• September 5, 2017

Minnesota Litigator has received reader feedback that Minnesota Litigator predictions are particularly fun reading.

This is likely because lawyers are generally, typically, and frustratingly circumspect and equivocal. Socially and informally, their answers to legal questions often seem to be “good question!,” “maybe so…,” “it depends,” “hard to say,” “I’d need to know more to have an opinion,” etc. So we suppose readers enjoy that we sometimes make unequivocal (if, sometimes incorrect) predictions.

And, in all modesty, we have done staggerlingly well in the prediction department with far more successful predictions than unsuccessful ones.

But there is one area where we give ourselves a failing grade: predicting “the next big wave” of civil litigation.

We predicted new waves of “failed energy projects” in 2012, “false health claims (or similar claims) for packaged foods” in 2012, and “elder law/trust and estate litigation” in 2014.

Still waiting for these big waves…Hang ten. Kowabunga.

We did not predict the big wave of “he sad/she sad” cases that have hit hard in Minnesota courts in recent years.

We refer to cases that are toxic cocktails of alcohol, college students, educational institutions, discipline (or lack of it), and alleged sexual misconduct, typically between a male alleged perpetrator and female alleged victim (see here, here, here, here, and here).

This should come as no surprise. These he sad/she sad cases — unlike, say sub-prime meltdown related cases, hurricane-related cases, or so-called “toxic torts,” do not arise from a single cataclysm. They do not arise from any new law. They do not arise from any new human activity.

They arise (to some, gradually, to others, abruptly) from a cultural shift, a zeitgeist, a redefinition of wrong-doing and responsibility.

If we could predict those, we would have inked a deal with Catherine Hettinger in 2005 and would be writing this post from our private island. (Ms. Hettinger invented the finger spinner but did not have the $400 to renew the patent in 2005.)



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