• May 28, 2015

Fraser_ThomasHennepin County District Court Judge Thomas S. Fraser is one of the best-known civil litigators (and now trial court judge) in Minnesota due to his 30-years of practice, his 25 years as a neutral, and his large role in the management of Fredrikson & Byron.

Minnesota Litigator was delighted and honored to have the chance to interview Judge Fraser last week.

Minnesota Litigator (“ML“): What’s your day been like?

Hennepin County Judge Thomas Fraser (“TF“): I had several lawyers in court this morning on a Torrens matter and I kept the lawyers around for two hours. There were alleged forged deeds and the question is who bears responsibility for the forged deeds. And it’s a case of first impression and it was interesting.

ML: Were the lawyers knowledgeable?

TF: All very knowledgeable real estate experts and they all said this is a case of first impression and they cannot agree on who bears responsibility.

ML: Did you make progress?

TF: We set up a status conference about where we needed to go on this. But it reminded me of the variety of cases that a trial judge sees. I had a verdict in a railroad injury case on Monday – all federal law. Then a case involving Medicare. Subrogation rights in no-fault cases. The variety is one of the attractions of the job but it doesn’t make it easier.

ML: Any parts of the job that you don’t like?

TF: The hardest thing to adjust to is the rigidity of the court schedule. With court calendars you lose some of that control that you have in private practice.  You don’t have the same flexibility. You have to be there 8-4:30 or 5:00 every day and you have daily motions, and sometimes a court calendar of 50 cases. You have to plan well in advance to adjust schedules.

ML: You are the child of the mayor of Minneapolis and an extremely distinguished and high-achieving mother, as well. I would think that your personal history is quite unique.

TF: Actually there are many lawyers in town who are the children of politicians. I can name half a dozen right off the top, starting with Ted Mondale, Mike Freeman, Marianne Short, Brian Short, the other Shorts, Latz, Simon…so…

ML: Do you think that your upbringing has shaped how you view the court system?

TF: Well, one thing it does is that it predisposes you to public service. You saw what your parents did, how interesting they found it. You can argue whether the influence is environmental or genetic…

ML: Did you ever think of doing anything else than you have done, becoming a lawyer?

TF: Not really. Not seriously. I always assumed I would be a lawyer because my father was a lawyer and my grandfather had been Dean of the U of Minnesota law school for decades. I never gave it too much thought.

ML: After a particularly hard day at work, have you ever thought, “Oh, I wish I were doing [blank]” or “if I could do it over again, I’d like to try doing this…”?

TF: Well, the one thing a law degree gives you is a lot of flexibility. It can serve as a launching pad for going into business, the non-profit sector, the public sector and private practice. Any one choice is not a life sentence. You can change at any time within certain economic constraints. I have enjoyed the variety of what I have done.

I thought of private practice as a temporary thing and it turned into three decades, in part because I did a lot of other things. Like pro work,raising money, and chairing legal aid organizations and other nonprofits that do legal-aid-type work, such as Children’s Law Center, Call for Justice, Volunteer Lawyers Network, and Fund for Legal Aid.

ML: So you are truly a lawyer to the bone. If it were like the movie Groundhog Day where you could reinvent your life every morning, you’d choose to be a lawyer, time and time again?

TF: Being a lawyer allows you to continually engage at least part time in these other activities. You can engage in pro bono activities and so on. That is what I did and that is why I think I lasted as long as I did in private practice. Part of the reason I went into private practice was so that I would always be able to hang out my own shingle and practice on my own if things went wrong. That was advice I got from my father. It’s good to have that option in your back pocket no matter what else you do.

ML: So what do you do for fun?

TF: Sports. Exercise. Raising two teen-agers. Bridge. Reading, and travel.

ML: Shifting gears back to our legal focus, I’d like your reaction to something that I have been thinking about lately. I recently heard your colleague, Hennepin County Judge Bruce Manning, speak about his dislike of the type font, Times New Roman. Frankly, I thought that was irrational and strange. But, I confess, I changed the font I use in briefs and I think he really has a point. I think my briefs are easier on the eye and more pleasant to read in a different font.

But my question to you is whether you really think things like the font choice, formatting choice, or whether or not there are typos makes any difference at all in what we do? Do you think that lawyers over-exaggerate the importance of these kinds of details?

TF: My decisions are not influenced by the quality of the proof-reading in briefs. I have been practicing for over thirty years and I have been a neutral for a quarter century. I have seen all kinds of briefs and memoranda…In the end, it does not influence the decision. But, having said that, the goal of every lawyer in court is to advocate and be persuasive. So it is helpful to the lawyer to have polished work product that is not jarring because of typos.

