Timing.

Most people know about statutes of limitation that limit the amount of time that one has to bring a lawsuit, to avoid “stale claims,” that is years-old claims against defendants who are compromised in their abilities to defend lawsuits due to the passage of time.

In some cases, because of the threat of an expiring statute of limitation, there can be urgency tied to starting a lawsuit.

In other cases, because a threat is imminent or ongoing, there can be urgency tied to starting a lawsuit.

However, in many cases, there is no urgency and a common mistake that civil litigants feel is impatience, even a sense of outrage or injustice, and they rush what should be a careful and deliberate process.

Clients need to keep in mind that, once a lawsuit starts, it can go in unanticipated directions; there can be unexpected time-constraints and demands. Pre-suit (assuming no statute of limitations issue or other pressures), is the proverbial “calm before the storm” and clients need to take advantage of the relative calm.

If a client has been sued, the issue of the timing of the lawsuit has been made for them, of course. If you have been sued, you should retain a lawyer as quickly as possible. Having said that, it will be critical for you and your lawyer to use the time you have carefully and deliberately. In Minnesota state court, a response to a lawsuit is generally required in 20 days. However, in most cases, a lawyer will be able to get an extension of time to respond if needed.

Unrealistic expectations about the duration of a lawsuit is another timing-related mistake that some civil litigants make. In our experience, the average civil litigation has a duration of roughly one-year. Some cases (very few) settle with a quick telephone call or, maybe, an early mediation. The vast majority do not. And, unfortunately, some cases can drag on for far longer than one year.

Money.

Many clients fail to appreciate how expensive our legal system is. Many do not understand that litigants do not normally recover the lawyers’ fees that they incur even if they win the case.

All litigants must ask their lawyers hard questions, must get some commitment as to fees and costs, even if it is, by necessity, an estimate or a very broad range.

Litigants must also understand that “legal damages,” that is, the money one can recover through a lawsuit, is NOT the same as “actual damages.” For example, many litigants feel they have been caused stress, anxiety, even to the point of requiring on-going medical treatment but, for a great many legal claims, there is no way to recover money to compensate for these harms.

Choosing A Lawyer.

First and foremost, it is obviously most important for litigants to hire competent lawyers — lawyers with sufficient experience, not just general legal experience but experience in the particular area of law involved in a litigant’s specific case.

But this is the tip of the iceberg.

Your lawyer will be your guide. Your lawyer will be your counselor. Your lawyer will be your team-mate. Does a prospective lawyer treat you with respect? Does a prospective lawyer listen to you? Does a prospective lawyer make you feel comfortable? Does a prospective lawyer communicate clearly to you? There are many talented and competent lawyers who are deeply flawed communicators, who are insensitive, and inattentive to clients. It is possible that such lawyers will reach similar outcomes in cases to more interpersonally skilled lawyers. On the other hand, it might be an extremely difficult and unpleasant process. A client must make sure at the outset, as best the can, that they get along with and trust their lawyer.

LEVENTHAL pllc handles a broad range of Minnesota civil litigation. LEVENTHAL pllc handles business disputes with lenders, vendors, customers, and suppliers. LEVENTHAL pllc handles employment-related disputes. And LEVENTHAL pllc handles torts (claims of professional negligence, negligence, personal injury, defamation, etc.). Finally, LEVENTHAL pllc handles claims for legal malpractice.

From our experience in this last area, we have learned how extraordinarily important the initial choice of lawyer will be to litigants’ experience of the legal system.

If you believe that you have been a victim of wrongdoing and need to bring a lawsuit, or if you have been sued, consider calling LEVENTHAL pllc, 612-234-7349, for a free 1/2 hour consultation. LEVENTHAL pllc takes cases based on hourly billing, contingent fee cases, and hybrid fee arrangements.

Property and boundary disputes between neighbors are a common source of litigation. Imagine, for example, that you have been parking your car in a spot for twenty years but, unfortunately, though you didn’t know it, the spot is on (or is partially on) your neighbor’s property. Now, your neighbor is demanding that you stop parking your car there or that you pay him to park your car there. Maybe he is threatening legal action if you continue to use his property without payment or permission.

You may have rights to use or possess the disputed property under Minnesota law despite the fact that it is technically owned by your neighbor.

