• October 23, 2012

Follow-Up (October 22, 2012):  Minnesota Litigator has recently focused on the high-profile  case of Michael Brodkorb, and, in particular, a series of reversals in which Brodkorb appeared to agree to dismiss certain of his legal claims, then appeared to re-neg on his agreement to dismiss the claims, then appeared to re-adhere to the agreement after the other side sought the Court’s intervention to keep Brodkorb to the orginal agreement.  

But when a party accidentally agrees to a settlement, whether in whole or in part of his claim, (let’s say, for example, that there is a miscommunication as to acceptable terms between attorney and client), how difficult should it be to “undo” the “improvident” settlement?

It should be easy to undo.   Particularly if a party (or its lawyer) acts quickly.  After all, our justice system is not a child’s game of “gotcha last.”  That is, it not an inconsequential competition that might as well have an arbitrary resolution.  So cases should be tried (or resolved) based on the merits, and not as a result of accident.

Consequently, it should be no surprise that, “It has been the law in Minnesota for more than 100 years that a unilateral mistake in making a contract is a valid basis for rescission if the mistaken party acts promptly and the contract can be rescinded without prejudice to the other party; that is, if both parties can be placed in statu quo. This is on the ground that parties did not have the same subject-matter in mind in making the contract, and did not in fact come to an agreement in respect to the same thing.”

Assuming that a settlement agreement is reached due to one party’s unilateral mistake and assuming that mistake is quickly realized to the adverse party is not damaged by reliance on the supposed settlement agreement, there would be no prejudice between the formation of the alleged agreement and the abrogation thereof.  Under such circumstances, a unilateral mistake, absent prejudice to the adverse party, equals a valid basis to rescind the agreement, assuming one was reached.

Update (Sept 6, 3:00 p.m.): On third thought…

Original Post (Sept. 6, 6:00 a.m.):  Minnesota Litigator recently commented on the “time horizon” of civil litigation, which can simultaneously be glacial and lightning speed (say, a year or more of civil discovery with intermittent instants of on-one’s-feet courtroom colloquy and concessions).

This temporal rip-tide in civil litigation is as old as time itself but the light-speed of electronic communication adds a new dimension and pit-fall in civil litigation.

This might be the cause of the latest dust-up in the Michael Brodkorb v. State of Minnesota mess (previously covered here), in which Brodkorb’s counsel appears to have unambiguously agreed to dismiss certain claims that Brodkorb brought and, the next day, decided they wish to take it back.

The simple take-away for civil litigators: take your time.

(Speaking of light speed, an aside: we are now able to slow digital photography to one trillion frames per second so we can actually watch a pulse of light shot through space.  This does not relate to Minnesota litigation but it is insanely cool.)

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