Update (October 15, 2018): Lawyers know that something as seemingly simple as measuring a six-year period of time can be an enormous challenge. Six years, starting when?

The thread of posts below highlight that this issue has bedeviled Minnesota litigants and courts in the context of legal malpractice for more than 12 years now (since Antone v. Mirviss).

And we are still wrestling with this incredibly simple but also maddeningly complex question of when to start the six-year clock.

Recently, the Minnesota Supreme Court agreed to accept a petition for review in Hansen v. U.S. Bank, not a legal malpractice case but, closely related, a claim for breach of fiduciary duty.

To start the six-year timer, our courts are supposed to apply two distinct concepts, the “some damage” rule and the “point of no return” rule. But, in many cases, these two different rules point to two different start-times and, sometimes, sharply different start-times.

The facts of Hansen v. U.S. Bank are straight-forward and appear to highlight the problem: Mr. Robert Hansen and his brother entered into a deal to sell property to a buyer, CFP. Between the purchase agreement in 2009 and the closing in 2010, Mr. Robert Hansen died, and U.S. Bank took his place in the transaction as the personal representative of his estate.

Part of the terms of the sale provided that there should have been “due diligence” by an independent CPA to certify the buyer’s financial forecasts (since the sale would entail payments to the sellers made over time). U.S. Bank allegedly failed to ensure that this term was met.

If you’re still reading this admittedly dry reading, you know where this is going.

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Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

A January 11, 2017 explosion at a truck manufacturing facility in (appropriately named) Dodge Center, Minnesota caused many serious injuries.

It is alleged that a company, Swagelok, failed to properly design, manufacture, test, and inspect a hose assembly, which is alleged to have caused the devastating explosion

(See the complaint here. The complaint, by the way, is impressive advocacy in its thoroughness. Credit goes to plaintiff’s counsel at Pritzker Hageman. Warning: it contains graphic images of terrible injuries. ).

This week, U.S. Magistrate Judge Katherine M. Menendez (D. Minn.) ordered that Swagelok could not “conduct independent destructive testing of critical evidence without the input, involvement, or observation of any party.”

The frustrating aspect of Judge Menendez’s order is that she does not identify what possible justification Swagelok articulated to justify its proposed secret destructive testing.

Is this otherwise known as a proposal to conduct court-approved secret evidence destruction? How not? How did anyone think that would fly?

The court refers to letter briefs from both sides in its order but these letter briefs do not appear to have been filed in the case so they are not publicly available. So we have to speculate.

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Congratulations to lawyers Christopher Kuhlman and Joe Crosby for their $8.98 million dollar jury verdict in a medical malpractice case against Allina Health Systems on behalf of their client, Sirena Samuelson (and her son). (The verdict came late last month and the Star Tribune covered it here.)

The case arose out of problems in the delivery of Ms. Samuelson’s baby, who appears to have suffered life-long injuries related to shoulder dystocia during delivery.

From a review of the court file, it appears that this case was hard fought. The defendant’s “motion to exclude the reptile,” in particular, caught our eye. Presumably, personal injury litigators are familiar with this strange creature of a motion but most readers, probably not.

The motion is not about reptiles (the link is to another case unsuccessfully seeking to exclude the reptile). The ideas and advice in a 2009 book, REPTILE: The 2009 Manual of the Plaintiff’s Revolution, appear to strike such fear in defense lawyers that they bring motions to prevent lawyers from using the tactics described in the book. The book discusses plaintiffs’ lawyers’ appeals to the “reptilian” part of the jurors’ brains. The strategy is described in greater detail here.

How dare lawyers try to appeal to a jury’s sense of physical safety or safety of their community? How dare they be so deceitful, when trying a case that implicates physical safety and the safety of the community, to refer to physical safety and the safety of the community? Have they no shame?

With all due respect to the super successful authors of REPTILE (and the defense lawyers who seem to tremble before their insights, and to all plaintiffs’ lawyers who swear by them), maybe jurors in cases like this one are simply reacting to the evidence of a life-long disability that appears to have been caused by substandard medical care?

 

 

"Collection Plate." Flickr Creative Commons. Photo by Leo Reynolds.

“Collection Plate.” Flickr Creative Commons. Photo by Leo Reynolds.

(Original post (1/11/14), updated/revised: 6/5/15, 11/20/17, 10/9/18): The Minnesota Litigator blog of news and commentary on Minnesota civil litigation is now in its TENTH year and we have posted more than 2,000, 27 interviews with notable Minnesota litigators, and 6 interviews with state and federal judges. We have twice been listed as a Top 100 Law Blog throughout the United States by the American Bar Association (2012, 2016).

Many Minnesota judges, some Minnesota Supreme Court Justices, legions of lawyers, and my mother have all shared their appreciation of Minnesota Litigator with us.

