map-525349_1280Most lay people and many novice litigators do not know what “pleadings” are. I did not know when I started practicing in the year of the first flip phone, the Motorola StarTAC, and 20 years B.T. (before the reign of Emperor Trump the Terrible).

When I started working as a lawyer, the firms where I worked kept “pleadings” in a “pleadings folder” or a “pleadings spindle,” and the law firms included every document connected to a case that included the case caption in these “pleadings files” (complaint, answer, scheduling order, interrogatories, document requests, motions, and so on). Naturally, I assumed these were all pleadings.

These are not all “pleadings.”

“Pleadings” are “the formal statements of the cause of action or defense.” They are critical to our legal system. They are complaints, answers, counterclaims, cross-claims, third-party claims and responses thereto. They are the metes and bounds, i.e., the boundaries of the litigation, identifying who, exactly, is suing, who is being sued, and for what. The pleadings also include what the defenses to the claims are.

It is tricky for courts to decide when a litigant is allowed to amend a pleading. High stakes might ride on the decision. At times, amendment of a pleading can turn a case upside down, adding months or even years to the case. At other times, denying a litigant the right to amend a pleading can destroy the litigant’s case by foreclosing the chance for the litigant to correct an error, to add a party, a claim, or a defense.

Courts must strike a balance.



Be the first person to name the courthouse and win a $10 gift card. (Put the answer in a comment to this post.) (And, no, this was not a set from the dystopian movie classic, Brazil,  but maybe it could have been.)



Thief Criminal Burgler RobberUpdate (October 14, 2016): The Securities & Exchange Commission (“SEC”) brought suit against Mr. Louks for securities fraud in September 2015. The SEC accuses Mr. Louks of defrauding some 90 “investors” in FiberPoP, a bogus “investment opportunity.” This is a civil action, not a criminal prosecution. Therefore, Mr. Louks is not entitled to the appointment of a public defender as indigent defendants in criminal prosecutions are as a matter of United States constitutional law.

When Mr. Louks was alleged to be collecting money from investors after the SEC sued him (the subject of the earlier post, below), he was ordered by the Court to stop and to submit an affidavit to the Court promising that he had stopped.  Without the benefit of counsel, he crafted an affidavit that was unsatisfactory in the opinion of U.S. Judge Patrick J. Schiltz (D. Minn.). 

This resulted in Mr. Louks be sent to jail for contempt of Judge Schiltz’s order.

Fortunately for Mr. Louks, Judge Schiltz then saw to it that Mr. Louks was appointed a public defender, who helped Mr. Louks with a clearer second amended affidavit. (The explanation for the hand-written page of the affidavit is here.) And Judge Schiltz promptly ordered Mr. Louks’ release from jail and the contempt order purged.

This calls to mind the “Civil Gideon” movement, an effort to establish a right for the poor to be represented in civil litigation, not just criminal cases.

The primary counter-argument against proponents of Civil Gideon, presumably, is that such a right would cause an explosion of civil litigation. It would over-tax and over-burden court systems that already struggle under their current caseloads. But maybe it could be limited to certain kinds of cases? Louks’ situation highlights the fact that the line between civil and criminal law can blur. Being forced to navigate our legal system without a lawyer can lead to devastating hardship in either arena.


Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

I recently posted about an 81-page complaint that U.S. District Court Judge Patrick J. Schiltz (D. Minn.) threw out of court, finding it to have been a violation of Rule 8, the federal rule requiring that complaints be “short” and “plain.

What about a 48-page complaint in a class action? Too long? Too short?

Plaintiffs bring this class action lawsuit individually and on behalf of similarly situated members of the Classes (defined below) against Defendants for their refusal to pay for Harvoni—a medically necessary treatment that can effectively cure the chronic Hepatitis C (“CHC”) of Plaintiffs and members of the Classes. Defendants wrongfully denied coverage for Harvoni based on a desire to decrease costs and increase profits, in breach of the health insurance contracts Defendants entered into with Plaintiffs and members of the Classes and the implied covenant of good faith and fair dealing and, also, in violation of the Consumer Fraud Act, Minn. Stat. § 325F.69, et seq. (the “CFA”) and the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”).


Shumway Hall, Shattuck-St Mary's School, Faribault, Minnesota, photo by Jonathunder

Shumway Hall, Shattuck-St Mary’s School, Faribault, Minnesota, photo by Jonathunder

Update (October 5, 2016): U.S. District Court Judge Ann D. Montgomery (D. Minn.) denied Shattuck-St. Mary School’s motion for summary judgment and its motion to exclude Plaintiff’s expert today. The only “success” that the school might celebrate is that Judge Montgomery agreed with U.S. Mag. Judge Steven E. Rau’s determination that two of the plaintiffs cannot make claims for punitive damages. Judge Montgomery did, however, overrule Judge Rau as to one of the three plaintiffs, who will be allowed to make a claim for punitive damages.

