• December 18, 2019
Photo by Jonathan Rotondo-McCord

One of the most nauseating parts of the life of a trial lawyer, in this trial lawyer’s opinion, is the issue of waiver as applied to the work of the trial lawyer (as distinguished from waiver in other contexts like contractual waiver).

To have a Court of Appeal hold that one’s argument may or may not have merit but is barred due to the lawyer’s failure to raise the issue before the trial court can be sickening (if you’re the lawyer).

(Unhappy/disappointed clients often latch onto to arguments that are lost due to waiver as bases for legal malpractice claims; more often than not, the circumstances do not equate to viable malpractice claims. Why not? Read here (and focus on “causation”)).

Tony Flattum ran a storm restoration company. Brian Jovan worked for Mr. Flattum. Mr. Flattum ran into problems with the Minnesota Department of Labor and Industry. He had three consent orders entered against him. So Mr. Flattum and Mr. Jovan agreed to start a new business, Pro Tech, of which Mr. Jovan would be the sole owner and Mr. Flattum would be an employee entitled to have of the new company’s profits…until Mr. Jovan fired Mr. Flattum. Then, according to Mr. Flattum, Mr. Jovan did not honor the 50/50 profit-split deal.

A jury awared Mr. Flattum $734,141.

From the look of it, Mr. Jovan seems to have held back legal arguments until his appeal; that did not turn out well for him.

Mr. Jovan argued that a finding of personal liability against him (rather than against the company) was wrong; he argued for an extension of Minnesota “promoter liability law.” Not only is the argument a stretch, but it was not raised until after trial.

Mr. Jovan also attacked Mr. Flattum’s expert, but, again, failed to object to the foundational reliability of the expert’s opinion before trial or at trial.

Even if he hadn’t waived the challenge, the Court of Appeals went on, (here at pp. 9-13), the attack failed.

The practice pointer is obvious (though sometimes impossible to heed): raise it or lose it.

The advice is impossible to heed when the trial lawyer simply had not thought of the argument until it was too late to raise it before the trial court.

On the other hand, sometimes the practice pointer is overlooked or ignored because trial lawyers are too focused on bringing their own case, telling their own story, rather than laying the groundwork for the appeal. This is a human tendency: “positive thinking.”

Trial court judges don’t help. They often rush lawyers, particularly on pretrial evidentiary rulings (which hold up the start of trial) or near the close of trial (in connection with jury instructions or verdict forms) (which hold up getting the case to the jury). Judges seem to invest considerable energy in “controlling the courtroom;” trial lawyers sometimes need to push back, making and preserving arguments even if the judges would much prefer to “move things along.”

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