MINNESOTA LITIGATOR CALL TO ACTION: Contact Minnesota Litigator and volunteer for a guest post.  Show the community (1) that you are an intelligent lawyer (or legal services provider of any kind — e-discovery expert, paralegal, or legal secretary) and a good writer with insight, (2) that you know a thing or two about Minnesota litigation,  (3) that you care about improving the Minnesota civil litigation system by actively sharing experiences or ideas.

We recognize that this may be difficult for lawyers in larger law firms, in particular, that have bureaucracies, that have their own firm websites’ voracious appetites for fresh content.  We get that.  But you can still draw readers to your firm posts, at a minimum, by telling your public relations team to keep Minnesota Litigator in mind — to help get the word out.

Also we immensely appreciate tips about interesting cases and/or interesting legal issues important to Minnesota civil litigators or their clients. Neither Minnesota Litigator nor LEVENTHAL pllc pay money or other consideration, directly or indirectly, for tips or suggestions, but we will give credit, kudos, and we will include you in our mindfulness prayers and/or an invocation to your designated preferred deity or deities (carnate or incarnate, ubiquitous or corner office), as appropriate.

THANK YOU!

Update (October 3, 2018): The Minnesota Supreme Court accepted the petition for review of the case described below and the case has gotten some national attention. On Monday, the Minnesota Supreme Court heard oral argument.

The issue on appeal is, on one level, extremely simple: if Debbie Defendant falsely accuses Peter Plaintiff of domestic abuse and Peter Plaintiff offers no evidence of actual damages, does Peter still have an actionable defamation claim under the “defamation per se” doctrine?

Peter J. Bursch argued on behalf of defendant Jacquelyn Jorud.

Mr. Bursch argued that “defamation per se” doctrine is antiquated and should be wiped off the jurisprudential map; its origins are in English ecclesiastical court and it makes no sense in our current legal system.

His back-up arguments were that the defamation defendants in Maethner v. Someplace Safe should enjoy the same protections that “media” defendants get under established U.S. First Amendment Constitutional law and/or the court should hold that an earlier Minnesota Supreme Court decision, Richie v. Paramount Pictures, should apply, requiring “a reputational harm prerequisite.”

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Ouroboros: The Self-Devouring Snake

Update (October 1, 2018): Sometimes, clients push their lawyers to take extreme positions, “scorched earth tactics,” or a “take no prisoners” strategy.

Our ethics rules seem to “punt” on the question of who bears ultimate responsibility as between the lawyer and the client for over-the-top tactics. This seems appropriate. Lawyers are advocates. Lawyers are their clients’ agents. It’s a unique relationship and a bright-line rule of responsibility for litigation strategy just won’t work.

But, if you have litigious clients and you do their bidding, you might be the next defendant in the cross-hairs. Who will be held responsible (and liable) for scorched earth tactics that back-fire?

Crosshairs by Trevor Tinker (Flickr Creative Commons)

This comes to mind in a legal malpractice claim, which we only recently caught wind of, brought against distinguished trial lawyers from Dorsey & Whitney, LLP by an unhappy Dorsey ex-client. (The amended complaint is here.)

It seems to us that the malpractice plaintiff, Mr. Nielsen, ordered his extraordinary and elite legal ninjas into battle and, when they attacked as instructed and were decisively repelled (at a huge cost borne by many, including Mr. Nielsen, himself, his adversaries, and the court system), Mr. Nielsen fired them. Then he sued his soldiers for following his orders.

Of course, Mr. Nielsen’s position, we have to assume, is that we have the narrative all wrong. Presumably, we can summarize his position to be that he sought sage legal advice from highly accomplished and distinguished lawyers and, instead, he was whipped up into a litigious frenzy by lawyers more eager to bill hours than to serve their clients effectively. (This narrative, incidentally, is hard to square with Mr. Nielsen’s long history of litigiousness.)

In our view, the bottom line for Minnesota Litigator readers is that aggressive lawyering exposes lawyers and law firms to significant risk (legal, financial, and reputational).

If a client goads his lawyers on to take very aggressive (and expensive) positions, the lawyers best have that client influence well-documented and, even if they do, they might want to consider the risk of “buyer’s remorse” if the costly strategy fails.

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SEO - Search engine optimizationUpdate (September 26, 2018): Here we go again. In the linked complaint, another law firm charges Findlaw with fraud, among other causes of action, for promised web-based marketing help that fell far short of the law firm’s expectations.

Minnesota Litigator has fielded off-line calls from lawyers dissatisfied with Findlaw’s services more than once (website design, SEO marketing services, internet attorney marketing services, and social media engagement services).

Too bad these lawyers and law firms did not find our posts through a google search BEFORE hiring Findlaw (let alone before suing it).

