Somewhere over the rainbow…

“Somewhere over the rainbow, bluebirds fly, birds fly over the rainbow, why, then, oh why can’t I?”

You cannot fly over the rainbow for the same reason that bluebirds cannot read, I guess you might say. You don’t have wings and bluebirds’ brains are about the size of a pencil eraser. I think you should be happy with the trade. And things really are not so bad here on earth under the rainbow.

But, nevertheless, we persist. We wistfully long for powers beyond our reach, for dreams we can never realize.

This is often how it feels when you have won a judgment against an insolvent entity. You have something in hand, like a judgment for over $1 million. Why, then, oh why, can’t you convert that hard-won judgment into cold hard cash?


We wager the speed of social change may never have been faster than it has been in the past 200 years in the United States and it seems to be ever-accelerating.

Nowhere is this more obvious than in our evolving understanding and treatment of the concepts of “gender” and “sexual identity.” And caution to people, institutions, and businesses that fail to keep up with our evolving culture.

On Friday, December 14, 2018, after reviewing a week’s worth of evidence, a jury in Dakota County, Minnesota concluded that The Minnesota Vixen (“Vixen”) football team and the Independent Women’s Football League (“IWFL”) intentionally discriminated against Christina Ginther, a transgender woman, by maintaining and applying a discriminatory eligibility policy that specifically excluded transgender women from the league.

Regular Minnesota Litigator readers may recall that Fairview Health Services, Inc., also ran into problems for its treatment of a transgender patient in the past couple of years.

A Dakota County jury found that the Vixen and the IWFL wrongfully discriminated against Ms. Ginther, then they found that the discrimination caused Ms. Ginther compensable mental anguish, and, finally, the jury found that punitive damages were warranted against the IWFL.

Congratulations to Ms. Ginther and her lawyers, Nick May and Lucas Kane. And to Minnesotans, may this be a reminder or wake-up call to those who have not already come around and embraced tolerance and respect of our transgender community, which are not matters of courtesy or “political correctness.” They are the law.

Photo by Jonathan Rotondo-McCord

Update (January 3, 2019): Pro bono work, as we all know, is legal service provided by lawyers without pay — charity. Pro nono work, is legal service provided by lawyers without pay — loser contingent fee cases, deadbeat clients, etc. Sadly, many fine lawyers have no time for pro bono work because they have too much pro nono work to dig out from under. They cannot afford donating their time and energy to worthy causes; they do not have the luxury. These difficult circumstances come to mind in the the case, described below, a long disappointing slog for the Rochester, Minnesota law firm, O’Brien & Wolf.

You can read in the attached opinion what might be the death knell to the law firm’s claim that it can recover any proportion of its legal fees from an ERISA plan when the law firm recovered money for the plan, without any agreement from the plan that it would pay the law firm. (We will see if the firm petitions the Minnesota Supreme Court for review or whether it will raise the white flag at this point.)

You can read the original post below (from July, 2017) to get a sense of how long and how hard O’Brien & Wolf has fought to get some of its legal fees from their client’s ERISA plan for which the law firm recovered over $150,000…


The linked order from Judge Vanessa D. Gilmore of the U.S. District Court for the Southern District of Texas has been bouncing around the internet for most of December so many Minnesota Litigator readers have undoubtedly stumbled across it already.

It is a cry from the heart of a federal judge that lawyers and clients, alike, can get enmeshed in tedious conflict, failing to appreciate the way they are perceived by others (as petty, silly, needlessly antagonistic).

On the other hand, Judge Gilmore, herself, has been the subject of withering criticism, some of which, appears to be justified.

Regardless of who is more to blame in this apparent break-down in common decency, the tiff is nevertheless a worthwhile reminder during the holiday season. This is a time when we aspire, at least, to see the forest for the trees, that is, to rise above the immediate and trivial, to contemplate and celebrate greater meaning, like love, family, and the sheer joy of life. Happy Holidays from Minnesota Litigator and best wishes for the year to come! Thanks for all contributions, comments, suggestions, and tips. KEEP THEM COMING!


Update (December 21, 2018): It’s looking like the criminal trial of University of Minnesota law professor Edward Adams will be moved from January, 2019 to October of 2019, based on 35,000 emails seized from the professor’s Yahoo email accounts that still need to be reviewed and one of Prof. Adams’ lawyer’s maternity leave. The pressure’s off for now.

Original post (November 5, 2018) (under the headline, A Primer on Attorney-Client Privilege & the Attorney Work-Product Doctrine from U of M Law Prof. Edward Adams (Indirectly)): University of Minnesota law professor, Edward S. Adams, finds himself the subject of a federal criminal indictment. He is alleged to have duped investors and unlawfully enriched himself. The superseding indictment portrays a classic investment fraud scheme where investments were solicited for a business (“laboratory-grown diamonds”) but the investment dollars were allegedly pocketed and spent for personal benefit rather than invested in the business.


