Update (June 4, 2018): ATTENTION 2018 WEDDING PARTICIPANTS: Sneaking off to a lawyer repeatedly before the wedding day and then confronting your fiancé with a “prenup” while guests are en route to your destination wedding will likely not fly in Minnesota.

To go all legal on you: In the Kremer v. Kremer case, discussed below after the court of appeals’ decision over a year ago, the Minnesota Supreme Court released its opinion last week on the relationship between Minn. Stat. 519.11, a Minnesota statute governing antenuptial agreements, and the common law as applied to antenuptial agreements that address both marital and nonmarital property and were executed after August 1, 1979 (that is, the effective date of the statute).

The Minnesota Supreme Court teaches us that the statute, Minn. Stat. 519.11, only covers non-marital property. “The only reasonable interpretation of [the statute] is that the validity of provisions regarding marital property remain [sic] governed by the common law.”

The Supreme Court goes on to analyze whether the antenuptial agreement at issue in the Kremer case concerned marital or non-marital property. The majority of the court found that the agreement, by referring simply to “property” in a key clause supposedly “ma[de] it difficult for [the Supreme Court] to tell whether [the Agreement’s] provisions purport to distribute nonmarital property.” Opinion at p.16. Based on this determination, the Court went on to evaluate whether the Kremers’ antenuptial agreement met the common law requirements of “procedural fairness,” that is, whether it was “equitably and fairly made.” (Of course, it was not, as the trial court, the court of appeals, and the Supreme Court all found.)

Justice G. Barry Anderson, dissenting, would have reversed the court of appeals decision and held that the Kremer antenuptial agreement met the statute’s procedural fairness “safe harbor” ( “full and fair disclosure of the earnings and property of each party, and the parties have had an opportunity to consult with legal counsel of their own choice”) (which the Kremer antenuptial agreement apparently did).


Grass Single Nozzle 1Update (May 30, 2018): We learn this week that the defendant City of Gilbert in the lawn mower clipping/alleged police misconduct case, described below, has apparently satisfied its cost judgment of $7,301.87 against the unsuccessful plaintiff in this small-town dust-up of alleged police officer/citizen (mis)conduct.

This post should serve as a seasonally appropriate reminder about the perils of grass clippings. It is also a reminder to plaintiff’s lawyers, who must always warn their clients, even “pure contingent fee” clients, that their worst case scenario can be worse than a recovery of zero dollars.

Update (February 6, 2015): The decision is in: total defense win in the Eveleth grass clipping case, described below. Congratulations to defense lawyers, Pam Vanderweil and Anna Yunker of Everett & Vandwerweil.

Update (January 27, 2015): Consider these facts: (1) There was a relatively innocuous complaint called into 911 of a rural police force about grass clippings being piled on a public roadway on a hot summer day outside of Duluth, Minnesota, (2) the investigating police officer ordered a citizen to stand by the police car while the issue was being investigated, (3) the citizen, allegedly afraid of the officer, defied the officer and walked toward her house, and (4) the police officer, whose order has been ignored, grabbed the citizen, pulled her toward the police car, hand-cuffed her and arrested her.

The parties dueling proposed “findings of fact and conclusions of law” (“FOFCOL”) (here and here) are roughly in agreement as to these facts. The respective parties’ FOFCOLs diverge violently as to many other details of that hot July 2012 afternoon skirmish.

Chief U.S. District Court Judge Michael J. Davis (D. Minn.) had to sit through this trial. Now he must immerse himself in the weeds of this turf battle and decide whether Officer Engelstad or Lanette Heitzman was out of line…


Update (May 27, 2018): We looked through past Minnesota Litigator Memorial Day posts and, over the years, the one below seemed the best to re-circulate this year.

Many of the other prior years’ Memorial Day posts were more closely tied to the true origin of the holiday — the solemn remembrance of those who have fought and died for our country. And it’s always good to remind ourselves of that, the real purpose of this late Spring/early Summer holiday.  But we enjoy the “blast from the past” of the 2011 post and it has a “legal hook,” as well.

Original post (May 27, 2011): Try to imagine how much money you could extort from a Hollywood studio by halting the Memorial Day Release of their blockbuster movie (that’s a $100 million dollar gambit).  It seems that counsel for tattoo artist S. Victor Whitmill entertained that fantasy but it was not to be.  U.S. District Court Judge Catherine D. Perry, in the Eastern District of Missouri, cleared the way for us all to enjoy Hangover II this weekend.

Warner Brothers, however, is not done with Mr. Whitmill, however.  It seems he (and his lawyers?) might become millionaires over this after all

Rumplestiltskin is a bizarre fairy tale that begins with a very difficult situation for a young woman. (Scholars have suggested that the tale is over 4,000 years old, which might explain how weird it is. Very old stories are often very weird.) The young woman’s father, a miller, boasted that his daughter could convert straw into gold. A powerful person (a king, in fact) decided to incarcerate the unfortunate young woman, threatening to kill her unless she converted straw into gold for him. She managed to do so with a little help (with strings attached, of course) from an ugly magical creature.

We will not recite the entire story (you can refresh your recollection here) but we were reminded of it in reviewing the recently filed lawsuit of Ameron Water Transmission Group v. Carstensen Contracting, et al.

Ameron’s complaint suggests that it was put in a tough spot like the miller’s daughter, being required to meet contract specifications that were “voluminous, repetitive, confusing, and contain many errors including misspellings, bad grammar, and incorrect references” (Compl. Para. 37) and being required to perform validation testing that was “highly vague, confusing, and defective” (Compl. Para. 47). Consequently, Ameron has brought a lawsuit seeking a judicial declaration that it cannot be bound by its adversaries’ impossible contractual terms.


