Minnesota Litigator has interviewed and featured lesser known Minnesota civil litigators for years — experienced litigators whose expertise is narrow and deep so they tend not to be widely known in the community.
This profile deviates from that practice. In my view, Mr. Lewis “Lew” Remele’s reputation and accomplishments in Minnesota civil litigation for decades have been broad, unrivaled, and unsurpassed. So, I have to assume that many civil litigators are very well aware of Lew. But read on, get to know him better, and learn a few things:
ML Interviewer: I’m extremely grateful for you doing this. I regard it as an extremely generous thing. I know that the readers will like it.
Lew Remele: Well, I’m glad that you’re doing the blog because I think it’s really helpful to have all this dialogue around what the practice is doing and how it’s working because, I was just telling somebody the other day that, in fact — Fred Finch has been real involved over the years in the ABA — he’s been the delegate. He said apparently, they’re now even debating at the ABA level whether they’re going to have the convention anymore because lawyers really don’t either (1) have the time or (2), don’t have the inclination to get together anymore to discuss generalized issues related to the practice. Everything is so specialized so, at the ABA level it’s the same thing. At the state level the sections have essentially taken over and subsumed general bar meetings that’s being done. As a result, you just can’t get anybody to go to the conventions. It becomes really difficult; things like this are really important for lawyers that communicate with each other and have an outlet to talk.
ML Interviewer: I’m, of course, delighted to hear you say that. I love when I get feedback, even criticism at any time from anybody. The thing I thought I’d just start off with … Basic questions about you personally because I think that would be interesting in light of all you’ve achieved. Where are you from originally?
Lew Remele: Well, I’m from Minneapolis but, I didn’t grow up here. I was born in Minneapolis but my father was in the grain business. We lived in Minneapolis until third grade. Then, from third to seventh grade, I lived in Duluth, Minnesota. From seventh grade to tenth grade, I lived in Buffalo, New York; a suburb of Buffalo, New York. Then, I actually graduated from high school in New Orleans, Louisiana. Then, went away to college from New Orleans.
Everybody, all my family, my grandparents, my cousins, were from here. This was always considered home. When I graduated from law school, I took a couple years off between college and law school, in ’75. I really didn’t intend to practice here. I intended to go back out East to practice. I ended up taking a clerkship with U.S. District Court Judge Miles Lord [(D. Minn.)] at the time he was just winding up the Reserve case, and then he was trying the Tetracyclene Price Fixing cases. As a result of that and clerking, then I realized that it was really kind of nuts not to practice here, which I’m really glad … I think I would have greatly regretted it if I hadn’t.
Everybody in my family was a lawyer, except my father. Both my grandfathers, all my cousins, all my uncles …
ML Interviewer: In town here?
Lew Remele: Yes. At one time, my uncle had a firm in the ‘60’s here in Minneapolis. It had about twenty lawyers in it, which was a pretty good sized firm back them. They were all relatives. I realized once I started clerking that there were just a lot of obvious affinities and associations here. It didn’t make a lot of sense not to practice here, which has been a wonderful place to practice; it really has.
ML Interviewer: You went to Harvard and then law school at Creighton, in Omaha?
Lew Remele: Yes. My undergraduate major was in History, probably like every good lawyer. I couldn’t stand the sight of blood and I couldn’t add. It was a liberal arts major. I had probably ten, twelve relatives that went to Creighton Law School. At one point, I don’t know if this is still true, I’ve never looked into it but, Creighton University was the only Catholic University that had a law school between here, the Mississippi, and the west coast. I think Gonzaga was one of the others. My mother’s side of the family was all Irish Catholic and they all went to Creighton Law School.
ML Interviewer: So you were in New Orleans and you went off to Harvard from there? Must have been quite a shift for you.
Lew Remele: It was. It was very different. A lot of fun too. I mean, Boston was a really fun place to go to school. Harvard in those days, for the first two years, it was sort of a traditional college education. Then in our junior year, which would have been ’68-‘69, was when a lot of the turmoil started. The Spring of my junior year was 1969 … ‘69 was when we had the university strike and ended up with school being closed. 1970, when I graduated, was Kent State and all the other issues. I spent a lot of time, back in the latter part of my college years down in Washington, protesting the war and getting involved in that issue.