We have covered defamation cases on Minnesota Litigator a lot. We do so because, for the past twenty years, the “publication costs” for disseminating information have dropped by orders of magnitude to very nearly $0.00. In our view, there has been an explosion of false and harmful disinformation because of the sharp drop in dissemination costs. (Some would suggest that the Russian government caught on to the misinformation revolution early and consequently, we now have a compromised, incompetent, ignorant, buffoon in the White House. But we digress and take no position on politics of the day.)

There’s no reason one cannot defame the old fashioned low-tech way, of course, orally and person-to-person. If one is defamed the old-fashioned way, what must one plead in a defamation complaint? Must one recite the “who, what, where” of the alleged defamation precisely?

[I]n late September 2015, [Mr. Mark] Fodness, ‘while acting in the course and scope of his employment’ as the Bemidji State University tennis coach, [allegedly] ‘made false and defamatory statements about Paul Swartwood to the members of the Bemidji State University women’s tennis team and others.

Mr. Fodness allegedly told the tennis team to “stay away from Paul Swartwood because he was a sexual predator who acted inappropriately around young women.” Mr. Swartwood, at the time, was a local tennis instructor and president of the Bemidji Area Tennis Association.

Beltrami County District Court Judge Shari R. Schluchter threw out Mr. Smartwood’s defamation case against Mr. Fodness on a motion to dismiss finding the allegations of defamation were insufficient. “No further information is provided in the complaint as to the exact statement made, which individuals heard the statement, where the alleged defamation occurred, or even any context in which the alleged statements were made.” The district court continued, “This description of the defamation is imprecise and vague.”

The Minnesota Court of Appeals correctly reversed the trial court’s decision in favor of Mr. Fodness’ motion to dismiss.


A red car and one black crash in an accidentIn a galaxy far far away, tort victims sue their tortfeasors for the harms that the tortfeasors wrongfully inflicted on the victims. The cost to the victims to vindicate their rights against the wrongdoers is zero (because why would one short-pay or penalize tort victims, effectively charging them money for compensation and justice?). The validation (or invalidation) of the victims’ claims is fast, easy, cheap, and determined with complete certainty. The awards to the victims, if warranted (after the lightning fast no-cost decision-making), compensates victims 100% for their injuries, no more, no less. The tortfeasors learn their lessons and change their conduct to avoid liability (and accidents, and injuries) going forward.

On this planet, in this country, in this state, the narrative is different. In fact, our tort system is painfully inefficient and expensive (though, arguably, no one seems able to devise a better system in this galaxy, at least).

It is bad enough that the process starts with lawyers who have to be paid so that a tort victim’s “complete recovery” is discounted by maybe 30-50% off the top (or more). (Most personal injury cases are handled on a contingent fee (maybe a contingent fee of 25% to 49%of an injured person’s recovery PLUS the lawyers’ out-of-pocket costs, which come out of the victim’s share of the recovery).

Things get even more complicated and unsatisfactory when we add in the staggering complexity and inefficiencies of our healthcare system and the tort system’s interplay with health insurance (whether public (Medicaid/Medicare) or private).


Julie Andrews Still Photo From The Sound of Music

Regular and long-time readers of Minnesota Litigator will remember our TAAFOMFT series (“These are a few of my favorite things….”) in which we engage in the fine art of whining via irony. We complain about aspects of the practice of civil litigation that we like the least. (We view it as a good sign that we have not had any TAAFOMFT posts for some time now.)

We recently stumbled on a ruling in Wing Enterprises, Inc. d/b/a Little Giant Ladder Systems v. Tricam Industries, that brought us a touch of nausea, the physical manifestation that most commonly accompanies our favorite things.

The dispute centers around the label that you’ll see after the jump.


Update (December 11, 2018): Speaking of the disappointment of winning one’s “costs” after a win in course, in a wholly separate case from the one described in yesterday’s post (below), Allnurses, the victororious defendant (at least pending appeal) sought “costs” of about $135,000 and was awarded only $1,092.45. Here’s why: [click link].

And how much do y’all think the lawyers billed for their application for costs that resulted in an award of $1,092.45?



Before commenting on the lessons learned from 12 years as a volunteer investigator for the Fourth District Ethics Committee on behalf of Minnesota’s Office of Lawyers Professional Responsibility, we start by urging all Minnesota lawyers (and even non-lawyers) to consider volunteering. It is not a huge commitment of time. It is, in our view, an extremely valuable form of “continuing legal education” even if one does not earn “CLE credits” for it. It is also an important service not only to the legal community but to all Minnesotans (and others) who seek or get legal services in Minnesota.

(Another time, perhaps, we will tackle the issue of the relationship between “CLE credits” and genuine continuing legal education. Suffice it to say, for now, that we think the relationship is not 1:1 and far closer to an inverse relationship.)