposition of sanctions,” Judge Menendez concluded that sanctions were inappropriate under Federal Rule of Civil Procedure 37(c)(1) because counsel to Ramirez-Cruz were also culpable in unnecessarily multiplying litigation.

This is in the nature of an “unclean hands” equitable resolution (“A dirty dog will not have justice by the court“).

One might think of Judge Menendez’s denial of the motion for sanctions against Lawyer A as the imposition of a cross sanction on Lawyer B, also known as killing two birds with one stone.

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

We’ve covered the issue of fiery florid rhetoric and the distaste that courts generally have for it (“The Persuasive Force of Dispassionate Passion”).

The sequence of drafts of our own legal argument sometimes go like this:

Draft #1: In suggesting that XYZ case supports their position, opposing counsel and his nauseatingly deceitful client brazenly flout court rules, insult Your Honor’s intelligence, and, with staggering impudence, drag our justice system through the mud.

Draft #2: Opposing counsel and his less than honest client misrepresent the holding in XYZ case — a cynical (if obvious) effort to avoid their legal obligations.

Draft #3: Defendant’s (or Plaintiff’s) citation of XYZ Case is unpersuasive for these reasons….

Notice the subtle differences in tone in the three drafts? Unfortunately, we don’t always have time to edit out the over-the-top counter-productive drama from earlier drafts. We regret that when it happens.

Separately, we have also discussed “e-disgustery™” in previous posts to express our dislike of the excessive focus on “electronic discovery” in a lot of civil litigation.

These two themes often come together as they appear to have done in a pending FMLA lawsuit, Nekich v. Wisconsin Central (D. Minn.).

Civil litigators need to know that judges, in general, dislike both e-discovery disputes and hyperbolic outrage. Combine these two ingredients with great care (if at all).

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Shadrach's whistleUpdate (August 9, 2017): A significant win for Minnesota whistle-blowers this week! An employee who confronts his boss about his boss’ illegal conduct and, as a result, is fired may be considered a whistle-blower under Minnesota law. In light of a recent amendment to the statute, the “good faith” requirement for a whistle-blower does not mean that the whistle-blowing was intended to “expose illegality.”

Congratulations to Plaintiff Mr. Friedlander and his team of lawyers from Halunen Law, Nichols Kaster, and Apollo Law LLC.

Original post (December 2, 2016): This week, U.S. District Court Judge Susan R. Nelson (D. Minn.) certified a legal question to the Minnesota Supreme Court, a relatively rare process used by federal courts to get direction from the highest state court as to issues of state law.

At issue in Friedlander v. Edwards Lifescience is the question of whether an employee confronting his boss about the boss’ own intentional wrong-doing constitutes protected conduct under the Minnesota Whistleblower Act (“MWA”).

How is it “blowing the whistle” to report wrongful conduct directly to the wrong-doer? What good does that do?

On the other hand, let’s say, hypothetically, that Mr. Friedlander was fired solely due to his confronting his boss about his boss’ unlawful conduct. Shouldn’t Minnesota citizens get protection from this?

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Flickr Creative Commons phote by Simon Scott

A personal injury plaintiff’s lawyer (“PI Guy”) takes a contingent fee case for a car accident victim (“Vic”). PI Guy explains to Vic that PI Guy “would not pursue litigation” for Vic’s case.

But PI Guy makes a settlement demand on Vic’s behalf of $50,000 on the adversary insurance company. Adversary counters with an offer of $20,000. PI Guy and Vic disagree on whether Vic accepted the $20,000 settlement offer. Vic says he did not accept the offer. PI Guy says Vic did.

PI Guy tells Vic that Vic is bound by and required to take the $20,000. Predictably, Vic fires PI Guy.

PI Guy turns around and sends this email to Adversary, the insurance company:

I was notified my [sic] [client] yesterday that he is terminating my representation and that he is not accepting the settlement offer. He got upset apparently that Medicare is taking a while, as it always does, and now doesn’t want the settlement. I advised him that he already accepted it, there is no rescinding his acceptance. He is picking his file up today apparently. I’m going to send a lien for our fees and costs to you. I’m assuming you will be having legal bring a motion to enforce the settlement. He’s been advised of all of this. Sorry for the inconvenience but he is a very difficult client. Let me know if you have any questions.

Do you see any ethical problem there?

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Photo by Tom Olmscheid of the Minnesota State Capitol Building refurbished rotunda.

If you were a state legislator, what laws would you try to pass? What laws would you try to repeal or amend?

You might not have spent a lot of time thinking about it and these might be tough questions to answer quickly.

It seems that the closest thing to a correct answer (if cynical to some) might be that you would try to pass, repeal, or amend legislation that would get you re-elected.

And what kind of legislative work would that be?

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Update (July 28, 2017): A free-lance writer published criticisms on-line of Guruji Mahendra Trivedi, a man who claims to be a miracle worker, of sorts (“an ordinary man – with an extraordinary ability”). Our courts have held that most of the writer’s criticisms enjoyed heightened protection from defamation claims because Mr. Trivedi is a “limited-purpose public figure.” But not allegations about alleged sexual misconduct? Publication of these allegations does not enjoy heightened protection?

So held the Minnesota Court of Appeals (see the original post, below) and, in spite of Mr. Lang’s well-written (and to us, compelling) petition to the Minnesota Supreme Court for review, the Supreme Court recently rejected the writer’s petition. (Here is Mr. Trivedi’s opposition to the petition for review).

In our view, this is a bad outcome. It is hardly a stretch to speculate that charlatans who make their living exploiting the vulnerable with claims of super-powers and sham miracles might very well exploit victims behind closed doors, in intimate settings, where rock solid evidence may be most difficult to obtain. We note, incidentally, that Mr. Trivedi (or at least the website “trivedieffect.com”) claims that Mr. Trivedi has discovered the power “to harness…universal, intelligent energy…to optimiz[e] the human condition [and this energy supposedly] has the power to transform the cellular structures of all living organisms.” (If one is going to fall for that, wouldn’t one want to see what it’s like in bed?)

It almost seems like the decision is protecting journalists’ (and the public’s) ability to expose fraudsters halfway. It seems like bad policy. We agree with counsel for Mr. Lang and, in fact, the U.S. Supreme Court that: “Uncertainty as to the scope of the constitutional protection can only dissuade protected speech–the more elusive the standard, the less protection it affords.”

And isn’t the result here that journalists will be tight-lipped about allegations of sexual misconduct of public figures for fear of lawsuits and perpetrators might enjoy greater protection for some of their most serious wrong-doing?

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