ContortionistUpdate (April 14, 2017): In our post below, we threw our full-throated support in favor of the abolition of so-called “unpublished” Minnesota appellate opinions.

Our main point is that the designation “unpublished” is a misnomer and does a disservice to Minnesota lawyers and their clients, relegating some percentage of state court appellate decisions (a sharply increasing percentage over the past 10 years as Minnesota Supreme Court Justice David Lillehaug has pointed out) to “unpublished,” more accurately known as “without precedential value” —  a down-graded and inferior status, without any articulated justification.

The unwritten justification for “unpublished opinions” is that publishing every decision is just too much work for our state Court of Appeals judges.

Many of us might not understand how abolishing this false and artificial designation, “unpublished,” by itself, results in more work for Court of Appeals judges.

We recently learned that there are different internal court review processes for published vs. unpublished decisions. There is more review by all Court of Appeals judges of “to be published” decisions than there is for “unpublished” decisions. This explains how eliminating the use of “unpublished” decisions would increase the court’s workload.

We still don’t buy it.


Update (April 12, 2017): Below is a string of posts stretching over the past four years in which Minnesota Litigator emphasizes that “valuation is an inexact science” but that does not mean that valuations or appraisals are entirely manipulable and worthless. Sometimes, though, we wonder.

Last week, the Minnesota Supreme Court issued an opinion on an appeal from a tax court decision in which the Minneapolis Assessor’s Office determined a valuation for a particular property of $22,700,000 for 2008, $19,500,000 for 2009, and $17,700,000 for 2010.

The property owner’s qualified appraiser had advocated a valuation of $12,800,000 for 2008, $10,000,000 for 2009, and $9,800,000 for 2010 for the same property.

The City’s qualified appraiser had advocated a valuation of $25,000,000 for 2008, $16,000,000 for 2009, and $17,000,000 for 2010.

The “delta” of these valuations is extreme.

The disconnect between the parties’ valuations arose from three “key points”: (1) use of the “income approach” vs. the “market approach,” (2) “the date on which it would have been economically feasible to begin the development of a new downtown office tower,” and (3) “the choice of comparable sales under the market approach.”

It seems that neither side’s appraiser did anything “wrong” in his analysis — neither side’s valuation is “wrong” — but, paradoxically, it is impossible that both valuations are “right.”

When a discipline’s methodology is complex and includes multiple flexible variables, there will never be a “right” answer. Therefore, once the decision-maker reaches a decision (in this case, the tax court) based on experts in these complex contexts, it will be the party that has to establish the decision-maker was “wrong” that faces an almost unwinnable battle… (in this case, Macy’s Retail Holdings, Inc.)


Update (April 10, 2017): In the original post below, we pondered the idea of computers replacing civil litigators, suggesting it might be at least a decade or two away.

To be more precise, the complete replacement of civil litigators by computers is at least a decade or two away.

As for the partial replacement, you are out of the loop if you don’t recognize that this has already happened.

One example: about twenty years ago, in preparing for a deposition in almost any case, lawyers, associates, and paralegals might spend several hours if not days poring through boxes of documents to find particular documents they already KNOW are “in there somewhere.” Now a single lawyer can run a database search and find any document in a data-set of millions of documents in less than one second.

This is one of many examples of the dramatic and irreversible disruption of the livelihoods of U.S. law firms, lawyers, and their decimated support staff.

Recently, a task force of lawyers with the Minnesota Bar Association has been studying the important and complex issue of “alternative legal models.” The task force focused on human alternatives. Do we really need licensed lawyers to do some of the routine and relatively simple tasks that now require law degrees (and, thus, are expensive)? Is this restriction the reason why our civil justice system is only good for big business and rich people, or as former Chief Judge James M. Rosenbaum (D. Minn.) has quoted former U.S. President Jimmy Carter, “Rich people drive Cadillacs and poor people don’t”? (Judge Rosenbaum pointed out that our criminal justice system, in contrast, can be very good for the poor, who get “free” public defenders, who can provide them excellent services.)

But one Minnesota lawyer on the task force, Angela E. Sipila, had a different perspective: “[A] computer can deliver the knowledge of a law degree,” she pointed out and how do we ensure that these systems are tracking basic ethical requirements that apply to lawyers?


Photo thanks to via flickr

Photo thanks to via flickr

Update (April 7, 2017): “Discrimination” has become a pejorative term even though it is not necessarily pejorative. Few would object to discrimination that is, “distinguishing between” or “differentiating”, a Granny Smith and a Honeycrisp apple. Someone who has “discriminating taste” in tea (or wine or music or whatever) certainly is not considered “guilty” of discrimination.

So, for unlawful discrimination, must one be “differentiating” or “distinguishing between people” with some kind of hostility or animus? Could there be “innocent” discrimination based on sex, gender, race, etc.?

This week, the Minnesota Supreme Court decision in the LaPoint case (covered below) was introduced in the Rumble case (previously covered here). LaPoint involved a claim of discrimination based on pregnancy. Rumble involves a claim of discrimination based on transgender status. Apparently, there is are questions of whether “animus” or hostility is a required showing under the Human Rights Act. Also apparently at issue in Rumble: social science expert evidence on the somewhat controversial concept of implicit bias. As we’ve previously noted, Rumble is cutting edge litigation getting national attention. We’re lucky to have the likes of U.S. District Court Judge Susan R. Nelson (D. Minn.) grappling with these difficult issues.

[Ed. note (post-publication update): Here is a defendant’s response to Plaintiff Rumble’s points about the applicability of holding in LaPoint to the Rumble case.]


