ContortionistIn this month’s Bench & Bar of Minnesota, Minnesota Supreme Court Justice David L. Lillehaug and his former clerk, Nathan J. Ebnet, published a thoughtful and well-researched article entitled, “A Fresh Look at the Problem of Unpublished Opinions.”

The authors point out that the number of so-called “unpublished opinions” by the Minnesota Court of Appeals has sky-rocketed over the past decade to the point in 2015 when 92% of the Court of Appeals’ decisions were designated “unpublished.”

Justice Lillehaug and Mr. Ebnet point out that “an overwhelming majority of practitioners favor continued publication of all opinions,” (based on a 1986 survey) but they conclude with four proposals that stop short of advocating for the abolition of “unpublished opinions.” Instead, they suggest that the Minnesota Court of Appeals should issue fewer of them.

In my opinion, the authors do not go far enough. The “overwhelming majority of practitioners” were right. The very words, “unpublished opinion,” reflect an embarrassing legal contortion, an oxymoron. The doublespeak is particularly galling because so-called “unpublished opinions” play a part in our justice system, of course. The use of clear and precise language is an absolutely essential part of any claim to justice or fairness.


Update (12/21/2016): On the day of trial (Monday), the defendant raised the white flag and surrendered. Trial consisted of one witness, about ten minutes of testimony, and four exhibits. One witness had flown in from Rhode Island to testify. Notch another win for LEVENTHAL pllc although civil litigators know this is a battle victory. The war goes on (in the form of the post-judgment collection efforts).

Gen. Douglas MacArthur signs as Supreme Allied Commander during formal surrender ceremonies on the USS MISSOURI in Tokyo Bay. Behind Gen. MacArthur are Lt. Gen. Jonathan Wainwright and Lt. Gen. A. E. Percival, September 2, 1945

Formal surrender ceremonies on the USS MISSOURI in Tokyo Bay.


pinkie_pie_bubble ponyUpdate (December 19, 2016): The Minnesota punitive damages statute  provides:

(a) Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others. (b) A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and: (1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

The allegations in Bubble Pony (“BP”) vs. Facepunch (described in earlier posts below and in the linked memorandum of law) are that BP’s principal, Patrick Glynn, did the lion’s share of work on Rust, a successful computer game, and Facepunch maneuvered to avoid giving Glynn his rightful share of the millions of dollars of Rust profits, necessitating this lawsuit.

Assuming BP can prove these allegations, do they rise to the level of triggering punitive damages under Minnesota law?

Minnesota Litigator will go out on a limb here and predict that BP will lose the motion. “The mere fact that a party has committed a wrongful and unlawful act affecting the person or property of another does not justify the imposition of [punitive] damages in an action to redress the wrong. To justify such damages the tort must have been committed wantonly or maliciously, . . . as to establish malice in fact.” Vine v. Casmey, 90 N.W. 158, 158 (Minn. 1902). A dispute over how to divvy up a pot of money does not strike me as the kind of case that would normally justify punitive damages and we’ve noted in earlier posts that Minnesota courts are generally not fond of punitive damages. It sometimes seems that Minnesotans’ allegiance to cool and dispassionate civility most often outweighs any burning desire to inflict punishment.


cropped-projectionSometimes when someone sues another for an injury, the injury is on-going at the time of trial. Medical treatment and costs can persist through the lawsuit and for the rest of the life of the injured person. This injects inherent uncertainty into the important question of compensating victims.

How is a jury to figure out what to award for “future medical expenses”? How are our courts to review jurors’ estimates?

At present, the jury must rely on expert testimony. Our courts must review the juries’ determinations to confirm that they make sense and align with the evidence presented before them.

So, while no one can conceivably know the future with specificity, our system has devised only as reliable a method of approximation as it can.


normanrockwellad-1 Last week, Minnesota Litigator posted on a recent class action filed against Walden University and Laureate Education, not holding back our condemnation of those who exploit the critical importance of higher education in our 21st century economy, those who fleece consumers with hyped, over-priced, and possibly useless products.

Minnesota School of Business (MSB) might also belong in the Hall of Shame.


breastfeedingThis week, the Star Tribune covered a recent lawsuit brought by a new mother whose two day-old baby was accidentally handed over to the wrong mom and breast fed by this unrelated woman at Abbott Northwestern Hospital in Minneapolis.