Under Minnesota law (and the law of most other states), ownership of property can be established through “adverse possession.” In order to establish adverse possession, an individual must prove actual, open, hostile, continuous, and exclusive possession of the property for at least 15 years. These elements must be proved by clear and convincing evidence. This is a higher standard than the more common standard of proof in lawsuits, called “preponderance of the evidence” (but lower than the “beyond a reasonable doubt” standard of proof required in criminal prosecutions).

The intent to take the land is not required and adverse possession may be established where the property was used even by mistake, as long as the user intended to exclude all others. In this context, “hostile” does not mean animosity of physical acts against the owner. “Rather, hostility only requires that one enter and take possession of the lands as if they were his own, and with the intention of holding himself to the exclusion of all others.”

In addition to the above elements, certain types of adverse possession claims require that the individual claiming title by adverse possession has paid real estate taxes on the property at issue for at least five years. See Minn. Stat. § 541.02.

A similar, but legally distinct concept called a “prescriptive easement” may also be available. Claims for prescriptive easements are analyzed using the same elements as claims of adverse possession, with some small (but potentially legally significant) differences. However—unlike adverse possession where an individual gains an ownership interest in some or all of the land—the holder of a prescriptive easement only receives the right to use the land, not to possess it.

LEVENTHAL pllc is experienced in property disputes on behalf of both plaintiffs and defendants. For many legal disputes, you should hire a law firm when you only need one or two really good lawyers. You would be surprised what an experienced trial lawyer can do for you. When you work with LEVENTHAL pllc, you don’t pay for what you don’t need. But you get what you pay for. Call for a free consultation about your case: 612-234-7349.

Whether an individual is an “employee” or “independent contractor” can have important consequences under Minnesota law. Whether you are a business or individual, this legal status may affect your rights and obligations for workers’ compensation, unemployment, and state and federal taxes.

Courts analyze five factors when determining whether an individual is an employee or independent contractor: (1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge.

Just because you call an individual an “independent contractor” does not make it so. Courts will not necessarily accept a label placed upon the relationship by one or even by both parties.

This general test may not apply to certain individuals, businesses, or entire industries. For example, whether a construction worker is an employee or independent contractor is government by Minnesota Statute § 181.723. Section 181.723 provides nine factors that an individual must meet in order to be considered an independent contractor:

(1) maintains a separate business with the individual’s own office, equipment, materials, and other facilities;

(2)(i) holds or has applied for a federal employer identification number or (ii) has filed business or self-employment income tax returns with the federal Internal Revenue Service if the individual has performed services in the previous year;

(3) is operating under contract to perform the specific services for the person for specific amounts of money and under which the individual controls the means of performing the services;

(4) is incurring the main expenses related to the services that the individual is performing for the person under the contract;

(5) is responsible for the satisfactory completion of the services that the individual has contracted to perform for the person and is liable for a failure to complete the services;

(6) receives compensation from the person for the services performed under the contract on a commission or per-job or competitive bid basis and not on any other basis;

(7) may realize a profit or suffer a loss under the contract to perform services for the person;

(8) has continuing or recurring business liabilities or obligations; and

(9) the success or failure of the individual’s business depends on the relationship of business receipts to expenditures.

These factors only apply to individuals performing public or private sector commercial or residential building construction or improvement services. All factors must be met in order to acquire independent contractor status.

The employment relationship between two Limited Liability Companies (“LLCs”) in the construction industries is analyzed differently: “the independent contractor vs. employee distinction is not applicable to LLCs in the construction industry . . . .” Accordingly, an LLC contracting with another LLC to perform construction services does not create an employer/employee relationship between those two entities, notwithstanding the § 181.723 factors.

This analysis is further complicated where the individual worker is also the owner of the LLC: “if an individual is an owner . . . of a business entity, the individual is an employee of the person for whom the individual is performing services . . . and is not an employee of the business entity in which the individual has an ownership interest.” Minn. Stat. § 181.723, subd. 4(b). In order for the owner of a business entity to be considered an employee of the entity he owns rather than the person or entity for which he performs services, (1) the business entity must meet the nine factor test of Minn. Stat. § 181.723, subd. 4(a); (2) invoices and payments must be in the name of the business entity; and (3) the business entity is registered with the secretary of state, if required. Minn. Stat. § 181.723, subd. 4(b).