It really changed. I mean it was just literally like 180-degree difference between the first two years of college and the second two years. I’m actually just going back to my forty-fifth reunion in a couple weeks and, our class has, historically, always been one of the more difficult classes. One of the lowest giving classes, in terms of donations, one of the classes that’s always been viewed as, sort of the misanthropes because we did go through such an interesting period. I think that it really affected all of us in a lot of different ways. When we get together for reunions there’s a lot of discussion about that. It’s kind of an interesting thing to look back and get some perspective on it.
ML Interviewer: Do you think young lawyers coming out of law school today could have a legal career like you have had?
Lew Remele: That’s an interesting question. I think it would be difficult for this reason: when I came out of law school, specialization was just a topic. It was something that was, sort of, an aspirational thing that everybody talked about. It hadn’t taken hold. As a result of that, the way I learned how to be a trial lawyer was really that the skill was in the ability to take a lot of disparate facts and information, and distill them down into a message that was cogent and compelling to six people you basically take off the street.
It really didn’t matter what the legal subject was. You really tried every kind of case. Bill Egan once told me, “If want to really be a trial lawyer, you either have to do criminal … You have to be a prosecutor or be a public defender, or you have to do plaintiff personal injury work or defendant personal injury work in order to learn how to try cases. Those areas are the only place where you’ll get enough volume where you’ll actually get some trials. Whether you like them or not, try a case.”
I actually started out doing commercial litigation when I got out of my clerkship. I joined a small firm. It took two years to go broke. I also realized, because I was sitting in a warehouse in Chicago, looking at documents on an anti-trust case suit. I thought, “This isn’t what I want to do. I want to be in a court room.”
That’s when I went to Rider Bennett and then gradually, after about ten years of doing a lot of personal injury work, then I evolved back into doing commercial work. I think it would be difficult today to have the same kind of experience because, I’ve really tried every kind of case you could try. I’ve always viewed it as the skill is in knowing how to be a trial lawyer. I think because of specialization that would be a really difficult thing to do. I think lawyers like myself, in my age group, are dinosaurs, really, in a lot of ways. I’m not saying that’s a bad thing, it’s just really different.
ML Interviewer: You mentioned you were at Rider, Bennett and I didn’t know that. I think it would be interesting to tell me your journey to where you got. You clerked for Judge Lord, you mentioned. You tried to hang out your own shingle for a couple of years doing plaintiff’s side anti-trust.
Lew Remele: I did.
ML Interviewer: Very audacious.
Lew Remele: It was. It was stupid.
ML Interviewer: That’s another way of putting it.
Lew Remele: I thought it was a really good lesson. It taught me, really. I wouldn’t recommend this because I was lucky to come out the other end. At an early age in my career, it taught me a lot about the economics of the practice of law. Also, the importance of thinking strategically about where practice law was going and how it was going and all those sorts of things. I always had more of a keen awareness of that then a lot of lawyers had, simply because of the experience I went through and realizing it was really important to not lose sight of those kinds of issues as you were practicing. I did that for a couple of years.
Then, I went to Rider, Bennett in 1978. I spent ten years at Rider, Bennett and basically, within that time period I tried a lot of cases. Most of them were personal injury cases. At that time Rider, Bennett represented Farmers Insurance Company. We had a lot of smaller cases that young lawyers could try. We also represented the Milwaukee Railroad and tried a lot of railroad cases. We had a number of other different types of insurance cases. The last couple years while I was at Rider, Bennett, I was gradually going back and doing commercial litigation and changing my practice. When I went to, at the time it was Bassford, Lockhart … When I went there in 1989, I was still doing vestiges of the personal injury work, mainly because of some clients that continued to call me. After a year or two I went over to doing one hundred percent commercial types of work. That’s really what I’ve done since, being at Bassford. I’ve been there now since 1989.
ML Interviewer: Can you estimate the number of trials you’ve had?
Lew Remele: Boy, that’s a good question. Somebody asked me that not too long ago. I would say, if I were to take just all trials, both jury and court trials and arbitration’s and that sort of thing, it would be way in excess of a hundred. Take jury trials, it would be at least in the neighborhood of somewhere around seventy five, eighty.
ML Interviewer: When was your last trial?
Lew Remele: When was my last trial? Good question. Well actually, I just tried a case in the last few weeks. Down in Redwing, Minnesota, a probate case. It was a court trial. My last jury trial … that is an interesting question because most of the work, in recent times, has been more around either large arbitration’s or court trials. There’s been not as many jury trials. I think my last jury trial was maybe about a year and a half, two years ago. I think a legal malpractice case that I defended. Somewhere in there, I’d have to think about that but, I think that’s probably right.