I am not a stickler for perfection in other people’s work. I am in my own. My philosophy is that lawyers in court have a difficult job. And I am aware of that and remind myself of that every day when I see lawyers coming into court. I try not to make their jobs any harder.

ML: I think that you have mentioned to me that you have never sanctioned a lawyer?

TF: That’s correct. And, in fact, I do not have in my form orders that people will be sanctioned if they do not follow them. There are plenty of rules already that say that lawyers will get into trouble if they fail to follow the law. I don’t want to assume that lawyers are not going to follow the rules. I always give them the benefit of the doubt. I don’t think I need to warn them before they’ve had an opportunity even to appear in court.

ML: Have you ever come close to sanctioning somebody?

TF: Not yet.

ML: Have you ever felt that a lawyer was dishonest to you?

TF: There was one minor occasion. I can’t remember it very well, so it wasn’t major. It was an exceptional event in my mind.

ML: Do you ever get mad at lawyers?

TF: I don’t think I get mad. Sometimes I get frustrated when they’re not helping me figure out what to do. But, oftentimes, it is because we are on different wave-lengths and I am not making myself clear as to what I need.

ML: You seem enormously humble and trusting.

TF: Some might say naïve. But that is my general approach. I think lawyers do good work and have a hard job.

ML: Did you ever threaten sanctions when you were practicing?

TF: I had the largest sanctions award in the state of Minnesota at one time until the Supreme Court took it away — that I obtained, not that was obtained against me. [Uselman v. Uselman, 464 N.W.2d 130 (1990)] Aside from that and one other case where a client felt strongly and I felt less strongly, I have never made a motion for sanctions.

ML: Well, it is quite clear that you’re no fan of motions for sanctions.

TF: Right. It created a lot of satellite litigation. It did more harm than good at the outset because it increased the expense of litigation, exactly contrary to its purpose.

ML: Do you have a similar predisposition against punitive damages?

TF: I have not had a trial yet on punitive damages but in both cases in which I have had a motion brought to add a claim for punitive damages, I have granted the motion.  Actually, it might be three cases by now. None went to trial. So I don’t have a lot of experience with punitive damages. But it seems to me that, under the statute, if the facts support it, I have no discretion to deny a motion to amend.

ML: If you could take out a red pen and make changes to the Minnesota Rules of Civil Procedure, would you make any?

TF: I don’t think I’d make any. I would discourage the use of interrogatories and requests for admissions in many cases because I don’t think they are generally worthwhile. There are some cases in which they are ideally suited but, when I was an arbitrator, I sometimes barred the use of requests for admission, to which the lawyers readily agreed, and limited interrogatories to a handful.

ML: In what cases are requests for admission “ideally suited” then?

TF: They are commonly used in collection cases to ferret out whether the alleged debtor is actually contesting the debt itself and has a basis for challenging the debt. That limited use is common and may well be appropriate.  Litigation has changed in many ways over the course of my career, and one way is that it is so document intensive. So asking interrogatories and serving requests for admission do not yield very useful information compared to what you can get from the documents and from concise depositions.

ML: Any other changes that you would make to the rules of civil procedure?

TF: No. But one thing that I would recommend to lawyers, at least in my courtroom, is that they request status conferences and discovery conferences more often. Because my experience is that those conferences, which can take 5-10-15 minutes and can be done by telephone, can accomplish quite a bit and get everyone on the same wave-length and improve the processing of cases for all concerned.

In fact, I have a rule in my chambers that nobody gets a hearing date for a non-dispositive motion until I have had a call with the lawyers. There are some exceptions but 99% of the time I am able to resolve the non-dispositive issues before any motion is filed.

ML: Well, that procedure, requiring a call-in to the court, could be incorporated into the rules?

TF: There are already provisions for discovery conferences, telephone conferences, and pretrial conferences. Rule 16. Rule 26. I just have gone a little bit further. Based on my experience as an arbitrator where I did the same thing and I found that lawyers liked it.

So I think I have only had a few discovery disputes that were actually briefed over the past year. Those were cases where, for whatever reason, it was too complicated to understand what the lawyers were saying — I could not figure out the right result until I saw it on paper. But most discovery disputes can be resolved over the phone.

ML: I want to address an area of civil procedure that I find very difficult and, honestly, I cannot figure out why it is so difficult: the issue of the timing of appeals, which very recently was addressed by the Minnesota Supreme Court. Why does our system appear to be so opaque? Why can’t courts say, “Here is my order. You have thirty days from today’s date to appeal…”?