The case law analyzing the employee relationship issue under Minn. Stat. § 181.723 also applies to claims for workers’ compensation. See Minn. Stat. § 176.041, subd. 1(12).

Questions? Call LEVENTHAL pllc for a free 30-minute consultation about your case: 612-234-7349. It is rare that we can completely resolve your questions in an initial call although sometimes that is all it takes. But when you work with LEVENTHAL pllc, you don’t pay for what you don’t need and you get what you pay for.

Individuals who believe they have been the victim of unlawful conduct at the hands of law enforcement officials have legal options. The most common claim brought against law enforcement under a federal law commonly referred to as “Section 1983.”

Passed just after the Civil War over 100 years ago, 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Section 1983 “serves as the basic vehicle for federal court review of alleged state and local violations of federal law [by law enforcement officials]. Some commentators have even gone so far as to announce that “[n]o . . . statute is more important in contemporary American law.” It also allows for a successful plaintiff to recover attorney fees.

Despite its importance, it can be very difficult to win a claim under Section 1983.

To win, an individual must first overcome what is called the law enforcement officers’ “qualified immunity.” The Supreme Court has developed a two-step analysis to determine whether an officer accused of violation of constitutional rights is subject to liability: (1) whether the plaintiff can demonstrate a constitutional violation, and (2) whether the constitutional right was “clearly established” at the time of the violation. The second factor is referred to as qualified immunity. A court may decide that the right at issue was not “clearly established” at the time and, based on that, might dismiss the case without further consideration.

Generally, for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”

This slightly more detailed explanation is barely more helpful than the formulation of the rule itself. However, in Wilson v. Layne the Supreme Court shed some light on how a right may be considered clearly established:

absent any pertinent Supreme Court or controlling circuit court decision or a consensus of persuasive authority from other circuits, the Court concluded that the law was not clearly established such that reasonable officers would have understood that, under these circumstances, [the conduct at issue] violated the Fourth Amendment.

Claims of excessive force are often considered to be claims under the Fourth Amendment’s prohibition of unreasonable searches and seizures. The Supreme Court held that “whether a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interest at stake.” Thus, the Court has formulated a “totality of the circumstances” inquiry where factors to be considered include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether she is actively resisting arrest.

With this brief but complicated explanation, you can see the difficulties faced by potential civil rights plaintiffs. Furthermore, these are often cases of conflicting eyewitness accounts and, sometimes, very few, if any, corroborating witnesses. Despite the high standard for plaintiffs, successful claims for violation of constitutional rights are possible under Section 1983—whether by jury verdict or settlement.

LEVENTHAL pllc handles a broad range of Minnesota civil litigation, including Section 1983 claims.

LEVENTHAL pllc handles business disputes with lenders, vendors, customers, and suppliers. LEVENTHAL pllc handles employment-related disputes. And LEVENTHAL pllc handles torts (claims of professional negligence, negligence, personal injury, defamation, etc.). Finally, LEVENTHAL pllc handles claims for legal malpractice.

From our experience in this last area, we have learned how extraordinarily important the initial choice of lawyer will be to litigants’ experience of the legal system.

If you believe that you have been a victim of wrongdoing and need to bring a lawsuit, or if you have been sued, consider calling LEVENTHAL pllc, 612-234-7349, for a free 1/2 hour consultation. LEVENTHAL pllc takes cases based on hourly billing, contingent fee cases, and hybrid fee arrangements.

Winning a lawsuit seems like a good thing. And it usually is. However, there is some bad news, what you have really “won” is an official government pronouncement that you are entitled to a certain amount of money (assuming your lawsuit was for money damages) from the losing side. That is, you get a judgment.

Now that you have won a “money judgment,” you have to try to actually collect the money and it is, unfortunately for you, common for the losing party to be less than eager to open its checkbook. The process of collecting a judgment is difficult for litigants (and a good many lawyers as well) to navigate. The good news is that judgments are valid for ten years and can be renewed for another ten years.

In general, in the case of a civil court judgment, the process starts by the winning party (now called a Judgment Creditor) filing an affidavit of identification of judgment debtor (aka, the losing party) with the court that issued the judgment. This causes the court to “docket” or “transcribe” the judgment.

Once the judgment is transcribed, you can then begin “post judgment discovery” to find out what assets the judgment debtor has and where those assets are located. (more…)