Normally, Minnesota Litigator profiles are of Minnesota civil litigators whose practices are somewhat “niche” and who therefore are not as widely known as the depth of their expertise might deserve.
But, recently, I have strayed from that to provide Minnesota Litigator readers with profiles of more widely known lawyers. (Here is my most recent post about Minneapolis attorney Stephen L. Smith and, at the end of the profile, a list of the many others I have had the privilege of profiling.) Clayton Halunen definitely falls into the latter category. For the past twenty years, Clayton has been a plaintiff’s side employment lawyer. He owns his firm, which bears his name.
Nevertheless, Clayton is a worthy subject. He is expert in what he does. He is dedicated. He is talented. He’s passionate and he’s opinionated, which makes for a great interview.
What laws would you change if you could change them?
Where should I start? Many. In my estimation, the number one travesty in employment law is the high rate of summary judgment. I have watched this through my career. It appears to have become a docket management system rather than a justice system. We see, regularly, judges who will dismiss a case when there are material facts in dispute. Regularly. It is wrong. It is unconscionable. They took an oath to apply the law. So if I could change anything, I would require judges to adhere to the standard set down by the Supreme Court. As long as they do that, it is a fair playing field. But, weighing evidence, making credibility determinations, happens all the time by district court judges. It is simply wrong. It is not what the law provides.
The other thing I’d change concerns arbitration — the U.S. Supreme Court’s decision in AT&T v. Concepcion. The case allows companies to require workers and consumers to arbitrate disputes individually, only independently, without any group action. If the public only understood what companies are getting away with by their ability to require workers – these are adhesion contracts, there is no negotiation – … the forum is clearly set up for the benefit of the corporations. It’s just wrong. You don’t get your day in court. Most consumers can never challenge a corporation on their own. For a consumer product — say a defective product — no consumer can afford to hire experts. No lawyer will take it on. It completely changes the playing field, gives all power to corporations, and that’s a travesty.
I hope there will be legislation to change that. The Federal Arbitration Act was never intended to be used as it is now. It had its origins in maritime law.
That was my soap box.
Are there any corporations you regard as model citizens?
Yes, there are. There certainly are. I find that the smaller the corporation, the more likely they are to adhere to principles, to positions and ethical conduct. But the larger they are, the more accountable to shareholders and stock prices, the more they are compelled to push the envelope. I think they lose their ethical compass for profit. That is where is gets lost.
Do you think government should limit the size of corporations?
No. I believe in capitalism fully. But I am firm believe in the golden rule. Corporations that act responsibly, ethically, will do better in the long run. Because they deserve to do better.
How many people at your firm now?
We have 12 lawyers. We have staff so a total of about 20-25. The biggest we’ve been is 14 lawyers. We’ve been between 10-14 in the last five years.
Are you 100% plaintiff’s practice?
Yes. Half employment and half class action. We do not defense work. If we got a call requesting defense work, we would not do it.
And, by the way, Seth, why don’t we get referrals from you?
[Interviewer stammers, blushes, and points out that there are many worthy plaintiff’s side employment lawyers but recognizes that Halunen is one of the best and deserves consideration.]
There is no one as good as us. We have very good results. Do you know that we have recoveries in over 95% of the cases that we handle? I don’t think there are any other plaintiff’s firms that can say that.
So many people think they’ve been wronged, think they have cases, when they do not so it is the case picking, the triage, that makes your business profitable or unprofitable, right?
Exactly. We take between 2-5% of the cases that come to us.
You have a system in place to review potential cases?
We do. Intake.
Is it a tiered process where a paralegal reviews and then elevates for lawyer review?
No. A lot of firms do that. We do not. Only lawyers can review. You have to have a certain depth of knowledge. If you’re not trained and if you don’t know the case law, you will miss things. Trial and error, we have learned that it is best for lawyers to do the initial intake.
Do you have a form that you use?
Yes. We do.
Is it one-person veto-power?
Interesting questions, Seth. We actually do have a tiered system. Funny that you ask because we just had a meeting this morning. We’re changing our structure as far as who handles calls. We have, right now, the intake attorney, has full authority to make a decision.
