A Cautionary Tale for Trial Lawyers About Appeals

Photo by Jonathan Rotondo-McCord

I recently had the rare pleasure of spending some time with a close very old friend who happens to be a psychotherapist.  Our professional lives differ in so many ways.  One of the many is that in his private practice, the weeks, months, and years are relatively unchanging.  In 50-minute sessions, clients come in, do the hard work of assisted introspection, and, eventually, most leave edified and deeply grateful after weeks, months, or years of work.  The psychotherapist does not find himself, as I do, working in Detroit two weeks ago, Duluth, last week, at a court hearing in town later this week, and in trial perhaps once a year (if that).

Of course, each work situation holds its own allure and its own repelling characteristics.  The variety of a civil litigator’s work, the range of practice, is a blessing and a curse. The infrequency and the unpredictability of events can make awareness of applicable rules a tremendous challenge; this, in turn, presents serious risks.

Navistar makes trucks and North Star sold them in Minnesota. The two companies have been fighting for more than a decade.

Their brouhaha went to trial before Hennepin County District Court Judge Susan N. Burke.  Navistar won the combination bench trial/jury trial.  Navistar then sought an award of its costs, which included over $200,000 in claimed expert witness fees.  The court denied the full measure of this request, awarding Navistar a fraction of its costs.  Navistar sought reconsideration of that decision.  Over the next few months, the district court reconsidered its decision, reversed course, vacated the prior award, and awarded Navistar more money.

The only problem for Navistar was that it failed to appeal the initial judgment awarding costs and North Star counsel correctly argued that the district court had no jurisdiction to make the second award because the first award became “final” with the passage of the 60-day period of appeal.

Just so you’re clear here: Navistar wins at trial, the trial court fails to award Navistar’s full measure of costs to which Navistar is entitled under Minnesota rules as a victor at trial, Navistar bring this to the attention of the trial court, the trial court agrees and changes its mind, the other side then says that it is too late for the trial court to change its mind, the trial court agrees, and so does the Minnesota Court of Appeals.

Appellate rules are often unforgiving.  Feelings of “fairness,” “justice,” “sympathy,” do not guide construction of the rules.  Only the literal, sometimes opaque, confusing, or complicated wordings of the rules matter.  Proceed with vigilance.