• January 17, 2013

Update (January 17, 2013):

This matter was preceded by nine years of litigation among the parties relating to the organization, leadership and oversight of Asian Woman United of Minnesota (AWUM). …The case centers on allegations of Sinuon and Lawrence Leiendecker (the Leiendeckers), wife and husband, who were respectively the executive director and a pro bono lawyer for AWUM beginning in 2003, that the Defendants pursued objectively baseless litigation against them including unfounded claims of theft and legal malpractice.

That’s a quote from an October 2012 opinion by Ramsey County County District Court Judge John B. Van De North, Jr. denying defendants’ motions to dismiss the Leiendeckers’ complaint against them for malicious prosecution and related claims.  If the allegations are accurate, again, like the Nielsen v. Bohnen v. Nielsen intense, on-going, multi-front, and protracted firefight, discussed last week, this case raises the question of whether our legal system is being exploited by the powerful to inflict grief on the vulnerable rather than being available to the aggrieved to recover from the wrongful acts of others.

Is the shield of justice in Minnesota (and throughout the United States) being used by well-heeled and connected wrong-doers (posing as aggrieved parties) to bash the brains out of the real victims?  There is no question that Robert Hill, counsel for Bohnen, would say yes.  The Leiendeckers, and their lawyer, Tom Gunther of Virnig & Gunther, might concur.

It is a very tricky challenge for a court system to allow people to sue other people for having been sued.  Think about it.  We want to have a fair, open, affordable, and public forum for dispute resolution in our society; some seek to adjudicate their disputes, and we allow them to be sued for having gone to court to vindicate their rights?!  This might be the definition of cross-purposes (or embodied by the image of ouroboros).

We require surgical precision to excise the cancer of abusive civil litigation without harming the surrounding healthy tissue of the open justice system.

Aspects of these cases that make this surgico-legal procedure extraordinarily difficult: (1) The damage of abusive litigation starts at the abusive cases’ very inceptions (or even before, when serial litigants start with a carpet-bombing letter-writing campaign to provoke litigation or lay its groundwork).  Even a fairly prompt dismissal of a case does not remedy the harm of being sued, which, if one has to hire a lawyer, is always in the thousands of dollars and often in the tens of thousands of dollars; (2) the stress and anxiety of being antagonized by “civil litigation” (an oxymoron in this context), the damage to one’s reputation in the community, are the kinds of nebulous harms for which our legal system rarely affords compensation at all, much less full compensation; and (3) It can take a great deal of time and work (also money) to ferret out clear and convincing evidence that a lawsuit has been undertaken for purely improper, vindictive reasons and in bad faith — both for our courts, which are already over-loaded, and for the unfortunate victims of abusive lawsuits.

Analogize to someone who repeatedly contacts law enforcement with false reports of crimes, fires, etc. (let’s call such person a “False Crime Caller”).  The costs of making the calls is negligible.  The costs of response are significant (police called away from other work, fire-fighters etc).  The costs of prosecution are great.  And we have many other things to worry about.

The problem with “Serial Suers” or “Lawsuit Abusers” is much more difficult.  First, the False Crime Callers have, essentially, one victim, the government, and the one victim has ample resources to prosecute the wrong-doer.  “Serial Suers,” on the other hand, can pick on weaker prey and can pick on more of them.  Their victims often simply cannot strike back.

Second, it would normally be quite easy for the government to prove, “You called in a fire but there was no fire and you have done this five times.”  It can be very difficult, on the other hand, to prove that carefully crafted legal complaints by clever lawyers, after full scrutiny, not only have no merit but, at their essence, were, from the start, not even “aimed…in part at procuring favorable government action.”  That is, it is very difficult to prove that a lawsuit is 100% in bad faith, filed with no reasonable hope of success.

This is the significant challenge that Tom Gunther, representing Lawrence Leiendecker, and Robert Hill, representing Steven Bohnen face.  Without a full appreciation or understanding of these cases, we should reserve judgment, of course.  But we can all agree that the exploitation of our justice system as a weapon for inflicting financial and reputational harm is a terribly destructive social phenomenon that our court system would be wise to eradicate whenever — or if ever — possible.

Original Post (October 22, 2010):  Employer believes its executive is stealing and fires her.  Later, employer sues executive for the misappropriated funds.  She answers, denying the charges, and making a demand that the Employer advance the fees she is obliged to pay her lawyer for her defense, pursuant to Minnesota corporate statutes in defending the action (see, e.g., Minn. Stat. § § 302A.521, 317A.521 (for Minnesota Business Corporation Act and Minnesota Nonprofit Corporation Act)).

No problem!  This week the Minnesota Court of Appeals (Peterson, Hudson, Larkin), on an interlocutory appeal, reversed Ramsey County District Court Judge Gregg E. Johnson, who, the Court of Appeals held, failed to undertake the arguably counter-intuitive step of undertaking its own independent inquiry under Minn. Stat. § 317A.521, subds. 3(2) and 6(a)(5) as to whether Defendant Leiendecker met the statutory requirements before nixing the request for advancement in this longstanding litigation.  (The parties have been litigating since 2004.)

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