• January 31, 2012

In civil litigation, well over 90% of cases settle so lawyers’ writing jury instructions is an infrequent and exceptional part of almost every civil litigator’s work-life.

(Non-litigators and lay people may be surprised to hear that trial lawyers, rather than the court or the judge write the jury instructions.  In fact, the writing of jury instructions is a collaborative exercise between all of the lawyers on all sides, the judge, the judge’s clerk, etc., an exercise that is more often than not on-going throughout trial.  (See: Trial = Whac-A-Mole x 10(∞).))

A subtle and nuanced aspect of trial strategy is that one can sometimes get away with convincing a trial court judge to use jury instructions that are so favorable to one’s side, so one-sided, that the instructions will not survive on appeal.  If that happens, there is a risk (impossible, unfortunately, to quantify with any reasonable precision) that the trial victory will have been for naught.  

Brandon Melz started working for his uncle, Terry Heitland (Viking Produce Inc.), in 1988.  Reenacting commercial avunculicide (think Hamlet/Lake Woebegone mash-up?), Melz eventually formed Northstar Produce to directly compete with Viking and allegedly started competing while still taking a Viking paycheck.

Competition, most of us recognize, is sometimes rough-and-tumble, which is an innocuous way of saying that it is cruel and ugly.  But, nevertheless we embrace it and we do not condemn it.   It is the critical core of our market system.

On the other hand, there are limits and the law deems some actions to be more in the nature of betrayal (for which one must pay compensation) than healthy competition (where the victor is deemed to deserve the spoils).

Counsel for the Northstar Produce nephew succeeded in getting the trial court judge to adopt jury instructions that made the nephew’s alleged machinations to appropriate his uncle’s business while still working for his uncle’s business seem legal.  The favorable jury instructions, over the plaintiff’s counsel’s objection, probably felt like a coup at the time for defense counsel.

But they were too good to be true.  This past week, the nephew’s trial court win was stripped from him on appeal.  The Minnesota Court of Appeals held that the jury instructions given by the trial court to the jury were erroneous and prejudicial to the plaintiff/uncle.  Specifically, the instructions invoked the “competitor’s privilege exception” (one is not “interfering” with an employment contract by offering a competitor’s employee a job) but that privilege does not apply when one is working for a company and simultaneously plotting one’s competition against the same company.

So the case is remanded to the trial court for more inter-familial blood-letting.

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