Julie Andrews Still Photo From The Sound of Music

Update (October 22, 2018): Long-time Minnesota Litigator readers will remember our TAAFOMFT series (which stands for “These are a few of my favorite things,” a sarcastic preface to posts about things we hate).

One of our favorite things (not) which we know we share with an enormous number of civil litigators, judges, and parties to civil litigation in the United States and beyond is e-discovery.

Party A gets into a dispute Party B and, because of the complexity and volume of ESI (electronically stored information), the two find themselves (or, more accurately, their money) sucked into an all consuming vortex so that “the dispute” pales in destructiveness when compared with the meta-disputes over ESI. (The disgust increases exponentially, of course, when it involves multiple parties and non-parties.)

And who pays for that? This is the subject of our earlier post, below.

Is there any recourse when the tail starts wagging the dog, when litigation costs due to ESI demands are blown out of proportion by one side (particularly in a case (or for a defense) that is eventually deemed to have been without merit)?

Fortunately for LEVENTHAL pllc and its clients, who tend to be small businesses and individuals represented by at least one reasonable lawyer (most of the time), ESI generally plays a very small part of their expenses. The lawyers tend to appreciate and respect the notion of “proportionality.”

But even relatively small litigants represented by reasonable lawyers might find themselves sucked into the all-consuming vortex. What then?

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(The Scarlet Letter)

What are lawyers to do when disgruntled ex-clients make false claims against their lawyers online for all the world to see (for all time as far as we know)?

Are lawyers to bear the brunt of false accusations under an ethical obligation of silence owed to their ex-client defamers?

We previously covered the pending proposal for amendment of Minnesota’s ethical rules to tweak the balance between our society’s interest in protecting the near-sacred confidentiality that we respect between lawyers and their clients and lawyers’ interests in protecting their reputations (a.k.a., their livelihoods).

Linked here, William Wernz, a star in the constellation of Minnesota ethics experts for decades, weighs in.

Most of us now agree that ESM, or “electronic social media,” is, unfortunately, a world-wide cesspool of information, misinformation, distortion, and propaganda.

There is always the option of suing former clients for defamation, of course. But compare the costs of simply replying to an online comment along these lines: “The ex-client urged us to undertake the strategy he now complains of against our advice. We regret we did not obtain the results that we and the client had hoped for”) or another far more common situation (“The ex-client says Our Distinguished Law Firm ripped her off company by charging her company over $500,000 for the company’s litigation but we stated our hourly fees up-front, we made the uncertainties and risks of litigation clear from the start, and we gave a budget estimate (which was higher than what we charged). Further, we presented the company for over three years in hard-fought litigation.”

Let’s put aside whether lawyers or law firms would want to respond in these ways to these false complaints of incompetence and thievery. (A great many (probably most) would not.) (This linked extraordinary (NSFW) online response to alleged online defamation (not involving lawyers, btw) seems to have exponentially increased the damages sought to be remedied.)

Let’s put aside that lawyers would need to be extremely careful that their public responses not pose any threat to the outcome of ex-clients’ still-pending matters. Should such comments be considered breaches of the lawyers’ ethical obligations?

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Update (October 15, 2018): Lawyers know that something as seemingly simple as measuring a six-year period of time can be an enormous challenge. Six years, starting when?

The thread of posts below highlight that this issue has bedeviled Minnesota litigants and courts in the context of legal malpractice for more than 12 years now (since Antone v. Mirviss).

And we are still wrestling with this incredibly simple but also maddeningly complex question of when to start the six-year clock.

Recently, the Minnesota Supreme Court agreed to accept a petition for review in Hansen v. U.S. Bank, not a legal malpractice case but, closely related, a claim for breach of fiduciary duty.

To start the six-year timer, our courts are supposed to apply two distinct concepts, the “some damage” rule and the “point of no return” rule. But, in many cases, these two different rules point to two different start-times and, sometimes, sharply different start-times.

The facts of Hansen v. U.S. Bank are straight-forward and appear to highlight the problem: Mr. Robert Hansen and his brother entered into a deal to sell property to a buyer, CFP. Between the purchase agreement in 2009 and the closing in 2010, Mr. Robert Hansen died, and U.S. Bank took his place in the transaction as the personal representative of his estate.

Part of the terms of the sale provided that there should have been “due diligence” by an independent CPA to certify the buyer’s financial forecasts (since the sale would entail payments to the sellers made over time). U.S. Bank allegedly failed to ensure that this term was met.

If you’re still reading this admittedly dry reading, you know where this is going.

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Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

A January 11, 2017 explosion at a truck manufacturing facility in (appropriately named) Dodge Center, Minnesota caused many serious injuries.

It is alleged that a company, Swagelok, failed to properly design, manufacture, test, and inspect a hose assembly, which is alleged to have caused the devastating explosion

(See the complaint here. The complaint, by the way, is impressive advocacy in its thoroughness. Credit goes to plaintiff’s counsel at Pritzker Hageman. Warning: it contains graphic images of terrible injuries. ).