ML Interviewer: When you’re in trial, at least in many years now, you are almost always up against lawyers who do not have the same amount of experience that you have. What advice you give to the unfortunate souls that don’t have as much trial experience you have? In other words, what are the failings that you see?
Lew Remele: Being a trial lawyer is really akin to, the closest thing is maybe, being a surgeon. You plan, you anticipate, and you think you know what’s going to happen as you go into it, and then, it never goes the way you planned it. It really is something that you just have to do repetitively before you really learn what mistakes not to make because that’s the best way to learn, obviously. It’s hard to give people advice in terms of what might make them a better trial lawyer. You will definitely feel more comfortable in the courtroom once you’ve tried a few cases and you kind of understand the dynamics and the flow of how people absorb information and how they process it, in terms of making a decision. I’m mainly talking about jurors now.
What I see today is a lot of lawyers, because they don’t have the experience, or over utilize technology, they get into the court room and they don’t pay enough attention to actually watching a witness when they’re testifying and how it might impact the jury. It’s really important to watch the jury. I know how hard that is when you’re either a young lawyer starting out, or you’re inexperienced. You’re so focused on making sure you ask the right question that you’re anticipating objections or how to respond to objections that are made … It’s so hard to multi-task in that environment when you don’t have confidence and some experience doing it. Most lawyers I see that are in that situation, they don’t watch the judge, they don’t watch the jury, and they don’t watch how the jury is reacting to the witness. It’s really important to do that, I think because jurors are just like all the rest of us. They get bored easily and they hate it when you continue to repeat and sort of pound them with questions; the same questions and the same evidence, the same point.
If you could take a deep breath, stand back a little bit, not worry so much about what’s on your computer screen or whatever technology you’re using. I’m a big fan of technology in the courtroom so, I’m not saying that you shouldn’t use technology. I definitely think you should. It makes the trial more efficient. You have to remember: it’s a tool not a crutch.
So, that’s the thing I see more and more of these days. I tell the young lawyers in our office and, I try to give them some advice and some critiques on their performances. That’s one of the main things that I see that I think people get waylaid on.
ML Interviewer: When you say you’re a big fan of technology in the court room, I’m imagining you mean programs like Trial Director™?
Lew Remele: Exactly. Using the proper equipment to display documents to the jury so they can see it and they can read it and understand what you’re doing and what you’re asking about. Using the programs to be able to retrieve documents and have met your command within the courtroom is so much better than the old days when we’d be flipping through files. You’re in the courtroom trying to find a document and it takes you forever. There’s a lot of advantages to technology. There’s also some drawbacks that you just have to be conscious of as you start to use it, I think, but not overuse it to the point of forgetting about the fact that you have an audience.
ML Interviewer: A client comes to you with a generic commercial dispute. I’ll just make up that it involves four million dollars of machines that may or may not be broken. They say, “Lew, should we go for a jury or bench trial?”
Lew Remele: I’m a big fan of juries and I always have been. I really am one of those people that believes that the system really works. There’s no question that you get aberrant results. You can’t always predict what’s going to happen but, I think you can predict within a range of outcomes. When you get six or seven people together they really do exercise a common sense, particularly if you ask them to apply common sense and not get so wrapped up in some technical, complex issues. That’s the other thing about trying cases that people always forget. It’s really important to keep it simple, simple, simple and to communicate. Again, that’s a hard thing to do. I’m a big fan of juries. I think in certain kinds of cases that it’s better to have a trial to the court. It’s an advantage, for example, if you’re defending a professional. Probably an advantage to try it the court as opposed to a jury, as a defense. As a plaintiff, you want a jury. To some extent, it would depend what side you’re on.
I generally think the system works, though. I really do.
ML Interviewer: Do you look back on your early trial experiences and have a recollection of one of those that, when you think of it you wince and and say to yourself, “That didn’t go right…”?
Lew Remele: Many.
ML Interviewer: Can you remember any anecdotes?
