Update (January 24, 2018): Viking Forest Products, LLC v. Twin Mills Timber & Tie Company, Inc. is a nauseating case.

The allegations in the case were that Defendant Twin Mills Timber & Tie sold Viking Forest Products non-existent “crane mats” (used in the construction industry as stabilizing pads and bridging for the movement and operation of cranes and other construction equipment). Twin Mills allegedly accepted payment for crane mats from Viking and then failed to make them to the tune of $797,738.29.

This appears to be a classic zombie case, no genuine dispute but the case nevertheless lumbers on (pun intended). How much money should it take to Viking to obtain a judgment against Twin Mills? How much time?

The case started as an unopposed arbitration in the Spring of 2016. It took the rest of 2016 to get the arbitration award (which did not include any award for the claimant’s legal fees). The Pyhrrhic battle to get the arbitration award converted to a court judgment (through confirmation of the arbitration award and entry of judgment) has been pending in U.S. District Court (D. Minn.) for over a year now. It is on-going.

This is simply one more of thousands of lawsuits that reflect our broken legal system. Presumably, Viking has incurred over $100,000 in legal fees for, essentially, nothing to date (and who knows when it will get its hand on cash?). It is no wonder that lawyers are heavily criticized by many in our society who correctly suggest that too often the system does not work for anyone other than the lawyers.

We are at a loss as to how to address this massive failure. How about one simple adjustment: a more liberal use of fee-shifting when defendants needlessly and in bad faith prolong litigation? (See Singer, Jacob (2010) “Bad Faith Fee-Shifting in Federal Courts: What Conduct Qualifies?,” St. John’s Law Review: Vol. 84: Iss. 2, Article
4). Conduct sufficient to allow for “bad faith” fee-shifting should include when “action should have been unnecessary and was compelled by the party’s unreasonable, obdurate obstinacy.”

But you might reasonably ask: if a company is going to ignore an $800,000 debt, how will adding another couple hundred thousand dollars for the other side’s legal fees speed up resolution? This is a fair point.

How about apportioning some of the fees to be paid by the lawyer or law firm of the bad faith litigant? After all, most often it is the lawyers who embody and promote parties’ unreasonable, obdurate obstinacy, choking the legal system with reams of garbage.

Presumably, the bar would find any such broadened use of Rule 11 deeply objectionable. They would argue that it impedes their obligation to be zealous advocates for their clients. (Coincidentally, it would result in them making less money, of course.) Perhaps it would temper or cap the zeal without damaging its clear and important value to our adversarial system?

It seems that somehow the calculus must change to clear our legal system of zombie cases.


[Editor’s Note: See the comment, below. It is worth noting that Mr. Capistrant’s discipline took a long time but it is not as if he was practicing law during the drawn-out process. The question still remains: why did it take as long as it did?]

Joseph Michael Capistrant was a Minnesota lawyer whose misconduct was bad enough to warrant disbarment.  He never cooperated with the Minnesota Office of Lawyers Professional Responsibility (the “OLPR”) for wrong-doing before his suspension in 2018.

In late November 2015, the OLPR gave Mr. Capistrant a deadline to cooperate by 1/14/16 or charges would be filed.  But then the OLPR did not file charges against Mr. Capistrant for more than a year after the deadline, on 2/1/17.

It appears that over two years passed between the date that OLPR had information indicating that Capistrant had committed misappropriation from a client and refused to cooperate with the investigation and the date on which Capistrant’s license was finally taken away.

The length of time for OLPR ethics investigation is puzzling and troubling. There are over 100 complaints that have been pending before the OLPR for over one year. There has been some progress in addressing the serious backlog over the past several years but much more is needed.

Minnesota Supreme Court Justice David Stras has been credited with efforts to speed up action and resolution by the OLPR  in recent years but he appears to be on his way to the U.S. Court of Appeals for the Eighth Circuit.

Who will replace him and will they appreciate that there is a serious and on-going problem at the OLPR?


The First Amendment of the U.S. Constitution protects the right to free speech (among other critical rights, of course) and even speech that many of us find abhorrent.

Many find disrespecting the national flag or refusing to stand during the pledge of allegiance abhorrent but that is protected “symbolic speech.”

“It is poignant but fundamental that the flag protects those who hold it in contempt,” U.S. Supreme Court Justice Anthony Kennedy has written. In protecting flag protesters, can the government ban “disrespect” of those showing “disrespect” for our nation’s flag? Of course not. That is logically impossible.

According to the now-disbanded Edina High School Young Conservatives Club (EHSYCC) and its lawyers, however, this is what the Edina School District has done. And, in response to the school’s motion to dismiss, EHSYCC seeks to bring a summary judgment motion in its favor right at the start of the lawsuit.


Update (January 19, 2018): In the original post below, we decried the soft discipline of a Minnesota lawyer for serious misconduct. Although we are not trained in mental health diagnosis, in our view, the extraordinary misconduct could only be excused by mental illness.

Therefore, in the post below, we advocated for a stiffer penalty than our disciplinary authority recommended (a 60-day suspension).

We did not discuss the possibility of a mental health evaluation in the original post because the disciplinary authority imposed the requirement of a mental health evaluation. So that, at least, was covered.

Now the Minnesota Supreme Court has approved and agreed on the 60-day extension but reversed on the requirement of a mental health evaluation.

Rather than making our counter-argument from scratch here, we recommend the concurrence/dissent of Justice McKeig (linked here at page 27) making these exact points.

