• August 13, 2015
Photo by Yasser Alghofily

Photo by Yasser Alghofily

Updated post (August 13, 2015): Below I noted an arbitration win for MJ Solutions GmbH against Arkwright Advanced Coating, a case of Winthrop & Weinstine lawyer, Dave Davenport.

Davenport’s adversary, counsel for Arkwright Advanced Coating recently went back to U.S. District Court (Sr. Judge David S. Doty (D. Minn.)) in the hopes of undoing the damage. They brought the argument as a “motion to amend the judgment, vacate the injunction, or clarify the injunction.” The judge pointed out that this is only done to “correct[] manifest errors of law or fact or to present newly discovered evidence” not to get the “second bite at the apple.”

But, at least as Judge Doty saw it, Arkwright’s position was simply, “You got it wrong in your earlier decision.”

[T]he court considers Arkwright’s motion to be nothing more than an attempt to relitigate issues previously raised, albeit with less force and detail than now presented. …Arkwright …seeks only to rehash arguments already made and lost, or to raise new arguments that could have been raised before.

Congratulations (again) to Dave Davenport and this team at Winthrop & Weinstine!

But putting the details of this particular case (and this particular decision) to one side, how does one go about trying to gently nudge a Judge to “reverse herself,” to change her mind on a decision she has already made?

Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

A while back, I had occasion to pose this question to a judge. His advice was to proceed with caution. Of course, it very much depends on the particular judge. Some are thin-skinned, neurotic, and insecure. Others are grown-ups who can hear criticism without reacting in indignation or resentment. You have to simply use your judgment in dealing with judges. But, I was advised, try as best you can to own the error yourself (as in, “I am very sorry for not clearly articulating the holding in Doe v. Coe and applying that decision to our case. If I had done a better job, the Court would have ruled otherwise…”).  But, really, frequently, there is no easy way to tell another person that his earlier decision was “just wrong.” (And many times, of course, it is the lawyer seeking reconsideration who is “just wrong” or “in denial.”)

Original post (June 8, 2015) (under the headline, “Notch Another Arbitration Win for Winthrop & Weinstine’s Dave Davenport”): Some time ago, Minnesota Litigator covered the sticky situation of Plaintiff Jeff Davies’ $10 million arbitration award that went up in smoke before the Minnesota Court of Appeals (which got involved in the confirmation of the arbitration award). The Court of Appeals held that the arbitration was filed too late and it threw out the $10 million award (and the Minnesota Supreme Court rejected the petition for review).

Davies’ misfortune turned into his lawyers’ headache. Maybe there was a basis for criticizing the lawyers at Winthrop & Weinstine as to the timing of the arbitration action and maybe not. (The meta-fight between them has either been settled or is in arbitration, it seems.) But, so far as I can tell, no one finds fault with Dave Davenport’s winning his client, Jeff Davies, the $10 million arbitration award.

And, recently, Davenport has done it again. The linked order is Sr. U.S. District Court Judge David S. Doty’s confirmation of Davenport’s client’s arbitration award.

A few added things to note: (1) the arbitrator was the widely-recognized and distinguished Minneapolis lawyer, Cliff Greene, and (2) as shown in the linked order, clients need to appreciate that, in arbitration, there is effectively very very little prospect for reversal on appeal (notwithstanding the extraordinarily uncommon and dumbfounding reversal of fortune in the Davies case).

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