Update (August 6, 2012): Across the United States and in countless subdivisions of region and culture — as throughout the world — there are slight variations in social norms and conventions. In Minnesota generally and in Minnesota litigation, specifically, (from the perspective of the author, a transplant from the Northeast) there is very low tolerance, generally, for open expression of outrage or anger. And expressions of sarcasm, vitriol, ridicule, or statements that attack a person’s (or even a lawyer’s) character, are not well received.
It is not uncommon for there to be skirmishes between litigators early on in litigation. The lawyers may not be as “up to speed” on a case early on as they would like to be. This, in turn, can lead to fear of blind spots, feelings of vulnerability, and paranoia. The lawyers may wish to signal to their clients, early on, that they are Tough Mudder litigators. Early in litigation, lawyers feel one another out, they test whether or not they can push the other side around. They may have no rapport with opposing counsel or any basis for trust.
Lawyers unfamiliar with practice in the U.S. District Court, District of Minnesota: BE FOREWARNED: the U.S. District Court for the District of Minnesota strongly dislikes lawyers’ use of language or rhetoric that ridicules, insults, or casts aspersions on the character of opposing counsel.
Mille Lacs Band of Ojibwe Indians v. Money Center is a lawsuit in which the plaintiff tribe takes the position that it lent money to defendant, who failed to pay it back “to the tune of more than five million dollars,” to quote the succinct and signature writing style of Sr. U.S. Judge Richard H. Kyle (D. Minn.).
In Mille Lacs Band of Ojibwe Indians v. Money Center, plaintiff has recently been pushing for discovery and defendant has resisted discovery pending its motion to dismiss (a very common scenario, as litigators know). In this context, defense counsel felt manipulated and tricked into a discovery meeting (a so-called Rule 26(f) Conference), the occurrence of which he felt that he had expressly ruled out with opposing counsel.
This provoked a heated exchange between out-of-state counsel and Faegre Baker Daniels‘ lawyers and this, in turn, provoked an explicit “shot across the bow” from Judge Kyle. It is an inauspicious start for the out-of-town defendant and its out-of-town counsel.
Original Post (July 16, 2010): (Originally under the headline, “[I]nflammatory language…beyond the bounds of zealous advocacy and…utterly intolerable”): Google “Minnesota Nice” and you’ll get over 75,000 “hits” (and an apparently worthy cause right at the top, incidentally). Whether owing to this regional pride in restraint and civility or other factors specific to the Minnesota bar, practitioners of civil litigation in Minnesota are well advised to proceed with caution when expressing of contempt, disgust, anger, or outrage in regard to opposing positions or opposing counsel.
You might even want to be careful inserting what you think might be a humorous quip in a brief if it is at the expense of an opposing party or counsel. It could be that not everyone shares your sense of humor.
In Rockwood Retaining Walls, Inc. et al. v. Patterson Thuente Skaar & Christenson (“PTS&C”), an attorney malpractice lawsuit has grown out of a nasty, extremely prolonged, and disastrous (that is, for Rockwood) intellectual property litigation in which Rockwood had been represented by the defendant/firm. The case is in U.S. District Court, D. Minn. , and before U.S. District Court Judge Donovan Frank.
Rockwood, the sequel, is off to an inauspicious start. Motions for summary judgment and the battle over the “affidavit of expert identification” have been brought and rejected; the defendant/firm was unable to get the case kicked out. On top of it, counsel for PTS&C has been warned that its mean-spirited ridicule of Rockwood’s proposed expert on legal malpractice crossed the line (see footnote 3, here). The law firm’s defense counsel suggested that Rockwood’s proposed expert is practicing “a new form of legal voodoo that permits him simply to massage the arguments in a lawsuit and declare with confidence the winners and losers,” and PTS&C’s counsel continued, “It is easier to envision him on a street corner in Minneapolis with a sandwich board.” Judge Frank, quoting the language, continued:
Such inflammatory language goes beyond the bounds of zealous advocacy and is utterly intolerable before this Court. Any similar behavior will be subject to sanction in the future.