TF: I have two responses to that. First, the trial courts do not control appeals, the appellate courts do. So we are not in a position to say what is appealable and when.  Second, there is a historical reason for some of the confusion about when you can appeal and it relates to the practices of filing “notices of filing orders” and “notices of judgments.” I think that grew out of the practice in the olden days when you could not be sure that all parties received notice from the clerk of an order or a judgment. So no one could be held to have notice of an order or a judgment until the other party formally told them of the order and judgment separate from the clerk.

So there are some cases holding that the appeal period never terminated because a party failed to serve a notice of filing on the other party. But now, given the reliability of the U.S. Mail and, even more, electronic notification, maybe appeal rules could be clarified a little bit but that’s outside of my element other to say that I sympathize with you because it has been a problem.

ML: At a recent bench and bar presentation that we both attended, I noted a deviation between lawyers and judges as to whether lawyers would want judges to signal their inclinations as to how they’d rule at the conclusion of oral argument on a motion. The large majority of lawyers present seemed to suggest that they would appreciate such a signal. Many of the judges, it seemed, thought that lawyers would NOT want immediate feedback like that. I am curious about your thoughts on that.

TF: I remember that specifically. Another judge and I had informal discussions about that before and after that exchange. The other judge said that he recalled from his practice that he disliked being told the result as he was packing up his bags to leave, thinking there might be a graceful interval – my words – before you get the decision in writing from the judge.  Otherwise, there might be an impression that the oral argument was unnecessary because the judge must have had his or her mind made up beforehand.

I told the other judge that I had a different view. It helps lawyers to know earlier rather than later what the outcome is. One of the delays in litigation is that it is often held in suspension while a motion is under advisement. So this other judge did tell me, informally, that he was inclined to change his practice as a result of the feedback from the lawyers.

ML: A closing question: if you could time travel and talk to young Tom Fraser and tell him something you now know that you did not know then, what would it be?

TF: I would say one of the best ways to get litigation experience is to get criminal work, either as a public defender, or private practice criminal defense firm, or, certainly, in a prosecutor’s office. I admire the litigation skills of criminal defense lawyers and prosecutors because they clearly have a lot of experience and, with experience, comes efficiency.

It’s harder and harder to get trial experience for the civil bar and it is becoming a problem in training civil litigators.

Another way to get trial experience is to encourage lawyers to take pro bono cases where there are pro se people in court – already in court – and the trial’s about to happen. The courts and the parties and sometimes even the opposing parties would very much appreciate having a lawyer represent that pro se person so that his or her position would be better articulated in court, better understood, and handled once — instead of repeatedly where we get motions to vacate later on or motions to reopen the judgment.

We have been working with Volunteer Lawyers Network to expand a program where lawyers would agree to be contacted by VLN periodically to see if they had time to handle a small case.

ML: One last follow-up question: what are the deficiencies you see in the inexperienced civil trial lawyer? What is missing? Where do they screw up? I do recall a point that you have made that Minnesota Litigator has already published about: that civil litigators do not need to walk the court and the jury through experts’ lengthy and boring qualifications.

TF: That’s right. Juries don’t really need to hear foundation. Aside from that, I don’t have one over-arching point but I have several observations, having watched many trials. One thing that I repeatedly see is that lawyers cross-examine too long in civil cases, unlike criminal cases. My view is that you do not win cases on cross-examination generally. The best thing you can hope for is to neutralize some or all of the direct. But once you have done that, you’d better sit down and move on to the next witness.

The second, related point, is that litigators always have certain good points to their case. But, having mentioned that in opening statements, perhaps sliding it into voir-dire, then repeating those points with the first witness, you do not need to repeat them with every single witness. It treats the jurors as idiots, as they have told me,and it prolongs the trial AND, counter-intuitively, it weakens those points. They’ve heard it so often it tends to blend into the woodwork.

A more general comment: during the year or more it takes a lawyer to get a case to trial, extensive discovery is taken, but 90% (in big cases) of the information learned in discovery is not presented at trial.  But, in my view, lawyers have trouble disregarding the information they have decided not to present.  Because it took the lawyers a year to discard the 90% of the information they will not offer at trial, they think the jury won’t understand that  remaining 10% unless they repeat it often. But the problem is that the jury carries no baggage with regard to the 90% of evidence that is not being offered. So it is not hard for them to listen to the 10% and to remember the 10%.  So, as one juror put it to me when we talked after a case, “Maybe they can repeat it once, just to make sure we got it. The second, third, fourth, and fifth times, we really don’t need that. And we think that they think we’re stupid … .”

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