• December 11, 2018

Update (December 11, 2018): Speaking of the disappointment of winning one’s “costs” after a win in course, in a wholly separate case from the one described in yesterday’s post (below), Allnurses, the victororious defendant (at least pending appeal) sought “costs” of about $135,000 and was awarded only $1,092.45. Here’s why: [click link].

And how much do y’all think the lawyers billed for their application for costs that resulted in an award of $1,092.45?


(I expect they’re underwater. Can there be any doubt that Allnurses paid more for the application for award of its costs than it recovered in the application?)

Original post (December 10, 2018): Mr. Todd Frostad was involved in a weather-related business venture with other people. The venture appears not to have been very successful. The other people went on to do other weather-related ventures, not including Mr. Frostad, and Mr. Frostad thought he was entitled to some portion of the value of these later endeavors.

He sued.

The case went to trial before Hennepin County District Court Judge Laurie J. Miller and it went badly for Mr. Frostad. Five claims went to trial. Mr. Frostad lost on all five.

Congratulations to defense counsel, Mr. Steven Prince.

But, as all trial lawyers know, cases do not end when trials end (even ignoring the possibility of appeal). Trial is often followed by the winning side seeking an award of its “costs.” It is worthwhile for Minnesota litigators to review Mr. Frostad’s objections to Defendants’ application for costs because (again, as all trial lawyers know), what constitutes “costs” is far from self-evident.

One thing “costs” does NOT mean is what lay people think it means. For example, most think (reasonably in our view) that attorneys’ fees are part of the “costs” of going to trial. They are generally not included in recoverable “costs.”

Further, all kinds of other “costs” are normally unavailable, such as “e-discovery” costs. These costs can be very high. (In fact, $40,000 for the e-discovery costs in this case (see here at p. 4) seem relatively modest.)

So, winners at trial can recover their so-called “costs,” which are not even remotely close to their actual costs.

[Ed. Note: Full disclosure: LEVENTHAL pllc represented a third-party entity who Mr. Frostad unsuccessfully sought to add to the lawsuit. We do not think this fleeting involvement has any relevance to any aspect of this post or is cause for any bias with regard to the subject matter of the post.]

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