• December 11, 2017

We celebrate the attached contempt order, issuing a sanction of over $89,000 in attorneys’ fees for misconduct in discovery, and here’s why:

Some years ago, we were preparing for a trial when, in the intense few weeks before the start of the trial, the other side brought a motion to amend to add a claim for punitive damages against our client. As all experienced Minnesota civil litigators know, such motions are required by statute before any claim for punitive damages is allowed and it is rare that such motions are granted. The motion for punitive damages was completely inappropriate in the case headed for trial.

We were incensed that our trial preparation had to be interrupted to fight the baseless punitive damages motion and we asked the Court not only to deny the motion but to sanction (i.e., punish) the other side for bringing the baseless motion.

The Court agreed with us and, in a written order, provided that sanctions would be applied at a later date.

It is now years later. The case was resolved. The trial court backed away from the discipline that it had said it would impose.

As discussed in the recent Minnesota Litigator profile of former U.S. Magistrate Judge Jeffrey Keyes, the high cost of civil litigation is probably the biggest problem in our civil justice system and, to some degree, it is caused by uncooperative parties and their lawyers.

Our courts are in a difficult spot, wanting to recognize that civil litigators (and their clients) face enormous complexity and challenges; the courts are reluctant to go over-board with sanctions and discipline out of concern that judges’ expectations of litigants and their lawyers might be unrealistic or inflexible. On the other hand, judges more than anyone must embrace the idea of cost/benefit analysis and punishment to deter wrong-doing.

If litigants and their lawyers can cut corners, can skirt around court orders, can play fast and loose with court rules, without fear of punishment, they will. And they do. And that raises the cost of civil litigation.

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