• October 28, 2014

Smith2Minnesota Litigator has profiled a bunch of Minnesota civil litigators because there are many highly talented and exceptional Minnesota litigators whose practices are in narrow areas of law so their reputations are not as well-spread as their excellence deserves.

Twin Cities litigator Stephen L. Smith stands out as an advocate for many reasons but, unlike all of the other Minnesota Litigator profile subjects, his practice is also extraordinary because he has an active practice on both the criminal and the civil side.

How is your practice going these days?

I stay busy. I’m currently preparing for two trials. A criminal trial next week and federal civil trial in a discrimination case next month. Staying busy has never been the challenge. I have always had a lot of work. The challenge, at least for the civil side of my practice, lies in the fact that it is primarily a contingent practice. That means I have to resolve cases favorably, either through trial or settlement. Otherwise, my client recovers nothing, nor does my firm.

What kind of practice do you have?

I practice in three areas that I find very rewarding even though I tell people they are some of the most difficult areas of law to practice in, at least from a financial perspective. You spend lots of time and money seeking justice for clients in contingent cases you may never get in front of a jury. The hurdles are no less challenging in criminal cases, perhaps not as much financially, although there is an element of this in the equation. The bigger challenge here is that you are fighting about whether someone potentially is going to be sitting behind bars or carrying the burden of a criminal conviction, or even whether constitutional rights have been violated. The nature of the work that I do is at the heart of why I went to law school. I’m a trial lawyer that practices:

  •  Employment litigation, primarily on plaintiffs’ side;
  • Criminal defense; and
  • Civil rights. Most of these are police misconduct cases.

My police misconduct cases have ranged from intentional violations of the Minnesota Data Practices Act, false allegations of criminal behavior, and even wrongful death. Underlying all of the misconduct cases I take is the sense that law enforcement has abused its authority. For example, I’m currently litigating a case in which officers forcibly removed a woman from her home after she indicated her reluctance to come to the station to speak with an investigator regarding a shooting they suspected she had information about. She feared for her safety and that of her family, and offered to speak with the investigator in her home. The officers refused. It is our contention that they had no right to handcuff her and take her out of her house. She had not committed a crime. At best, she witnessed a crime, a serious matter, a person was shot and damn near killed. I appreciate the investigator’s desire to find the shooter, but the Constitution applies to everyone. The ends do not justify the means.

How long have you been practicing?

I have been practicing almost 27 years.

Do you feel outrage when there is abuse on the other side? Where people lie about police brutality, for example?

For reasons that are perhaps too cumbersome for me to articulate in this short interview, I’m skeptical that false allegations about police misconduct happens all that frequently. But when it does happen, I am more disappointed and saddened by it rather than outraged. The idea of trying to game the system does not sit well with me at all. People who do that are doing a disservice to themselves, to the system, and to the people that are trying to make it work.

I don’t have a particular axe to grind with law enforcement. They have a tough job, and I appreciate that. My focus simply is on whether law enforcement, in any given situation, is exercising its authority in a way that is legal and consistent with the Constitution because, in the end, that is all we have.

I tell juries, and I believe it: we have the best legal system in the world. Not perfect by any means, and it is always subject to criticism. But it is far better than resolving our disputes in the streets. Just look around the world and you see people engaged in conflicts in part because they don’t have a system that allows them to seek justice. Our’s is the best there is, as imperfect as it may be.

What would you fix or change about the system we have?

On the civil side, the cost of bringing cases to court is increasingly placing access to the system out of reach for a significant percentage of people in this country. Legal Aid and pro bono lawyers can only do so much. I would emulate what is being done in a few other states. Set up non-profit law offices through some or all of the four law schools in the Twin Cities. Employ recent graduates at a modest salary to provide legal services to a growing segment of the population that otherwise would be unable to afford legal representation.