Lew Remele: Case results from juries that you just absolutely thought either you were going to prevail, or you thought you had persuaded them, and you got the exact opposite result. You then go and interview the jurors, which is a good thing to do and is getting harder and harder to do, partly because, in federal court, they won’t let you interview the jurors unless you talk to the judge. Mostly, when the judge asks jurors whether or not they want to talk to the lawyers, they sort of see that as a pass not to have to talk to the lawyers. It’s harder and harder in state court to get ahold of jurors too. They just don’t want to be bothered by it. You get the right person that will be talkative.
When you talk to jurors and find out what you thought was really an important issue and, it just wasn’t, it really makes you step back and realize you really have to think about what you’re doing in front of a jury.
Remember the old adage: you can’t call yourself a trial lawyer until you’ve won a case you shouldn’t have won and you lost a case you shouldn’t have lost. There isn’t any trial lawyer around that can’t relate to that statement, because it’s absolutely true. When you start thinking you know what a jury is going to do, it’s probably time to quit.
ML Interviewer: You’ve tried cases all over the United States.
Lew Remele: I have, yep.
ML Interviewer: What is the strangest venue that you’ve experienced? By that I mean most foreign to you in terms of how trial went?
Lew Remele: I had a series of cases back in the late 80’s and early 90’s where I was representing United Healthcare when they were really a small company and just getting going. They canceled a health plan and had a series of law suits all over. In particular, we drew the attention of the plaintiffs’ bad faith bar down in Arizona. They actually had a pretty well-developed bar and really good law in Arizona for a plaintiff to sue to get punitive damages on that bad faith breach of a first party contract. We had a case that would have been a bad fallout for United Healthcare if we would have lost it. It was hotly contested and contentious.
They had a system down in Arizona back then. I don’t know it still exists. You get close to trial, you wouldn’t have a judge assigned to the case and, as you got to trial, if there wasn’t a judge available, I can’t even remember what they called it but, it’s essentially retired lawyers who would be appointed to be a judge in that particular case. You did have the right to recuse the person but, it was really limited and it was difficult to do, partly because, they’d made it so impossible if you objected to the appointment and the person then they might say, “Well, we may not get to trial for another three or four months…”
Anyway, that’s the one that I remember the most. When we sat, and we were in the old courthouse in Phoenix and it was really hot. No cell phones so, they had a pay phone in the basement of every courthouse and everyday after trial, I’d go to the basement and call the CEO and he’d say, “How are we doing today?” It was about a six or seven week trial. And the judge we had was a retired assistant county attorney or prosecutor and whoever got the last word in, was how he’d rule. We would have these extended, I mean painful sidebar conferences. There’d be an objection, we’d go up to the bench and we’d argue, literally, for like thirty five or forty minutes. I got to the point where I was watching the jury out of the corner of my eye, and I could tell they were just really getting steamed and mad about it. This judge, or retired lawyer, actually, just couldn’t make up his mind. It was really painful. That process was something. I thought, “Oh boy I hope nobody else adopts this process. Really dumb.”
I remember another thing about that trial is I had a really good expert from New York City. I don’t even remember what the topic was. We’d walk up to the bench for these long sidebar conferences. This was a really small court room too. I noticed, and the other lawyers weren’t noticing that my expert, when we’d go up to the bench to start talking, he would start talking to the jury. Of course, the judge was clueless about it. No one was paying attention. I thought, well maybe this is a good thing.
I’d deliberately try to provoke the other side, make some objections. Then we’d go up to the bench, and I kind of make an argument and I’d see that my effort was working. I might say something else at the side bar that was kind of incendiary to make these guys get all in knots, again. All the while, the jury’s talking with my expert, “Well, what do you do in New York? Where do you live?”… It was nothing about the case. It was all about just getting to know each other.
The lawyers were so invested in their arguing, they didn’t notice.
ML Interviewer: What is the next trial on your calendar?
Lew Remele: Well, I have a couple of arbitration coming up this fall but, the main things that I’m working on these days is there’s a really large complex case that I’ve gotten involved in that, I think is going to be the largest case that’s ever been in the municipal court system. It involved a number of cases against Syngenta. I’m co-counseling with some lawyers from Texas and we currently represent thirty thousand individual farmers against Syngenta, and some grain elevators. There is a federal MDL [consolidated “Multidistrict Litigation”] in Kansas City. It turns out that Syngenta’s US headquarters for its seed business is here in Minneapolis. We wanted to be in state court and we filed all of our cases in state court. They couldn’t remove on diversity. You may have run into this. I don’t even remember this from law school but, there’s a little clause in § 1331 that says one of the basis for removal if it involves the common law of foreign relations; have you ever run into that?
