If you find yourself thinking about objecting to the admission of evidence at trial because it is not “the best evidence,” close your eyes, take three slow long “cleansing” breaths (in for count to 4, hold for 2, out on a count of 6), and think again.

If you find yourself appealing a bad result at trial based on a court’s denial of your “best evidence” objection, be prepared to lose your appeal (or at least that part of it).


Minneapolis Star Tribune File Photo

I never met or knew Larry Leventhal and I am pretty sure we are unrelated. But for my twenty years of practice in civil litigation in Minnesota, I have gotten telephone calls intended for Larry. Once, a judge told me, “You look like your father,” thinking I was Larry Leventhal’s son.

A few times, over the years, I reached out to Mr. Leventhal, hoping to get to know him because I had learned of his long history of activism on behalf of Native Americans and dedication to progressive causes, Unfortunately, I never had the chance to meet Larry. I am sure he had many more important things to do than meeting up with me, a stranger who only shared the same last name, the same profession, and, perhaps, a similar sense of justice.

I note in Mr. Leventhal’s obituary that U.S. District Court Judge Michael J. Davis is quoted as saying, “What we need is 1,000 more Larry Leventhals” and I would think this is all the more pressing in our current political climate.

There are few clichés more common in our civil litigation system than the reviled “trial by ambush.” Basic requirements of our legal system are orderliness and predictability and there are not supposed to be “surprises” at trial.

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Analogize to a boxing match (or any adversarial “dispute resolution” forum). You have got to have rules — when the fight starts, how it is decided, permitted equipment, prohibited maneuvers, etc. The better boxer will not prevail against the adversary who punches him in the back of the head before the first bell.

The case of Fagen v. Exergy, which we have covered at some length, has seemed to be a symptom of a flawed, if not broken, “dispute resolution” system. While the case involves a failed multi-million dollar wind energy project, it does not seem to have involved particularly complicated facts or law. Nevertheless, the litigation has been protracted and expensive.

Most recently, on the courthouse steps, it seems that Exergy has come up with previously undisclosed conclusory expert opinion and wants to argue a new legal theory.


On the Friday before the Martin Luther King, Jr. Holiday, the U.S. government filed its complaint against KleinBank charging the bank with “red-lining” in the U.S. District Court (D. Minn.).

Historically, “red-lining” was a practice by which lenders would avoid offering credit to majority-minority neighborhoods. In our economy, cutting off access to credit, whether both individuals or businesses is tantamount to cutting off oxygen.

Paradoxically, it simultaneously seems unbelievable and obvious that, historically, in the United States racism trumped the profit motive for many lenders. But, in the present day, could this really still be the case?


Martin Luther King, Jr.

Martin Luther King, Jr., Photo By PBS NewsHour

“We have flown the air like birds and swum the sea like fishes, but have yet to learn the simple act of walking the earth like brothers.”  Martin Luther King, Jr.

Take the time to read through the fact-finding and legal conclusions in an attorney discipline action brought against Minnesota lawyer, Michelle MacDonald and you will find see a model of contumacy (“stubborn and willful disobedience to authority”).

You will see a licensed Minnesota lawyer who appears to believe that the Minnesota legal system is illegitimate and not entitled to any respect.

You might also conclude that you see disruption and defiance, which, if allowed in our legal system, would destroy it.

And you will not see an isolated example of misconduct. You will see a pattern of willful defiance of courts’ authority. You will see multiple instances of counter-productive defiance, obstruction, and willful non-cooperation.

What do you think the discipline should be for the conduct described by the referee presiding over the petition for disciplinary action?


everclear2 College PartyingUpdate (January 10, 2017): I criticized plaintiff in the case described below for including a claim for intentional infliction of emotional distress (“IIED”) as “going too far” but, as shown on pages 20-23 of the linked Order from U.S. District Judge Patrick J. Schiltz (D. Minn.), the claim survived Defendant Carleton College’s motion to dismiss (barely).

Judge Schiltz assumed for purposes of deciding the motion that Carleton College “coerced” the Plaintiff to confront her alleged rapist “one on one,” and Judge Schiltz held that such conduct, if proved, could be found “extreme and outrageous,” “intentional or reckless,” and found to have caused the Plaintiff “severe emotional distress.”

