Update #3 (March 28, 2012): The BNSF railroad defended this terrible crossing accident case (described below) by arguing that the railroad met applicable standards of care under Minnesota law and then, after the case was tried before a jury, tried to prevail on a federal preemption theory — that is, arguing to the court that the railroad met applicable federal regulations so Minnesota’s standard of care would be beside the point.
No go, the Minnesota Supreme Court ruled today. Lawyers are very familiar with arguing alternative grounds, whether on behalf of plaintiffs or defendants. But judicial economy and fairness both favor rules requiring the arguments be voiced on the front-end rather than the back-end.
Update #2 (April 6, 2011): This tragic crossing accident case involving fatalities, a jury verdict, and severe sanctions for misconduct during the litigation, is set for argument before the Minnesota Supreme Court in St. Paul, April 7 at 9 a.m. Previous coverage after the break.
Update (September 14, 2010): The Minnesota Court of Appeals (Kalitowski, Minge, Collins, Judges, in an opinion by Collins (retired district court judge sitting by appointment)) affirmed in part and reversed part jury verdict reached at trial before the Anoka County District Court (Judge Ellen Maas). Minneapolis Star Tribune coverage of the Court of Appeals decision is here. The opinion itself is here.
This morning’s Star Tribune front-page top-half cover story covers alleged trial misconduct of BNSF railroad in a crossing accident case in which Judge Ellen Maas, Anoka County imposed multi-million dollar sanctions against the railroad. (The article does not make clear whether any sanctions were imposed on outside counsel, apparently Tim Thornton from Briggs & Morgan.) (MinnLawyer Blog (Michelle Lore) reports: “At trial, BNSF was represented by St. Paul attorney Julius Gernes. By the time of the sanctions hearing, the defendant had apparently secured new counsel and, according to the judge’s order, was represented by Timothy R. Thornton, Diane Gerth, Sam Hanson and Patrick J. Sweeney.”)
Among a series of alleged misconduct (spoliation of evidence playing a main role) is the allegation that the railroad paid lay witnesses for testimony. (Critically, the article fails to give any information as to how much they were paid and we have to assume that they were not paid to testify falsely, which would, of course, be a crime.) While payment of expert witnesses for their time and expertise to offer opinions in trials is common-place (and clearly ethical), is it ethical to pay a lay witness for testimony?
That is something that BNSF and its lawyers will want to have researched a lot more than I have, but a quick inquiry suggests they might be okay from an ethical perspective (not to “pay for testimony,” per se, but to pay for time, expenses, lost wages in connection with having to give testimony). Here is a Kentucky Ethics Opinion (citing to an ABA opinion and other state opinions) (and see here too (surveying states’ rules and identifying Pennsylvania as perhaps the most strict jurisdiction in such cases)).