• July 1, 2013
Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

There are quite a few land mines in the latest revisions to the Minnesota Rules of Civil Procedure, which go into effect today.   If you are a Minnesota civil litigator, I strongly suggest you review all of the rule changes yourself and do not rely on paraphrasing by Minnesota Litigator or any other source.

That said, the two significant risks that I note are (1) if you “pocket serve” a lawsuit (that is, if you commence the lawsuit by serving summons and complaint but you do not file with the court, a Minnesota civil litigation anomaly) and if you do not file the lawsuit against any party within one year, absent a stipulation to the contrary, your complaint is deemed dismissed with prejudice against all parties; and (2) the rules now expressly provide for potentially serious sanctions for failing to supplement discovery responses.  Editorial comments after the break…

These changes are bad.

The first change could have disastrous ramifications for Minnesotans whose lawyers negligently miss the deadline for filing a pocket-served complaint.  I frankly see no value or point to making the dismissal be “with prejudice,” which means that the lawsuit may never be brought again.  Some commentators have suggested that the language, “is deemed dismissed with prejudice,” is ambiguous and it might allow latitude for a trial court to treat it as a rebuttable presumption (as if it said, “is deemed dismissed with prejudice absent some indication that it was not intended to be…”).  Good luck with that argument.  Minnesota courts will have fun sorting that out in years to come.

I predict that the second change, like the first, may be exploited as a trap more often than it will prevent the ambushes that it was likely designed to deter.  Life and business are not frozen in amber when civil litigation is pending, of course.  It is extremely difficult to update one’s adversaries on every development in every case in real time.  Lawyers (and/or their clients) forget to inform their adversaries of details and developments in every case (most often minor, tangential, but an opportunistic adversary will exaggerate any such lapses for advantage if possible).  (Sometimes — often — clients (particularly legally unsophisticated ones) fail to appreciate the relevance of a development and they fail to inform their lawyers.)

While the lawyers and their clients in the event of such lapses can and should bear the responsibility and the consequences for them, adding this list of sanctions (as opposed to dealing with the issue through exclusion of undisclosed evidence or, if severe enough, postponing the trial or extending the schedule, which are common consequences), may cause a great deal more harm than good.  And it does not bode well for civility between Minnesota civil litigation counsel when the rules invite the exploitation of inevitable human short-coming rather than being more narrowly targeted at intentional dirt-baggery.

The saving grace for this second rule change is that the list of sanctions are discretionary, which means that it is possible, and I hope, that trial courts will exercise their discretion reasonably and not punish lawyers or their clients for being human.

[An aside: for purposes of this post, I assume without deciding that all lawyers are humans.  The day I wrote this post, actually, a process server in a far-off state whom I contacted to serve a summons and complaint asked me, “Are you a person or a lawyer?”  She asked me that in response to my asking her how much service would cost.  Talk about price discrimination.  I like to think that lawyers get a discount but who knows?  I assured her that I was calling as a lawyer and not a person.]

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