ML Interviewer: No.
Lew Remele: I hadn’t either. In 2011, 2012 Syngenta developed the next best, greatest GMO [Genetically Modified Organism] corn seed, resistant to drought, disease and insects. They were desperate to get it into the market place to compete with Monsanto. Notwithstanding a number of representations they made to the industry and to various state regulatory agencies, they put their GMO corn into the system knowing that China had not agreed to accept it. In 2013, China’s exports of corn were really growing because of a number of things but, partly because the Chinese middle class has gotten more money. They wanted to improve their diet, like everyone else, and they wanted to eat more meat. China can’t grow enough corn to for all of its internal uses, both for its population and to feed animals.
So they went from like, a 3-4% percent importer, in terms of importing corn in the world to about 15%; a huge part of the export market. In 2013, in November the first cargo ship went over to China with Syngenta GMO corn seed in it, and the Chinese found some of it. So, they turned back that ship and, about four hundred and fifty others. Overnight, the price of corn dropped like, two bucks a bushel, internationally.
As a result of that, there are now just dozens of cases. The argument that Syngenta made to remove the cases into federal court was that because China rejected these shipments, and so that the cases involve the common law of foreign relations.
Of course we thought that was a little silly and, fortunately, and to his credit, the judge down in Kansas, the MDL judge, back in May of this year, remanded all the cases back to Minnesota state court. We applied to the Minnesota Supreme Court to have one judge assigned; the Chief Justice assigned [Hennepin County District Court] Judge [Thomas] Sipkins. So, he’s got all the cases and we’re now just getting going. It’s going to be an interesting case. We’re hoping that, depending on schedules and so forth, we’ll be able to try some bellwether cases by the end of next year, or the beginning of the following year. We’ll see.
ML Interviewer: At the close of my interviews, I often ask people: Climb on your soapbox and say something to the Minnesota bench and bar. What do you have to say to them?
Lew Remele: The reason this is on the top of my mind is because I read it in just the last day or two from MSBA President Mike Unger in the MSBA’s Bench and Bar magazine. I think is really good. It talks about the fact that, we all really do, as lawyers, have an obligation, greater than just the practice to our profession. Because our profession really, at its core, is intended to advocate for certain things. Namely, a fair judicial system, access to justice and, a system that we are going to resolve our disputes in a way that is civilized and consistent, and, hopefully, based on the rule of law. I think people have lost sight of the fact that because we’ve been so maligned as a profession and people have gotten so busy, and the economics of our practice is so difficult, so we’re all constantly dealing with that. That’s a real thing and you can’t ignore it.
We’ve lost sight of the fact that that’s also part of our duties as lawyers. It’s actually, in my view, if you really think about it, and get engaged in it, it’s a really satisfying thing. If you can get involved in an issue that you think is worthwhile, it not only helps from a personal standpoint, you get passionate about it but, it definitely helps the broader system.
I hope that lawyers will start to think a little bit more about that. It’s sort of what we were talking about when we began the interview. Lawyers really don’t get together anymore, in any real fashion. The Bar did serve that purpose but, nowadays, other than the Legal Aid dinner, maybe a couple other events during the year, it’s really hard to get a room of five or six lawyers together where you really do have the ability to kind of talk and exchange ideas and have discussions on some of these larger issues. Unfortunately, most of the time when we are seeing each other, it’s across the table as adversaries or we’re negotiating something, or competing with each other to get a client or to get a piece of business. This is a reality and you can’t change that. That’s not going to change, it’s going to get worse. I don’t think it’ll get any better.
I hope people will start to think about that a little bit, I do.
ML Interviewer: Finally, tell our readers what you when you’re not lawyering?
Lew Remele: I have six grandchildren which are really a lot of fun. I like to play the usual sports. My golf game isn’t very good these days. My tennis game is getting worse as I get older. But, I like to play golf and tennis and other sports. I run. I walk to work, usually. I was a history major in college so I’m still a major reader of history. To me, that’s a real fun thing to do.
[Editor afterword: If you found this interview interesting, check out some others. And Minnesota Litigator has interviewed judges, as well: Retired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief Judge Peter Cahill, Hennepin County Judge Thomas Fraser, Hennepin County Judge Susan Robiner, Hennepin County Judge Kevin Burke.]