The plaintiff’s lawyer is Wayne A. Jagow.

How much do you think this case is worth? What are the damages?

I wonder if the woman who gave away her breast milk to a stranger can also bring a lawsuit against the baby for unjust enrichment? Restitution? Disgorgement?

Against the hospital for aiding and abetting?

The complaint is pretty bare-bones.

Shouldn’t an apology from the hospital and a fruit basket or something be enough?


Robert Burns, 1759-1796

Robert Burns, 1759-1796

Update (December 7, 2016): The original post, below, highlights the inherent and dramatic uncertainty of the course of civil litigation. I recently discovered that the saga continues.

Minneapolis law firm, Nilan Johnson Lewis (“NJL”) is sitting on a pile of money ($2,300,653.64) related to the settlement of the underlying lawsuit but the handful of litigants who believe they are entitled to some or all of the proceeds cannot agree on the split. I note that the NJL client, ECTG was originally sued for allegedly defaulting on a $2.4 million promissory note and, in the end, seems to have netted rather than paid the same amount (minus legal fees and the cost of illiquid frozen assets). Something obviously went quite agley.

Original post (April 8, 2014): In 1785, Scotsman Robert Burns’ plow ran over a mouse’s nest, causing the poet to give some thought to our intertwined lives unwittingly upsetting the lives of others.  “The best-laid schemes o’ mice and men gang aft agley,” he wrote. Over the years, we have revised the line to say, “the best-laid plans of mice and men often go awry.”

Nowhere is this more true than in civil litigation. A straight-forward action to enforce unpaid promissory notes appears to have spawned a whole new lawsuit claiming conspiracy, for example.


Slimed Person cropped SLIMEIf the allegations in the 145-page complaint are true, I hope that the recently filed class action against for-profit on-line graduate schools, Walden University and Laureate Education, Inc. shuts these scams schools down for good.

Distilled to its essence, the class action complaint alleges that the schools claim to sell graduate school educations and doctoral degrees at a stated estimated price, achievable over a stated amount of time. Then, the schools string people on for years, causing students to incur hundreds of thousands of dollars of debt, and about half of the students (or maybe more?) leave the program before graduating or getting any degree.

These schools smell like more foul and fetid swamps that branch off from, and feed off, of the frothy torrent of our free-market economy (like Trump University, of course). Defenders of the schools will likely invoke the “caveat scholar” doctrine.

The challenge for the plaintiffs, I predict, will be that the defendants will seek to distinguish each and every complaining student’s gripes, arguing that individualized facts overwhelm any class-wide issues, rendering the lawsuit unfit for class action status. (When plaintiffs have individual damages in the hundreds of thousands of dollars, would it be possible to bring the cases individually? Or would it be better to consolidate them? I look forward to following the lawsuit, which is pending before Sr. U.S. District Court Judge David S. Doty (D. Minn.).



cbd5c66ff384a81df2905e50275e4b20Update (December 2, 2016): Shattuck-St. Mary was not able to strip me of my successful prediction below

Update (November 23, 2016): It is no surprise that requests to file motions for reconsideration (perhaps more accurately called, “You’re Doing it All Wrong, Boss” Motions) face long odds. We’ll see if Shattuck-St. Mary is able to strip me of my successful prediction below…

Original Post (November 7, 2016) (under headline, “More on Trial As Theater (A Follow-Up Post”): Another successful prediction for Minnesota Litigator: Last month, I noted that the Shattuck-St. Mary School opposed the three plaintiffs’ motion to consolidate their three cases against the school into a single trial. I predicted that the school’s opposition would fail to persuade U.S. District Court Judge Ann D. Montgomery (D. Minn.).

This past week, Judge Montgomery ruled:

In sum, consolidation is appropriate. The common questions of law and fact that exist between the three Plaintiffs warrant consolidating the cases for trial. The judicial resources preserved and the convenience of the witnesses strongly favor consolidation. The Court will be vigilant to prohibit any evidentiary spillover and jury confusion, and will instruct the jury at appropriate times to prevent Shattuck from being unfairly prejudiced.

I do not celebrate the school’s loss on this motion with unchecked glee.


Shadrach's whistleThis 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?