This week, U.S. Magistrate Judge Katherine M. Menendez (D. Minn.) ordered that Swagelok could not “conduct independent destructive testing of critical evidence without the input, involvement, or observation of any party.”

The frustrating aspect of Judge Menendez’s order is that she does not identify what possible justification Swagelok articulated to justify its proposed secret destructive testing.

Is this otherwise known as a proposal to conduct court-approved secret evidence destruction? How not? How did anyone think that would fly?

The court refers to letter briefs from both sides in its order but these letter briefs do not appear to have been filed in the case so they are not publicly available. So we have to speculate.

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Congratulations to lawyers Christopher Kuhlman and Joe Crosby for their $8.98 million dollar jury verdict in a medical malpractice case against Allina Health Systems on behalf of their client, Sirena Samuelson (and her son). (The verdict came late last month and the Star Tribune covered it here.)

The case arose out of problems in the delivery of Ms. Samuelson’s baby, who appears to have suffered life-long injuries related to shoulder dystocia during delivery.

From a review of the court file, it appears that this case was hard fought. The defendant’s “motion to exclude the reptile,” in particular, caught our eye. Presumably, personal injury litigators are familiar with this strange creature of a motion but most readers, probably not.

The motion is not about reptiles (the link is to another case unsuccessfully seeking to exclude the reptile). The ideas and advice in a 2009 book, REPTILE: The 2009 Manual of the Plaintiff’s Revolution, appear to strike such fear in defense lawyers that they bring motions to prevent lawyers from using the tactics described in the book. The book discusses plaintiffs’ lawyers’ appeals to the “reptilian” part of the jurors’ brains. The strategy is described in greater detail here.

How dare lawyers try to appeal to a jury’s sense of physical safety or safety of their community? How dare they be so deceitful, when trying a case that implicates physical safety and the safety of the community, to refer to physical safety and the safety of the community? Have they no shame?

With all due respect to the super successful authors of REPTILE (and the defense lawyers who seem to tremble before their insights, and to all plaintiffs’ lawyers who swear by them), maybe jurors in cases like this one are simply reacting to the evidence of a life-long disability that appears to have been caused by substandard medical care?

 

 

"Collection Plate." Flickr Creative Commons. Photo by Leo Reynolds.

“Collection Plate.” Flickr Creative Commons. Photo by Leo Reynolds.

(Original post (1/11/14), updated/revised: 6/5/15, 11/20/17, 10/9/18): The Minnesota Litigator blog of news and commentary on Minnesota civil litigation is now in its TENTH year and we have posted more than 2,000, 27 interviews with notable Minnesota litigators, and 6 interviews with state and federal judges. We have twice been listed as a Top 100 Law Blog throughout the United States by the American Bar Association (2012, 2016).

Many Minnesota judges, some Minnesota Supreme Court Justices, legions of lawyers, and my mother have all shared their appreciation of Minnesota Litigator with us.

MINNESOTA LITIGATOR CALL TO ACTION: Contact Minnesota Litigator and volunteer for a guest post.  Show the community (1) that you are an intelligent lawyer (or legal services provider of any kind — e-discovery expert, paralegal, or legal secretary) and a good writer with insight, (2) that you know a thing or two about Minnesota litigation,  (3) that you care about improving the Minnesota civil litigation system by actively sharing experiences or ideas.

We recognize that this may be difficult for lawyers in larger law firms, in particular, that have bureaucracies, that have their own firm websites’ voracious appetites for fresh content.  We get that.  But you can still draw readers to your firm posts, at a minimum, by telling your public relations team to keep Minnesota Litigator in mind — to help get the word out.

Also we immensely appreciate tips about interesting cases and/or interesting legal issues important to Minnesota civil litigators or their clients. Neither Minnesota Litigator nor LEVENTHAL pllc pay money or other consideration, directly or indirectly, for tips or suggestions, but we will give credit, kudos, and we will include you in our mindfulness prayers and/or an invocation to your designated preferred deity or deities (carnate or incarnate, ubiquitous or corner office), as appropriate.

THANK YOU!

U.S. Air Force Graphic by: T Sgt Josef Cole

About eight years ago, Minnesota Litigator noted a securities fraud class action against Capella University and predicted that the lawsuit would fail. It did.

Once again, Capella University finds itself being sued in a class action (not for securities fraud this time, just fraud). Once again, Capella University has brought a motion to dismiss and, again, we predict the University will prevail on its motion to dismiss. The allegations are that:

Capella’s doctoral programs were not designed for completion within the represented timeframe and cost; to the contrary, they were designed to last considerably longer so Capella could maximize the extraction of tuition payments from Plaintiffs and the Class.