On the criminal side, I think we have to continue to look critically at decisions made during the life of a case, from beginning to end. I am talking about from the officers on the street making decisions about who to arrest, to prosecutors making decisions about who gets charged with a particular offense. I have a tremendous respect for prosecutors that make fair decisions about cases to prosecute. By that I mean when the state’s case goes south – in other words, the evidence no longer supports the prosecution – I respect the prosecutor that makes the decision to dismiss it. It doesn’t mean they don’t fight vigorously, but sometimes a case will take an unexpected turn and dismissal is warranted. Not every prosecutor is willing to do this. Similarly, I respect officers that check the “arrogance at the door” and handle their business in a professional manner. I have good relationships with some members of the law enforcement community. Some have referred clients to me. Some have even consulted with me on their own potential legal matters. I have even complimented officers’ professionalism in their interactions with clients who could have gotten on the proverbial “last nerve.” All of this is to say that there are a lot of decent folks that work hard at trying to make the criminal side of our judicial system work well.

Nevertheless, the defense bar has to remain vigilant in fighting for the accused, forcing the criminal justice system to remain accountable in all facets of its operation. Without a strong criminal defense bar, law enforcement is bound to overreach and abuse its authority.

I get frustrated when I hear people say, “If you’re not doing anything wrong, then you have nothing to worry about.” That is SO not true. The innocent can and do get snared in the criminal justice system. Mistakes are made frequently, and sometimes with tragic consequences.

“Anyone who will trade freedom for security deserves neither.” I love this quote, which is attributed to Benjamin Franklin, because it speaks to my passion for seeking justice.

When was your last civil trial?

About a year and a half ago.

It was a personal injury case I tried in Dakota County. It was one of two cases a friend and colleague had referred to me. The cases involved a husband and wife each in separate car accident cases. Not the kind of cases I normally handle but I do have some experience with them. The husband’s case settled.

For the wife, it was a different insurance company, different facts. We tried it. I look back on it. I was disappointed that my client did not prevail but I did not walk away from this trial convinced that the jury just got it wrong. They just saw things differently than we did and there was a reasonable basis for that. On the other hand, I have had the experience in a criminal trial when I was convinced that the jury just got it wrong. Of course, most of us feel that way at one point or another. I don’t recall who told me this but I think there is a lot of truth in it: Attorneys take more credit than we should when we win and we take more blame than we should when we lose.

You say, “We tried it.” Did you team up for that trial or did you do it on your own?

It was on my own.

I have repeatedly expressed my view that one should never go to trial by oneself. I know that a fellow Minnesota trial lawyer of ours, Ashwin Madia, disagrees with this? Where do you stand?

I would agree with you that, logistically, trying a case by yourself is difficult. But the degree of difficulty will vary depending on the nature of the case. And sometimes you really have no choice, especially for those of us who are out here on our own.

I always knew that I wanted to do trial work. And the only way you get better at it is by trying cases. It comes with the territory. I will say that trying cases by yourself does require you to be really organized. And I have gotten a lot better at that. I do my best not to leave things to the last minute, although it does happen from time to time. That’s usually the case when I have too much on the plate.

[Editor’s Note: Ashwin Madia recently won a trial that he appears to have tried with a team but had the fee award sharply reduced in light of the modest recovery of the plaintiff. Some might argue that this unfortunate risk weighs in favor of a very lean trial team…]

You have to have nerves of steel to be a trial lawyer, right?

[chuckling] That’s right. Or just don’t let them see otherwise…

How many trials have you had over your 27 years of practice, as best you can recall?

Between bench trials and jury trials, I would estimate somewhere around 50 to 60.

There was a period of time when I was working on employment class action cases at Sprenger & Lang. About four years. I was involved in a lot of litigation, but none of the class cases I worked on ended up in trial while I was there. I do recall a bunch of mini-trials we conducted around the country in connection with a consent decree against Northwest Airlines during the early to mid-90’s. I think all but one of the class cases I worked on settled after the certification process. I enjoyed my experience at Sprenger & Lang. But I had left the Attorney General’s office after six years, during which time there was a lot of opportunity for trial work. And, over time, I did start to feel like I wanted to have more trial experiences again.

After Sprenger & Lang, you went to Messerli & Kramer. What kind of work did you do there?

I went to M&K with the intent of helping to build a plaintiffs’ employment practice. In fact, this had been my original intent after leaving the AG’s office but I wound up joining the folks at Sprenger & Lang.