But, at a certain level, we do have to look at salaries. Because salaries are very indicative of the value of a case. Higher wage earners — in our business that means over $100,000 — then it has to come to me or another senior level attorney to make sure that there is no claim before the claim is rejected. In some cases, there might be some severance negotiation potential, for example…
How frequent does the firm get calls?
We get calls all day long. The person doing intake cannot do much else because it consumes them. We’re trying a new thing where we are splitting intake on a given day between two lawyers so they do intake for half the day and can work on cases the second half.
We get, on average, 10-12 calls per day.
Well, that would not take the intake lawyer all day, would it?
Actually, a typical call, believe it or not…30 minutes is short. 45 minutes to an hour is average. So it is not like you pick up the phone, “You don’t have a case….” We go through a litany of questions. And a lot of people like to talk. They want to tell you their story.
How long have you been in this business?
20 years. It has become a business that I just get.
I had a great compliment the other day. Someone called me. They had gone to another lawyer, a colleague at a defense firm, and asked, “Who is the biggest hard-ass I can hire because that’s who I need?” and the defense lawyer gave her client my name.
We fight. We fight everything. We never give in. That’s what people want and deserve. Especially in our practice areas. Consumers who were defrauded by companies or employees who have been wronged by their employers. It takes a fight. The defendants have the resources to take you on.
I had not realized you did plaintiff’s consumer fraud litigation.
50% of our business is consumer fraud class action work. We do “natural” litigation. Misbranding. We had a case, for example, involving the sweetener, stevia. Shingle cases. Siding. Decking. You name it. We do all that.
What is the worst part of your job?
Because I am the sole shareholder, I am responsible for all of the people. To cover the overhead. To pay. Sometimes I don’t sleep at night because of that. That is my number one worry. Things always work out. But there are those times when money’s just not coming in.
I assume you have a relationship with a bank?
Yes. We do. We’ve been fortunate. We have never had a problem getting a line of credit. You have to have that when you have a contingency practice.
You have always had an employment practice?
From day one. The consumer work is from the last seven years.
Where was law school and where are you from?
Hamline. And I am from Virginia, Minnesota. Up North. I am from the Iron Range. In fact my partner and I have a place on Lake Vermillion and that’s where we spend a lot of weekends.
You fault corporations for “pushing the ethical envelope” but, in promoting your employment practice by saying “we fight everything,” aren’t you doing that too? Do you find yourself having to drop cases because you won’t fight everything – when you don’t have a case?
Absolutely. I have a conviction. I will not represent anyone who lies to me. I will not represent anyone who is dishonest. I will not represent anyone who makes up facts or makes up a claim. I despise it with every fiber of my being. If I ever find out a client has lied, we will drop them as a client. I don’t have any respect for people like that.
Do you find yourself on a regular basis having to walk away from claims when you reach the conclusion that your client was not honest with you?
No, not often. Many of my friends are defense lawyers. Some of them firmly believe that all of my clients are liars and schemers. They are sort of surprised when I tell them that, in my career doing this, there have been very few times where I have found someone has lied. I could probably count it on two hands. Most of the time when people call lawyers because of an employment problem, it is from a sincere belief that they have been wronged.
I had a call the other day from someone who’s employer simply called her up and said, “You are terminated,” and, when asked why, the employer answered, “I do not have to tell you that and we’ll just leave it at that: you are terminated.” I understand that’s true of an at-will employment arrangement, but if you were advising the employer, would you advise differently?
Yes. Of course, the employee is entitled, under Minnesota law, to a truthful explanation if she submits a request in writing. But the employer would not have to give this information in a telephone call.
But, an employer can just say, “I don’t like you.” That’s what I might say. So many times employers give reasons that, it turns out, are a lie. They feel like they have to make something up? But, in discovery, we can blow those pretexts out of the water.
If I were advising companies, I would advise them to tell the truth. They’re going to be filing for unemployment. You’re going to have to be dealing with this. So you better have your act together and figure out what reason you are going to give.
You take cases all over Minnesota?
Yes. We handle cases around the United States (primarily for the consumer stuff).