In addition, we have some further points (after the jump):


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.

Time’s up. Our society has changed. The notion of “women’s rights” has evolved from a rallying cry of activists 100+ years ago to such a fundamental and widely shared value that the expression almost seems absurd.

Who on earth ever questioned that women should have equal rights? Was it once a controversial opinion that women treated equally to men? Was it widely accepted that women could be routinely objectified and sexualized without consequence? These questions are naive and rhetorical, of course. Our society’s struggle for equal rights for men and women is work-in-progress but times are changing.

And the change is not only about interactions between men and women.

A lot of exploitation that has been accepted for a very long time is now being exposed and rejected.


“A Tough Knot to Crack” (photo by Jay Fanelli)

Update (January 11, 2018): Yesterday, the Minnesota Supreme Court heard argument in the Savoie case, described below. It was not very illuminating and so, to us, it was disappointing.

A key problem in the case is that the Court appears to be of the opinion that, under Minnesota law, a personal representative (“PR”) of a decedent can bring no claim that the decedent could not have brought when the decedent was alive (based on subpart C of this linked statute).

It seems to us, however, that this is an incorrect reading of the statute. It seems to us that the rule in the statute — that the PR has the same standing as the decedent had immediately prior to death — is a floor, not a ceiling to the PRs standing and authority. It provides that the PR has standing to bring decedent’s “in vivo” claims but it does not limit the PR or prohibit the PR from bringing all “posthumous” claims, as well (except for claims like defamation that do not survive death).

Take this situation: Doe dies on 1/1/2017. A PR/Trustee is appointed on 1/31/2017. On 2/15/2017, Jane Roe goes into Doe’s former home and simply removes personal property that she thinks she should inherit. Doesn’t the PR/Trustee have standing to bring a claim against Roe for conversion? Obviously, Doe did not have standing to sue Roe when he was alive. She hadn’t taken anything yet.

The statute provides: “a personal representative of a decedent…has the same standing to sue and be sued in the courts of this state…as the decedent had immediately prior to death.” We are not trust/estate experts. Maybe we are wrong. But we read this to mean that a personal representative can “stand in the shoes of the decedent” for all the same kinds of claims that the decedent could have brought when alive (and for like claims if they are allowed after death).


We recently profiled retired U.S. Magistrate Judge Keys, and he pointed out what we already knew: it isn’t just older lawyers who have a lot of interesting things to say about the practice law. Mentoring flows both ways from junior lawyers to senior lawyers as well as senior to junior.

Minnesota Litigator (“ML”): Given the long line of success in your career, I thought you, Emily McNee, would be a great person to talk to from your insight as a relatively junior lawyer.

Emily McNee: I appreciate that. Happy to be here.

ML: How long have you practiced?

Emily McNee: Five years now. I graduated from law school in 2013 and then spent a year clerking for Judge Louise Bjorkman at the Minnesota court of appeals. And then, from there I joined Littler Mendelson. So, I’ve been with Littler about four years.

ML: Maybe you’re close enough to your own decision to go to law school to advise people who are now graduating from college and wondering, “What next?”

Emily McNee: And I also teach at the University of Minnesota Law School as a legal writing adjunct. So, I’m close to the law school in that way also. In terms of advice for people thinking about law school, I think they need to decide if being a lawyer is something that they’re interested in. There are a lot of people who find the experience of law school enjoyable, but then they finish school and it’s sort of, “Well, what now?” And they haven’t necessarily thought about that on the front end.

Going to law school and being a lawyer are two different things. I think there are a lot of avenues coming out of law school, but for people who are interested in working with people, helping to solve problems, intellectually-challenging issues, law school and being a lawyer can be a good fit.

ML: Anything about the practice of law come as a surprise to you?


Mobile Homes, New Ulm, MN (1974)

Update (January 8, 2018): Should any governmental body have the power to regulate mobile home parks? To impose rules as to fences, garbage receptacle visibility, permitted neighboring structures (car parks, sheds, etc.)? Presumably few of our readers spend much time in this area of governmental regulation but all of us know that the government imposes rules on various aspects of how we use and maintain our own property. If some public body has the right to regulate conditions in mobile home parks, who should it be? The federal government? The city? The state?

In the original post, below, plaintiff-mobile home park residents won a big decision based on the court’s apparent sense that the city of Burnsville was targeting the residents for being “ethnically diverse.”

On appeal, however, Judge Francis Connolly for the Minnesota Court of Appeals reversed the trial court, whose decision was premised on the preemption of local regulation by federal regulations related to mobile homes.

Numerous federal courts have held that the Act’s express preemption provision is limited to prohibiting states and municipalities from regulating the “construction or safety” of manufactured homes in any manner that is not identical to federal HUD standards.

As reprehensible as regulations being used to target “ethnically diverse” citizens, in particular, clearly the regulation of mobile home parks is more appropriate at the local level than the federal level. So we are confident that the Court of Appeals got this one right.

As we note below in the original post, this dispute is a matter of public record and elected city officials are on the record as to where they stood. So it seems that plaintiffs’ recourse is at the ballot box rather than the courthouse.


Photo by Molly Steenson

Normally, we have a holiday season hiatus at the end of every calendar year, a bit of R&R, stepping back from the relentless demand of a full time legal practice and legal blogging.

This year is different.

We are spending our holiday season preparing for a trial scheduled to start on January 2, 2018.

Talk amongst yourselves….

We’ll be back…

In the meantime, thanks to all of our loyal readers, contributors, tipsters, and fans.