We have not read the entire 137-page complaint nor undertaken our own investigation. Maybe Capella University understated the amount of time it would realistically take for students to obtain their degrees, putting profit and marketing above candor at aspiring students’ expense. On the other hand, as Capella’s lawyers point out, with a product as complicated as “an education,” it is extremely difficult for courts to weigh in on the quality of the product.

It is extremely difficult for a court to consider the claims of John Doe, Jane Roe, Pete Coe, and Terry Boe, and, as to each plaintiff, decide who is responsible for the delays or failures in their academic pursuits (much less who is responsible for the delays or failures the many class members whom John, Jane, Pete, and Terry claim to represent).

It might be ironic that Capella University’s current marketing tag-line is “Live and Learn;” it seems that many Capella University dropouts have learned gotten an expensive education at Capella, but not the one they signed up for…

Update (October 3, 2018): The Minnesota Supreme Court accepted the petition for review of the case described below and the case has gotten some national attention. On Monday, the Minnesota Supreme Court heard oral argument.

The issue on appeal is, on one level, extremely simple: if Debbie Defendant falsely accuses Peter Plaintiff of domestic abuse and Peter Plaintiff offers no evidence of actual damages, does Peter still have an actionable defamation claim under the “defamation per se” doctrine?

Peter J. Bursch argued on behalf of defendant Jacquelyn Jorud.

Mr. Bursch argued that “defamation per se” doctrine is antiquated and should be wiped off the jurisprudential map; its origins are in English ecclesiastical court and it makes no sense in our current legal system.

His back-up arguments were that the defamation defendants in Maethner v. Someplace Safe should enjoy the same protections that “media” defendants get under established U.S. First Amendment Constitutional law and/or the court should hold that an earlier Minnesota Supreme Court decision, Richie v. Paramount Pictures, should apply, requiring “a reputational harm prerequisite.”

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Update (October 2, 2018): Our original post below is not exactly a prediction so it is not, exactly, a failed prediction but it is close enough for us to consider it one.

In this constitutional challenge, boys are trying to join their schools’ competitive dance program, arguing they are being denied based on their sex, and further arguing that such a denial violates the U.S. Constitution and federal law against sex discrimination in education. Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) denied plaintiff’s motion for a preliminary injunction this past week, however, ruling, in essence, that the plaintiffs are unlikely to win on any of their claims.

A girls-only dance team rule “is substantially related to an important governmental objective,” Judge Magnuson found (to “give girls more chances to participate [in sports], because their opportunities have previously been limited”). Therefore, the girls-only competitive dance squad does not deny the U.S. Constitution’s equal protection clause. Competitive dance is a sport, not an extracurricular activity and, as such, may be single-sex as an exception to Title IX’s general prohibition of discrimination based on sex. Therefore, no Title IX violation.

The plaintiffs will appeal and maybe they will have more luck before the U.S. Court of Appeals for the Eighth Circuit.

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Ouroboros: The Self-Devouring Snake

Update (October 1, 2018): Sometimes, clients push their lawyers to take extreme positions, “scorched earth tactics,” or a “take no prisoners” strategy.

Our ethics rules seem to “punt” on the question of who bears ultimate responsibility as between the lawyer and the client for over-the-top tactics. This seems appropriate. Lawyers are advocates. Lawyers are their clients’ agents. It’s a unique relationship and a bright-line rule of responsibility for litigation strategy just won’t work.

But, if you have litigious clients and you do their bidding, you might be the next defendant in the cross-hairs. Who will be held responsible (and liable) for scorched earth tactics that back-fire?

Crosshairs by Trevor Tinker (Flickr Creative Commons)

This comes to mind in a legal malpractice claim, which we only recently caught wind of, brought against distinguished trial lawyers from Dorsey & Whitney, LLP by an unhappy Dorsey ex-client. (The amended complaint is here.)

It seems to us that the malpractice plaintiff, Mr. Nielsen, ordered his extraordinary and elite legal ninjas into battle and, when they attacked as instructed and were decisively repelled (at a huge cost borne by many, including Mr. Nielsen, himself, his adversaries, and the court system), Mr. Nielsen fired them. Then he sued his soldiers for following his orders.

Of course, Mr. Nielsen’s position, we have to assume, is that we have the narrative all wrong. Presumably, we can summarize his position to be that he sought sage legal advice from highly accomplished and distinguished lawyers and, instead, he was whipped up into a litigious frenzy by lawyers more eager to bill hours than to serve their clients effectively. (This narrative, incidentally, is hard to square with Mr. Nielsen’s long history of litigiousness.)

In our view, the bottom line for Minnesota Litigator readers is that aggressive lawyering exposes lawyers and law firms to significant risk (legal, financial, and reputational).

If a client goads his lawyers on to take very aggressive (and expensive) positions, the lawyers best have that client influence well-documented and, even if they do, they might want to consider the risk of “buyer’s remorse” if the costly strategy fails.

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