A question with no answer: How can one settle on a dollar amount to compensate for the injury caused by sexual abuse?

An irrelevant side note: Plaintiffs’ expert in the case against Shattuck-St. Mary’s School, arising out a former teachers sexual misconduct is named Prof. Charol Shakeshaft. Prof. Shakeshaft is noted for her studies on sexual abuse of students by school staff. One might suggest this is an example of “nominative determinism,” even if not on the same level as the real-life urologist Dr. Richard Chopp.

Update (July 22, 2016): On the heels of the recent post about the tragic death of Tristan Seehus, I note another lawsuit against a school based on the school’s alleged inaction in the face of alleged harm to students: Doe v. Shattuck-St. Mary’s School, originally discussed here a while ago (see below).

Shattuck-St. Mary’s brought a motion for summary judgment, which was argued earlier this week before U.S. District Court Judge Ann D. Montgomery (D. Minn.) Here is the school’s legal argument in support of its motion. In a nutshell, the school argues that it did not have knowledge of its former teacher, Lynn Seibel’s criminal sexual conduct with Shattuck students, and that the teacher’s conduct was unforeseeable. The school also argues that a statute of limitation bars the claims and that plaintiff suffered no compensable damages. The plaintiffs’ response is, predictably, that the school did have knowledge, or that it should have, that the misconduct was foreseeable, that the statute of limitations does not bar plaintiffs’ claims, and that plaintiffs did suffer recoverable damages. Here is the plaintiffs’ response to Shattuck’s argument. And, finally, here is the school’s reply brief.

It is difficult to predict how this motion will fare although it is safe to say that the legal standard applicable to the movant, that is the school, can be difficult to attain.


Fishing IconUpdate (October 5, 2016): To the list of large Minnesota law firm blogs in the original post, below, you can now add Robins Kaplan! At least, as of today, Robins Kaplan is disseminating an email allowing people like me to “subscribe” to their blog posts. Judging from the fare on the Robins Kaplan site as of today, it looks more like the Michael Reif blog than the Robins Kaplan blog, with seven posts by Mr. Reif and just one from another Robins Kaplan lawyer, David Shemano. But presumably that will change over time.

Putting that aside, based on the significant investments by the large law firms listed in the post below, I think we have to conclude that law blogs are, in fact, good business.

Original post (February 25, 2015): I am frequently asked if Minnesota Litigator results in actual legal work for LEVENTHAL pllc, my law firm. Will blogging get your law firm business?

Judging from what the largest law firms in our state are doing these days, assuming that these sophisticated multi-million dollar businesses do not allocate resources without a profit motive and with due diligence, the answer might well be yes (see Faegre, Fredriksen, Dorsey, Stinson Leonard, Briggs). Legal blogs are worthwhile legal marketing.

On the other hand, many other top Minnesota firms do not have blogs. And also, with respect, many top U.S. law firms waste boat-loads of money on ill-conceived marketing. Couldn’t it be that some law firm blogs successfully bring in work and some don’t? The nature and quality of the blogs must factor in.  Also sometimes it is hard to trace the origin of new business to one’s blog, but couldn’t the benefits, the new cases and clients, come indirectly from, say, lawyer-to-lawyer referrals inspired by law firm blogs?


Wrestling_glenninvite020Update (October 5, 2016): From time to time, I brag about Minnesota Litigator successful predictions (here and here, for example). In fairness to readers, I have to fess up and take my lumps when my predictions fail. I thought that Exergy’s defenses to Fagen’s lawsuit were worse than anemic from the get-go but U.S. District Court Judge John R. Tunheim (D. Minn.) denied Fagen’s motion for summary judgment in part and tossed out Fagen’s complaint against the Hawley Troxell law firm, which firm managed the pretty neat trick of advising a client that Article 9 of the Uniform Commercial Code (“Article 9”)  did not apply to a transaction then arguing later, on behalf of that client’s adversary, that Article 9 did in fact apply to the transaction, without triggering liability.

Without an expert on damages, Fagen contends that Exergy’s Article 9 claim cannot survive summary judgment. Though it may very well be that Exergy will be unable to produce admissible evidence of its damages at trial, the Court is unwilling to make this finding at the present time. Exergy contends that it has another expert who can opine on its Article 9 damages – James Carkulis. And Fagen has not argued that Carkulis’ opinions on this topic should be excluded. The Court will accordingly wait to resolve this issue until a later date.

(Order at p. 19. Emphasis added.) This was the most surprising part of Judge Tunheim’s order, to my mind. Summary judgment is “put up, or shut up” time in civil litigation. It is the time when the other side can point to a part of your case and say, “You have no evidence on key element, X, so you lose,” and, in response, under the rules, you must come forward with admissible evidence on key element, X to survive summary judgment.

