• November 28, 2012

In the United States, traditional dance is a dying (nearly dead) past-time.  In fact, it is hard for me to get my mind around the fact that it was common some decades ago for a man to sidle up to a woman whom he did not know well or whom he had never even met, ask her to dance, then (assuming she said yes) take her in his arms and, hold her close, circle the room arm-in-arm, faces inches apart, directing the couple’s rhythmic movement to music.  (Did that every really happen? Yes, it really did.)

There had to have been a lot of stepping on one another’s toes, both literally and figuratively when strangers were in close contact, unaware of each other’s motives, moves, modes, and minds.  Maybe that’s why this form of social interaction died out.

But in all of our social/interpersonal interactions, not just dancing cheek to cheek, we must approach one another with care.  We want and need to get close enough to connect, to relate, to communicate, ultimately, perhaps, to persuade, but not so close as to cross the line or to alienate.  We all have invisible boundaries, our accessible gates, and our pad-locked doors.  Even judges.

It is generally impossible for trial lawyers or their clients to know to what degree, if any, it affects a case’s outcome if a judge simply does not like a lawyer.  That said, it must be extremely rare that a client is in any way well-served if a lawyer steps repeatedly on a judge’s toes.

No one will ever know with any degree of certainty whether Money Centers of America (“MCA”) in its litigation would ultimately fare better against the Corporate Commission of the Mille Lacs Band of Ojibwe Indians if it had not made certain missteps with Sr. U.S. District Court Judge Richard H. Kyle (D. Minn.) but MCA’s out-of-state lawyers do seem to be out of step.

First, as Minnesota Litigator noted last summer, MCA counsel was given an explicit “shot across the bow” about respecting the decorum and tone of cotillions in Minnesota dance halls Minnesota civil litigation.

More recently, Judge Kyle had this to say about MCA legal arguments in support of its motion to dismiss, “MCA moves to dismiss this claim on grounds that are, in the Court’s opinion, unintelligible,” and “MCA also includes, unmoored from any of its arguments, a long string of citations to cases from this Court and this district…None of these is sufficiently similar to the instant case to be persuasive…”

There can be no doubt that it benefits litigants to retain lawyers who know local rules, of course, but, more than that, ideally, litigants are best served by lawyers who have a sense of the bench, a sense of what conduct is commended and what conduct is condemned.  This can be overstated.  Cases are almost always entirely decided on the merits and not on the metaphorical dance-moves.

On the other hand, litigation is ultimately about persuasion,which is immensely subtle and complex.  The value of trial lawyers’ awareness of conventions, of expectations, of preferences, and of styles cannot be measured but maybe it is immeasurable?

Seth Leventhal is a Minnesota civil litigator who generally avoids faux pas in his business litigation practice though he freely admits to being less graceful than a fainting goat on the dance floor.

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