I get that. I will go farther. I will agree with that. So I agree that plaintiff’s IIED claim should have survived a motion to dismiss. On the other hand, I find it unfathomable that Carleton College would “force” or “coerce” a student to one-on-one meeting with her accused rapist. The definition of “coerce” is “to persuade an unwilling person to do something by using force or threats.” In my view, “force” or “coerce” cannot be synonyms for “encourage,” “urge,” or “persuade,” — all of which might have been unreasonable approaches (if this is what happened) but not “atrocious” IIED, imho.

On the other hand, the result of our recent national election is unfathomable to me. But it happened.

Original post (May 16, 2016) (under the headline: Shank v. Carleton College: Drafting a Complaint, Threading a Needle, Striking a Balance): I recently high-lighted a multi-million dollar contract case where the Plaintiff’s complaint was a mere six pages. In many posts, over the years, I have noted excessively long complaints, which are annoying to courts and ineffective as advocacy (here is an example; here is another).

The is no magic answer. There is no “optimal” complaint length. Different cases call for different strategies. Does Elizabeth Shank help or hurt her case against Carleton College for its response to her alleged rapes with a recently filed 49-page complaint? Is the complaint drafted as a public document for the general public or for the court? (The case has been assigned to U.S. District Court Judge Patrick J. Schiltz (D. Minn.) who is not a fan of sprawling complaints.)

As for the merits of Ms. Shank’s lawsuit, time will tell. As a Carleton grad and Carleton dad, I suppose I won’t be on the jury. Admitting my bias, I think that Plaintiff does herself no favors by adding a count for intentional infliction of emotional distress against the school (see p. 43). Suggesting that the college intentionally caused her “physical injury and severe mental and emotional distress” seems to me to go too far.

Whether it is Carleton or any other college, such allegations are unfortunately predictable and colleges are stuck between risks of lawsuits by alleged perpetrators and alleged victims (here is a complaint against Macalester College by an accused perpetrator).


From the linked opinion, I gather that Plaintiff Christopher Ayala agreed to settle a case he brought against a Minnesota company, Aerotek, and then he changed his mind.

(At least before the so-called “settlement” in the Ayala case, Mr. Ayala’s lawsuit was similar to the unfortunate Mr. Chandramouli Vaidyanathan’s protracted lawsuit, covered at some length in previous Minnesota Litigator posts (or Mr. Neal Hanson’s). That is, in these cases, workers alleged that they were recruited for jobs requiring them to move but the promised jobs  evaporated on arrival. Mr. Vaidyanathan was allegedly lured from Texas, Mr. Hanson was promised a move from Wichita, Kansas, and Mr. Ayala, from Afghanistan (!)).

Unsurprisingly, U.S. District Court Judge Michael J. Davis (D. Minn.) held Mr. Ayala to the settlement agreement that he gave every indication he agreed to. As mentioned in earlier Minnesota Litigator posts (here and here, for example), for obvious reasons, courts are pretty strict about enforcing settlement agreements.

Last week was a bad week for Minnesota-based multi-million dollar wonder-company, “My Pillow,” which got spanked by the Better Business Bureau and sued in a nationwide class action on the same day. (Here is a link to the Star Tribune coverage and here is a link to the class action complaint.)

At issue is a “buy one get one free” (BOGO) marketing effort in which the seller is alleged to have simply doubled the price of its product, a pillow. When consumers buy a double-priced pillow, they get a second pillow “free.” Also at issue are pillows for sale at 50% off “regular price” but the “regular price” was allegedly a double-priced pillow discounted by 50%. The marketing campaigns were further complicated by “coupon codes,” that would enable buyers to in-put a code and get a “special price.”

Some among us will suggest that such consumer lawsuits are ridiculous, that BOGO ad campaigns, “50% off regular price” campaigns, and “coupon codes” are nonsense. Fluff. Tinsel. Smoke. Mirrors. Everyone knows (1) the products being sold; and (2) the price demanded for purchase.

Next, will we have class actions against detergents because the packaging says “NEW AND IMPROVED!” when the detergent formulation is indistinguishable from the detergent in the old package or the “NEW AND IMPROVED” splash graphic has been on the product for decades? When do we simply let sellers hawk their wares and place responsibility on consumers to think through the value proposition, stripped of the sales charm?


Businesses send out and get piles of holiday cards every year but few come close to Merchant & Gould’s cards.

What is the value of a cheap card? What is the ROI on holiday cards? (I am not the only or the first one to wonder.)