Typically, contentions of what one hopes to show at trial, effectively an I.O.U., do not hold water in responding to a motion for summary judgment, yet Exergy’s I.O.U., on evidence as central to the case as damages, seems to have been granted full faith and credit.

ContortionistAnd let’s dig a little deeper into Hawley Troxell’s (“HT”) aforementioned and surprisingly permissible advisorial flip-floppery.  HT originally gave Fagen an opinion letter in which it held Article 9 did not apply to a transaction which eventually became the subject of this litigation.  Now representing Fagen’s opponent Exergy, HT currently holds that Article 9 did in fact apply to that transaction, an obvious about-face.  The Court held that Fagen could not hold HT liable for professional malpractice because HT’s diametrically-opposed subsequent opinion was offered to a different client. (Order at p. 41-44.)

“While Hawley Troxell unquestionably owed Fagen a duty of care in drafting and rendering the opinion letter, Fagen has not cited, and the Court cannot find, any authority supporting the proposition that this duty extended to prevent Hawley Troxell from filing counterclaims for Exergy during this litigation.” (Order at p. 43.)

But if HT owed Fagen a duty of care in drafting and rendering its opinion letter in which it found Article 9 inapplicable, does it not seem HT breached that duty because the advice it gave was dead-wrong? At least, the Court held that HT was wrong when it advised Fagen and was right when it contradicted its own opinion on the Fagen/Exergy transaction….


SpankingMore than four years ago, now, I denounced a lawyer-rating site, RateStars, which no longer exists. When the site operated, it anointed Mr. Peter Nickitas the best lawyer in Minneapolis. Other sites suggest a slightly different appraisal of Mr. Nickitas: Avvo, for example, suggests that buyers of legal services exercise “extreme caution” with regard to hiring Mr. Nickitas. [Ed. note: I am no fan of Avvo either. Consumers of legal services must look with great skepticism at all lawyer marketing, on-line or otherwise, and, in particular, beware of marketers who make all of their money by acting as shills for lawyers.]

This past Friday, U.S. Judge Patrick J. Schiltz (D. Minn.) struck the 81-page complaint of former Macalester Professor Kristin Naca, a client of Mr. Nickitas, against Macalester College, filed just two days before. (Here is the order striking the complaint.)

You might think of a legal complaint as a literary genre, but it is not and it must not be like a novel, a poem, a play, or a libretto. As a genre, a complaint should be more like a Material Safety Data Sheet (“MSDS”) or a cooking recipe. That is, it is technical and specialized literary form with a narrow functional purpose. Complaints must be “short and plain” as Judge Schiltz notes Rule 8 of the Federal Rules of Civil Procedure requires. Why?


mug_1475030122740_2083710_ver1-0The Star Tribune reported last week that John V. Heath, “an Edina financial advisor,” pleaded guilty to stealing money from an elderly client incapacitated with dementia. He set up an email account, “” as part of the scheme. Indeed.

As a civil litigator, what I find worth noting about Heath’s fraud is that Wings Financial, Mr. Heath’s bank, caught on to the simple scam, having noticed “unusual activity” in the account, and notified authorities.

We know, however, from another recent post, that banks very often skate free when their accounts are used in financial crimes.

When should we hold banks responsible for policing the money flow in and out of their accounts? When should we treat them as innocent bystanders who have no duty to babysit accounts and protect customers from scammers?


Photograph by Maura Teague

Photograph by Maura Teague

Update (September 28, 2016): Could Wells Fargo v. United States, discussed in several posts below, actually go to trial at the end of October? Sure seems like it. The Bank and the Feds have been litigating the case for 6+ years, which would have allowed several opportunities for settlement along the way.

The linked correspondence from U.S. District Court Judge Patrick J. Schiltz might be considered a precious document for Minnesota civil litigators. It reflects some of the nations’ best civil litigators’ questions to the trial court judge about their preparation before trial and the judge’s straightforward and clear answers to their questions. Unfortunately, in most civil litigation, lawyers do not have the opportunity (or, far too often, fail to avail themselves of the opportunity) to get the court’s guidance on how trial will be conducted.

The Wells Fargo v. U.S. trial Q&A highlights the logistical challenges that civil litigators confront.

I have likened civil litigation to staging a play with no rehearsals and with some of the actors and crews (that is, one’s adversaries) determined to make the production a failure.

On top of that, Wells Fargo v. United States is a complex multi-million dollar tax dispute to be decided by twelve ordinary Minnesota citizens (with the court’s guidance). Best of luck to the parties, the battalions of lawyers and their teams, the Court, and, above all, to the jury.