• August 13, 2018

emergency-309727_1280Update (August 13, 2018): We introduced the neologism, “GOOTCH,” about three years ago (see below).

Chief Judge John R. Tunheim (D. Minn.) issued what, in our view, was a pretty strong GOOTCH Order last week on behalf of a LEVENTHAL pllc client.

Judge Tunheim dropped a few references to Rule 11 (in footnotes 1 and 4) — sure signs that a court’s displeased.

We’ve said it once and we’ll say it again:

Weighing the harm of the [anonymous on-line criticism], on one side, and the cost of a remedy (litigation) plus the prognosis for success (i.e., the likelihood of “winning” the litigation, whatever that might mean), on the other hand, is a tricky calculation. In light of the uncertainty and expense of civil litigation, in our view, the harm of the hate must be pretty serious to justify suing over it.

East Coast Test Prep LLC d/b/a Achieve Test Prep and Mark Olynyk, plaintiffs in the case that occasions this post, seem to have miscalculated badly.

Update (July 22, 2015): A GOMER is medical slang for “a patient in an emergency room who is not in need of emergency services.” GOMER stands for “Get out of my emergency room.” The legal analog is A GOOTCH (“Get out of this courthouse”).

Following up on my recent reflection on footnotes, here’s a nice one from a recent order in the longstanding blood-feud of Bohnen v. Nielsen, a case that I have been following for some time as you will note below:

This Court, along with the Washington County district court judges in the underlying lawsuits and Minnesota Court of Appeals, has recited the factual and procedural history of the interaction between these parties numerous times. The conduct of both these parties is worthy of self-reflection. While the Court is reluctantly permitting a portion of this matter to proceed, it believes this matter should have ended long ago.

(Footnote 1, page 3). If there is ever a judicial signal of GOOTCH status,  I do not think it could not be clearer than that.

Actually, I think trial court judges send such signals a lot more frequently than lay people might believe. In the view of many trial court judges, the vast majority of lawsuits do not belong in court. They are in court because one side or the other side, one lawyer/law firm or another lawyer/law firm is being unreasonable or irrational, the thinking goes (or, in some cases, presumably, the judges think everyone is nuts).

Maybe so.

But I am reminded of the aphorism about the enigma of marketing (“Half of our ad budget is a complete waste of money. We just cannot figure out which half….”)

Should Bohnen v. Nielsen, et al,have ended long ago? How? in whose favor? Who is to blame for this almost endless tempest in a teapot? No one? Everyone?

I note that Defendant Nielsen’s law firms that were sued got out of the case on summary judgment. This could pose a pickle for Plaintiff Bohnen at trial because his case is premised on “malicious prosecution” and, in all likelihood, Defendant Nielsen will defend against Bohnen’s claim by arguing that his lawyers advised him that he had a valid case. (They, after all, faced risk, as all lawyers do, for bringing a lawsuit deemed to have been “frivolous.”) (This defense, in turn, would appear to put the legal advice “in issue” and would trigger waiver of the attorney-client privilege, no?)

Stay tuned.

Whether or not Bohnen v. Nielsen is a GOOTCH, it does not appear that the parties are particularly motivated to accept the court’s invitation to go away…

Update (January 12, 2013) (under the headline: “Risk of Blowback from Scorched Earth Tactics”): Maybe Defendant Jeff Nielsen’s brief in support of his motion to dismiss in Bohnen v. Dorsey & Whitney, LLP, et al., could be summarized as “been there, done that” or “enough is enough”?  He does not defend the litigation tactics that plaintiff has challenged so much as he argues that he should not have to defend them because he has already.  Repeatedly.  And Dorsey’s brief strikes similar notes along with “much ado about nothing.”

Maybe so?  But, if I understand this correctly, a man was caught stealing campaign yard signs in October 2010 and heaped verbal abuse on the witness who caught him and HIS lawsuit against the candidate (and now Grant City Councilman) — HIS CLAIMS (the one convicted by a jury for disorderly conduct due to his verbal attack on the witness) — are STILL PENDING in Washington County District Court?  Something seems wrong with this, no?

Original post (January 9, 2013):  Originally, “blowback” was CIA internal coinage denoting the unintended, harmful consequences—to friendly populations and military forces—when a given weapon is carelessly used.

A Washington County jury found real estate developer, Jeffrey L. Nielsen, guilty of a charge of disorderly conduct arising out of allegations that he took down two campaign lawn signs for aspiring city councilman, Steve Bohnen, (Grant City Council) in early October, 2010 (Grant, Minnesota, population 4,096 in the 2010 Census).  (Bohnen won anyhow.)  Of course, this is normally not the kind of thing anyone would make a federal case out of, much less a federal case brought by the alleged sign thief.  Seriously.  This dispute was (and two years later continues to be) far from normal.

Steve Bohnen, represented by Stillwater, Minnesota lawyer, Robert Hill, is bringing a lawsuit for malicious prosecution and abuse of process against the law firms of Dorsey & Whitney, L.L.P., Foley & Mansfield, and lawyers from these firms, George Eck and Thomas Pahl, in connection with their representation of Mr. Nielsen in what appears to have been a series of aggressive and unsuccessful legal actions brought on Nielsen’s behalf against Bohnen and others.

What happened to the role of lawyer as wise counselor?  If we assume that the allegations in Stephen Bohnen’s complaint are true (and they appear to be supported by court hearing transcripts and published decisions), was there sage advice in Nielsen’s corner?  Six-figure sanctions have already been awarded.

Defendants have brought a motion to dismiss now scheduled to be argued before Hennepin County District Court Judge Thomas Sipkins, February 7 at 1:15 p.m.

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