• March 23, 2015

Minnesota Litigator’s secret recipe of success is its ambitious attempt to provide readers with five “fresh” posts per week, 50 weeks a year (more or less).

So when my readers, who tend to be Minnesota litigators, those who love them, those who sit in judgment of them, and those ensnared with them in what can seem like a toxic, viscous, and revolting network of webs, nettles, thickets, ooze, and dense fog (civil litigation) are at work, they can all rely on a few minutes of distraction, a few minutes of local legal news, feeble attempts at humor, and, from time to time, I like to think I stumble upon some hard-to-otherwise-find insights.

This “publishing pressure” has given me new-found deep appreciation and sympathy for journalists. Do we really have to have “news” every day? You have any idea or the ratio of news to days? And if you limit yourself to “news and commentary about Minnesota civil litigation”? Stuff happening five days/week, 50 weeks a year?

Yeah. No. I am tapped out.

But fear not, faithful readers. I have the great privilege to have excellent guest posters. Most recently, as many of you know, Karen Cole has generously shared her deep and important knowledge about important changes in Minnesota Court Rules (most recently here and here).

Also, as evidenced by this post, there’s always something to say. It’s must a matter of finding the time to compose one’s thoughts. Today, a post in which I have something to say about why I have nothing to say:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

ABA Model Rule 8.2(a).

To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

ABA Model Rule 8.2, Comment [3].

Note how the rule prohibits “trash talking,” but the comment to the rule shifts to “encouraging” an affirmative obligation of lawyers to step up in defense of judges and courts.

Note how the rule prohibits “false” or “reckless” statements but the comment to the rule seems to cast a wider net, asking lawyers to defend judges and courts that are “unjustly criticized.”

What the rules do not prohibit are candid unvarnished low opinions that lawyers have of judges based on actual experiences in which judges have shown themselves to be obtuse, abusive, fickle, indecisive, or lazy. A rule prohibiting that kind of speech would, of course, run afoul of the First Amendment of the U.S. Constitution’s protection of free speech. Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995).

Nevertheless, there are extremely few lawyers who speak openly and critically about judges in the United States system or in Minnesota, in particular. In this way, the legal system is a lot like large corporate life or life in certain political regimes in which some of the most important information you might need may be harder to lay your hands on than samizdat. This is for obvious and good reasons.

Committed. Ethical. Experienced. Successful. Call 612-234-7349 to speak to a real live Minnesota litigator for a free brief confidential consultation if you think you might find yourself before a Minnesota state or federal judge. Some of what you need to hear is not on the internet or written anywhere else.

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