It seems that being branded an “intellectual” is widely regarded as an insult in the United States. U.S. Politicians fear being labeled “egg-heads.” We seem to revere the doers and sneer at the thinkers (as if one can succeed without the other).

There seems to be a deep conviction among many Americans that “intellectuals” (1) think they are smarter than the rest of us are, (2) are pretentious, and (3) are more worthy of our contempt than our respect. This explains the success of so many U.S. politicians, who are so obviously unintelligent and so actively anti-intellectual.

Not all of us think this way. A few of us think “intellectuals” are the most learned, intelligent, and maybe even admirable among us. And, for these people, “intellectual property” law seems inherently attractive, distinguished, impressive, and fascinating. The notion of inventions, of the commodification of ideas, the monetization of human thought!

The very words, the very notion, of “intellectual property” (“IP”) hints at the complexity of this area of the law and IP lawyers are among the most highly credentialed and highly paid lawyers. But, with the greater complexity and the higher pay, comes some higher risk.


The Minnesota Litigator blog, “News and Commentary About Minnesota Civil Litigation,” has now officially posted more than 2,000 entries over its 9-year life. Thanks to our many contributors, editors, commenters, critics, and, above all, to our faithful and voracious readers.

As we have said time and again, Minnesota Litigator is only good when it benefits from (and hears from) active, thoughtful readers. Otherwise, we fear it is merely solipsistic whinging, exhibitionistic wordplay, or some unsavory combination of the two.

So please keep the tips, criticisms, clarifications, comments, and feedback of all forms coming and thanks for all the contributions to date!


It has been a while since Minnesota Litigator has lamented what it calls “the Minnesota hair-cut” — that is when, in our view, Minnesota courts go wild with the clipper on attorney fee petitions. The hiatus is not because this trend has abated. It just gets boring to highlight every time lawyers have their fees slashed by judges.

So it was refreshing to see U.S. District Court Judge John R. Tunheim (D. Minn.) trim the trim that U.S. Mag. Judge Leo R. Brisbois gave to Plaintiff’s counsel recently.


Americans are consumed by a passion for hot and crispy food. Long-time Minnesota Litigator readers will undoubtedly savor the smoky memories of “the bacon battle,” drawn out litigation over a means of cooking bacon in a microwaveAnother microwaved food related battle in U.S. District Court (D. Minn.) has come to our attention, an antitrust case over “susceptor food packaging” (“SFP”), which would appear to be another way of saying microwavable packaging.

What do you get when you mix fried food, microwaves, antitrust claims, and document discovery?

Has Defendant Graphic Packaging International, Inc., been abusing its dominance in the field of SFP with various unlawful anti-competitive actions or, is the comparatively small Plaintiff Inline Packaging simply a jealous also-ran grasping at straws?

As most of our readers know, before any judge or jury can answer that basic question, Inline is entitled to discovery, meaning that Inline can seek evidence (“documents”) from Graphic to prove its claims. This simple and essential facet of our civil litigation system is, in practice, complicated and difficult.


Update (March 24, 2017): Sr. U.S. District Court Judge David S. Doty’s opinion in the dispute described below makes the case look like a no-brainer. Plaintiff Ayala had an agreement with his employer, CyberPower, that his salary would be $X until the business had revenue of over $Y million (at which time he would get a raise). Based on this, Mr. Ayala argued that CyberPower had given him an open-ended term of employment for as long as it took CyberPower to reach revenue of $Y million. That is, Mr. Ayala argued that the agreement changed his employment status from “at-will” employment, which it had been.

Among other things, Mr. Ayala’s position required him to take the position that he could not quit his job without breaching the contract if CyberPower did not hit the revenue target.

Making the case even weaker for Mr. Ayala, the agreement that included this salary arrangement expressly provided that “It [was] not a multiyear commitment or employment contract for either party.”

It is ironic that Judge Doty found the contract unambiguous when U.S. Mag. Judge Franklin J. Noel had previously found it ambiguous, a finding that Sr. U.S. District Court Judge Michael J. Davis reviewed and agreed with.

I think Judge Doty got it right and the case simply illustrates the overwhelming challenge of predicting the course of civil litigation. One has to wonder whether the case would have dismissed from the get-go had it been before another judge.


Update (March 24, 2017)Imagine the frustration and humiliation of a candidate losing an election when running unopposed.

This is how trial lawyers can feel when they lose motions for entry of default judgments — that is, when a defendant knows of a lawsuit against it, offers no defense, the plaintiff’s trial lawyer moves for a “default judgment,” and loses the motion.

But courts are protective of parties who are not there to defend themselves. They’re obsessed with ideas like fairness and justice.

That can be very frustrating.

In the case described below, a company bought an egg carton-making machine that allegedly never worked as advertised so it sued several different firms all connected with the design, manufacture, installation, and operation of the multi-million dollar machine.

Samey, one of the defendants did not bother to respond to the complaint so the Plaintiff, LEI, sought a default judgment against Samey.

The problem with LEI’s motion was that other defendants are defending against LEI’s claims. A default judgment against Samey while the other defenses by other defendants are undecided could result in successful defenses to LEI’s claims and an inconsistent judgment against Samey. That hardly seems right or fair and so U.S. District Court Judge Ann D. Montgomery (D. Minn.) denied LEI’s motion as premature.

We wonder whether Samey had legal advice to ride on the coat-tails of the other defendants? That would be an audacious play (by Samey and its lawyers). A more likely alternative is that one of the still-in-the-case defendants agreed to indemnify Samey so, one way or another, Samey’s feeling secure enough to let others fight it out.