When I left Sprenger & Lang, I still had the thought of going out on my own but I also liked the idea of joining a firm, having a safety net.

I was there for four years. It was a very good experience. Beforehand, I was not sure what to expect, I have to admit. But I worked with some good folks there and I see some of them still today.

How has the practice of litigation changed for you over your 27 years of practice?

Summary judgment. For nearly the first fifteen years of my practice, as best I can recall, I had maybe two to three cases that were dismissed on summary judgment. In part, I think that was due to the fact that employers did not bring summary judgment motions as frequently as they do now. Nowadays, it is the rare case when I do not see a summary judgment motion.

Do you think it is easier to get summary judgment in federal court than it is in state court?

That’s a good question. I am not sure I can answer it. I rarely do my civil litigation in state court.

I think it is quite rare to have a practice straddling civil and criminal litigation as you have. And I have heard lawyers and judges say that the criminal bar and the civil bar are extremely different. Do you agree?

Yes, to some extent. But the differences I see have more to do with the way in which cases are handled on a day to day to basis. On the civil side, at least in federal practice, case management tends to be pretty formal. The parties confer, figure out a schedule for discovery and motion practice, along with a trial readiness date, and then they work hard at trying to stick to it. You can make changes in deadlines, but only with the court’s approval.

In my criminal practice, which is primarily in state court, the judges handle a lot of cases on a daily basis. Although you maintain appropriate courtroom decorum, there tends to be less formality in the day to day transactions that take place. Unlike the federal courtrooms, which often seem like mausoleums, there are lots of folks coming in and out of the state courtrooms. Attorneys spend a significant amount of time negotiating. I think there is a fair amount of cooperation among defense attorneys and prosecutors in part because you have to work frequently with each other.

In my civil practice, if the dispute has not been resolved before filing suit, the parties generally do not return to the subject of settlement until after a decision on summary judgment, assuming the motion is denied. In my criminal practice, generally the parties are trying to resolve the matter as expediently as possible. Obviously, though, some cases just have to be tried.

Do you think the criminal bar is more experienced at trial and better at trial than the civil bar?

I would say, in general, yes. And that’s simply because there are more opportunities to try cases.

But there are those on the civil side who try a lot of cases and are very good trial lawyers.

What civil litigators do you know who try a lot of cases?

I think of the folks at TSR, Robins Kaplan, William “Buck” Strifert, and a whole host of lawyers that are members of the Minnesota Association for Justice. That’s a plug for a strong organization of trial lawyers, and I happen to be on the Board of Governors.

So personal injury litigation is the area of civil practice with the most opportunity to get cases to trial?


In employment litigation — the opportunities for trial are few and far between. In the last two years, I have tried four criminal cases and one personal injury case. No employment cases. It is all about summary judgment in those cases. If you survive that, it is rare that the case does not settle.

I have one of those rare ones now. I’m scheduled to try a discrimination case against the Metropolitan Council in November in front of U.S. District Court Chief Judge Michael J. Davis.

This is one of two cases I have litigated in which the court recently has ruled from the bench, denying defendants’ motion for summary judgment. The other was in front of U.S. District Court Judge Patrick J. Schiltz last Fall.

Did that case settle after that?

It did.

What advice do you want to give young lawyers?

Do your homework and bring passion to your work. You can talk forever about different things that young lawyers need to know and understand but, in a nutshell, the most important thing about being a lawyer is a commitment to doing the best job you can do for your client. That includes bringing passion to what you’re doing.

If you want to be a trial lawyer, get in the courtroom and try cases. Trial work is some of the most interesting and exciting work you can do as a lawyer.

If you weren’t practicing law, what would you do?

I love to write and I imagine being a fiction writer one day. Before I went to law school, I was training to become a journalist. That’s what I thought I was going to do. I got a bachelor’s in journalism. But, along the way, I decided that I wasn’t going to change the world as a journalist. And that’s what I wanted to do. I was a young idealist who wanted to make a difference in the world, a difference in people’s lives. So I went to law school. But I have always enjoyed writing.

[Previous Minnesota Litigator Profiles:   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.]

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