How many trials do you have per year?
For the firm, 2-3. That’s doing pretty well. I don’t know any other plaintiff’s employment firm that is doing 2-3. Our track record has been pretty good. I love trying cases. It is my favorite thing to do. I don’t love preparing for them, but the rest I like. It’s just a lot of work. But I love every minute in the courtroom.
Do you prefer state court?
More informal. I am allowed to try my case. In federal court I am much more limited. Even in voir-dire [questioning potential jurors], which I think is crucial to the case, most federal judges don’t allow you to ask anything substantive, because they do it. I feel I don’t get an opportunity to really select the kind of jurors I want.
State court, my god, judges let us do whatever we want. They let us try our case.
Across the board?
It’s my observation in Minnesota. It’s the only state where I have tried cases.
Do you speak with jurors after trials?
Yes. Whenever I can.
What do you learn that you can pass on to trial lawyers?
It is amazing to me how jurors really have a good sense of the truth. Almost a gut feeling. They go with that gut feeling. As opposed to liking the plaintiff or liking the employer or liking the lawyer or a lawyer doing an amazing opening or closing…These things are important. But I think people have a real sense for truth and I think it’s a great system.
Have you changed the way you try cases from juror feedback?
I need to develop better skills for the emotional component. The emotional distress component of damages. I don’t get the jury to empathize with my clients enough. Because I have never gotten a big hit. I have gotten hundreds of thousands. But never a big hit for an emotional distress claim for employment cases. I think I have to figure out a more effective way to sell or explain the extent of an emotional injury because it is something you don’t see, unlike a physical injury.
Isn’t it the plaintiff, him or herself, that needs to sell that?
That’s very true. Cases in which we have had successful results have been cases where the plaintiffs are good people. Jurors observe them and see they’re honest, they have integrity.
In two trials I lost, the two clients, I believe, lied during their testimony. Things I had not been aware of. Things came out. They were caught. The jurors saw it.
One person, a whistle-blower case, I found out the client had a prescription drug addiction right before trial. The defense got records of prescription drugs she’d been getting all across the country. She lied about it on the stand. She lied about her use.
The other person lied about something that I thought was material. The jury saw it.
What is your advice to someone graduating from law school right now who can’t find any work?
Great question. That happened to be the exact situation that I was in when I graduated from law school. There was no work. Anywhere. It was one of the worst economies. 1991. What I did, and what I tell anyone who asks me that question, which happens a lot, is “knock on doors.” Go out and meet people. Meet friends of friends. Acquaintances of acquaintances. At some point, someone is going to be able to help you out. You cannot do it just by sending out resumes.
I was able to open doors by being persistent and doing something every single day.
And that worked for you how?
So the work I found was with a single practitioner who did everything in Duluth. Knocked on his door. Kept bothering him. Finally he gave me a shot. And I told him I wanted to create an employment practice and he was fine with that. And I built a significant employment practice in Duluth in a matter of 2-3 years.
Is that lawyer still practicing?
Yes. Great guy: Mike Talarico. A city counselor for many years and a really great guy.
What’s this about another business venture you have unrelated to the law?
There is a business that I have been looking at for a number of years in North Carolina. We’re trying to put together a proposal to acquire it. They have a product for sterilization for food and medical industries — well, any industry actually — that kills bacteria. These bacterial soaps, the way they work, is you put them on a surface and the bacteria can’t attach so they slide off. This method actually is applied to the surface and kills the bacteria and it is non-toxic and there is nothing in the market that is remotely close. It’s completely safe. It’s 99.9% water. So we’re trying to acquire the company. I cannot tell you what it is.
I have not done this before, investing in businesses. This is a new thing for me. I am trying to expand my horizons, don’t want all my eggs in one basket, as they say.
A lot of lawyers, I think, never really get that business savvy; they’re not trained in business.
Well, when you run a small law firm, like I do, you have to get the business part of it. I have had to learn. Not by choice. I don’t think I was born to be a business person but I have had to become one.
[Previous Minnesota Litigator Profiles: Stephen L. Smith, straddling a civil and a criminal litigation practice, Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer.]