Update (May 16, 2018): Registration closes on Friday, May 18.

Original post (April 4, 2018): Minnesota litigators: Mark your calendars for a valuable CLE by the Minnesota Chapter of the Federal Bar Association (May 24, Downtown Minneapolis (IDS)).

Register here.

Why? Check out the detailed agenda here. What do you see? Truly cutting edge legal and legal/techno issues:

  • cell phone forensics
  • the rising tide of hate crime
  • cryptocurrencies
  • arbitration tips for litigators
  • trial tips in the days of vanishing civil trials
  • technology and privacy
  • U.S. Supreme Court review by U.S. Mag. Judge Kate Menendez (D. Minn.) and Aaron Van Oort of Faegre Baker Daniels.

And the list goes on.

Speaking of Judge Menendez: here is a bit of trivia to impress your friends and family: what husband and wife have both argued before the United States Supreme Court? Answer: U.S. Mag. Judge Kate Menendez and her husband, Dan Rogan Sr. Assistant Hennepin County Attorney.

Follow-up question for any U.S. Supreme Court historians out there: is this the first and only example of married U.S. Supreme Court advocates?



When I started practicing law, I thought that all legal matters started with a complaint and an answer, then proceeded to trial, with a judgment, and then maybe an appeal.

Come to find out that there’s this whole category of “special proceedings” that are different.

Special proceedings usually start with a petition or a motion, not a complaint.  And they do not proceed the same way.  There may or may not be any right to discovery.  There may be no right to a trial with witnesses.  The timetables may be different.

Appendix A to the Minnesota Rules of Civil Procedure has a partial list of special proceedings.  The list includes some commonly used mechanisms, such as probate matters, condemnations, and tax proceedings.  Modification petitions in family court and arbitration matters in district court are akin to special proceedings. The list of special proceedings in Appendix A also includes some odd proceedings that you won’t run into too often.  Like “actions on orders of the state fire marshal” and “actions against boats and vessels.”

A separate provision of the appellate rules deals with appeals from decisions in special proceedings.


Photo by Andrew Russeth of Oldenburg and Thiebaud Art

One of the more complicated parts of our justice system (and our country’s governance) is the layers of federal and state law. Almost all of us have an understanding that the Supremacy Clause in the U.S. Constitution elevates federal law over state law. But the question of when federal laws and states laws conflict is not always easily answered.

Take, for example, when someone sues a former employer in federal court under the state’s Whistleblower Act and she seeks to add a claim against her former employer for punitive damages.

There is a Minnesota statute that sets out a procedure and a legal standard for adding a punitive damages claim. There is also a federal court rule, setting out a procedure and a legal standard for adding a punitive damages claim.

They are not identical. What’s a federal court supposed to do?


Update (May 3, 2018): (Maybe a lawyer’s right to speak to jurors (or, more precisely, a judge’s prohibition on a lawyer’s right to talk to jurors?) implicates the First Amendment?) Recent discussion of the issue covered in the original post, below.)

Original post (April 11, 2018): After a recent jury verdict in favor of women’s hockey coach, Shannon Miller, in a lawsuit against the University of Minnesota, defense lawyers sought permission of U.S. District Court Judge Patrick J. Schiltz (D. Minn.) to contact jurors.

Judge Schiltz’s response:

My policy regarding contacts with jurors is as follows: I do not forbid attorneys to contact jurors. At the same time, I do not provide contact information to attorneys. Moreover, when I speak to jurors after trials, I discourage them from talking with anyone who contacts them about the case.

In short, you may contact the jurors, but you will have to locate contact information for them on your own, and you may not find many jurors who are willing to speak to you.

Does that sound like the right approach to you?


Congratulations to NJL lawyers, Karna Berg, Jeremy Robb, Katie Connolly, and Peter Gray, along with their client, Loftness Specialized Farm Equipment, for their complete defense verdict in a breach of contract claim (alleged breach of a non-disclosure agreement) by Twiestmeyer et al., in suit since 2011.

Before the recent jury trial, the multi-million dollar claim had already been to the Court of Appeals twice (see here and here). So, by the time of trial, the case was narrowed down and simplified to this single claim (see the jury instructions here).

It seems that the adversaries once worked together on “improving and manufacturing a grain-bag loading machine” based on the design of a machine that the Twiestmeyer parties had been importing from Argentina.

Having worked together, the adversaries then went their separate ways and Loftness assumed (1) that the parties’ non-disclosure agreement (“NDA”) would not apply to information that was later publicly available, and (2) that Loftness could use the no-longer-confidential information going forward without paying the Twiestmeyer parties for the right. The jury apparently agreed with Loftness.

It almost seems silly that someone would argue that an NDA would require someone to keep something secret that is widely and publicly known (or have to pay for the right to use the now-public information). But the Twiestmeyer parties undoubtedly saw things differently when they first lit the six-year fuse on what turned out to be a bomb of a lawsuit. But stay tuned. Yet another trip to the Court of Appeals could change the case’s ultimate outcome (yet again).

The StarTribune reported a recently filed action in Hennepin County district court this week.The action describes itself as “Petitioner Air T, Inc.’s Rule 27.01 Petition to Perpetuate The Testimony of Yahoo! Inc.”

Apparently, an anonymous person going by the name of “Blueskiesforme1” has been blasting Air T, Inc., on a Yahoo! “message board” with criticism.

Air T “anticipates that it may be a party to an action…[It] expects that any such action will involve claims for…breach of contract for violation of a non-disparagement clause…”

How does Air T know that the anonymous hater is a party to an agreement that includes a non-disparagement clause? The hater, we’re told, “is likely someone with access to inside information…” (See here on p. 2.) What’s the evidence to support that?