One has to wonder what kind of due diligence these lawyers and law firms did before committing big money for Findlaw’s SEO optimization, etc. (The Friday & Cox law firm claims to have paid nearly $300,000 and Findlaw counterclaims for an additional $36,000+.)

Did these lawyers and law firms require that Findlaw meet any concrete goals? Did they require any assurances or commitments at all as to any results of Findlaw’s work? Did they seek and obtain references or testimonials from other law firms that used the same products? Did they seek competitive bids?

If you’re curious about what distinguishes supposed “good” search engine optimization, take a look at Friday & Cox’s specific complaints about Findlaw’s work for the law firm (Complaint, Para. 16, a-v). (And ask yourself, as between Findlaw and the law firm, which is responsible for these alleged short-comings?)

Many lawyers are driven, smart, and accomplished in their field (that is, lawyering) but are bad business people. In our view, Findlaw is one of the best at exploiting this vulnerability.

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Update post (September 21, 2018): Notch another successful prediction for Minnesota Litigator as Prof. Kristin Naca has lost her lawsuit against Macalester College on Macalester’s motion for summary judgment, discussed (and predicted) below. We also covered the case here and here.

The opinion by U.S. District Court Judge Patrick J. Schiltz (D. Minn.) granting Macalester’s motion includes some stinging criticism of Plaintiff’s counsel, as well, which comes as no surprise given the history of the case and the lawyer.

Before turning to the facts underlying the parties’ dispute, the Court pauses to note that it has been unusually challenging to determine whether Naca’s version of events is supported by evidence in the record because of two unfortunate tendencies of her counsel: First, he frequently asserts facts in his briefs with no record citation or with a citation to something that does not support the assertion (and may, in fact, be completely irrelevant to the assertion). Second, he often cites to the record in a manner that does not match the manner in which he organized his evidentiary submissions, making it difficult (and occasionally impossible) to locate the document or part of a document to which he is ostensibly referring.

In some small but persistent number of cases, it seems as if lawyers think they can bamboozle a court simply by making assertions and adding citations that have no relevance to the assertions. Courts and adversaries are not bamboozled, of course, but they are greatly burdened by the task of ferreting out the fallacies. There appears to be no remedy for genuine costs that this kind of lawyering imposes except for what the Judge did in this case, which is to impose a reputational penalty.

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Scribe

Old School Large Format Printer

Ambassador Press, Inc. (“Ambassador”) is a Minnesota-based printing company that went to Durst Image Technology U.S., LLC (“Durst”) to buy a large format printer.

As Ambassador discussed the potential purchase with Durst, Ambassador was very concerned about the potential risk of “print head” failures (and the delay and added expense that they would cause, particularly when the printer aged out of its two-year warranty). Ambassador repeatedly sought reassurances on this point when it discussed the potential printer purchase with Durst.

In response to Ambassador’s concerns, Durst boasted relatively low printer head failure rates and suggested that somewhat higher failure rates, when they occurred, were due to misuse or poor maintenance practices by the purchasers. But Durst related that, “For printers with more than one year in service, one unit had no print head replacements, two units had one replacement, and three units had two replacements.”)

Ambassador, relying on these representations, bought the Durst printer. “Ambassador alleges that the printer has thus far required 54 replacement print heads, only 11 of which were covered by warranty. Ambassador claims to have paid over $260,000 for the 43 heads that failed after the warranty expired.”

On these facts, do you think that Ambassador has a viable fraud claim against Durst?

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Photo by Jonathan Rotondo-McCord

Update (September 14, 2018): The posts below recount the unfortunate trajectory for Minnesota lawyer, Todd A. Crabtree, and this week, the sentence was meted out for the perceived wrong-doings.

One, in particular, caught our eye: Mr. Crabtree is found to have improperly notarized his own document.

Query: in a transaction between A and B in which A is a notary, why can’t A and B both sign the document and A swears and attests as a notary that the signatories are who they say they are?

Why can’t notaries notarize their own signatures on documents?

Notaries typically perform a few different steps when notarizing a document. They verify the signer’s identity, watch as the signer signs the document, and lastly the notary places his or her official seal on the document (note: some states do not require seals). The final seal placed on the document verifies that the notary checked the signer’s identify and watched as he or she signed the document.

Isn’t the notary in a position to know if the notary himself signed the document?

The rationale for prohibiting notaries from notarizing their own documents is that requiring a third party to notarize supposedly “add[s] another layer of security to the document.” The requirement bakes a third-party witness into the transaction. This, of course, is an extremely thin layer of security but an additional layer nonetheless. (Co-conspirators are a dime a dozen and notaries do not vet the transactions they notarize for signs of fraud, duress, or other wrong-doing, they just verify the identities of the signers).

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