Update #2 (1/12/2015): Check out a trial management order for a very big trial scheduled for March in U.S. District Court (D. Minn.) before U.S. District Court Judge Donovan W. Frank.
There are quite a few interesting aspects of the order for Minnesota civil litigators but here are a few things that come to my attention. First, trial is scheduled to be 24 trial days. Plaintiff has five lawyers on record from the Minneapolis law firm of Greene Espel. Let’s say their average billing rate is $300/hour (which is a low estimate) and that trial is 9 hours/day (which, again, is a low estimate). That is $324,000 of legal fees for trial alone (not pretrial work), and for one side, the plaintiff. It looks like Defendant Wells Fargo might have twice that many lawyers between Minnesota counsel, Zelle Hofmann Voelbel & Mason LLP, and lead counsel from the L.A. office of Munger Tolles & Olson LLP (where the hourly rate is probably far higher than our local rates).
Second, for a trial scheduled in March, pretrial filings (witness lists, and so on)) were due this past Friday (January 9). (Some are discussed below.) That seems quite premature to me. I think we can safely predict there will be several amended filings between now and trial as the trial teams ratchet up the planning and home in on the core aspects of the case.
Third, there’s this in the trial management order: “The parties and their counsel, and anyone affiliated therewith, directly or indirectly, shall refrain from making any effort to determine the identity of prospective jurors.” That’s a puzzling prohibition to me and maybe it is also a bit vague? I had a trial recently and, during voir dire (questions to potential jurors to weed out potential bias), defense counsel scoured social media of all of the potential jurors after the venire (the pool from which jurors would be chosen) was identified. Is that an “effort to determine the identity of prospective jurors”? (By the way, plaintiff’s counsel undertook no such efforts to dig into the semi-private lives of potential jurors and won a $10 million verdict. As with so much of trial work, we have no way of determining whether defense counsel’s strategy (or plaintiff’s counsel’s lack of strategy) hurt them, helped them, or served no point.)
And here are plaintiff’s proposed voir dire questions. There is an art to voir dire. One wants to get a feel for the potential jurors. One does not want to alienate them or embarrass them. Query whether asking potential jurors, “Have you ever felt you were taken advantage of in a business situation?” is a question that they will want to answer. On the other hand, it is very often the judge rather than the lawyers who actually pose the questions, which shields the lawyers a bit from blow-back. Also, sometimes lawyers ask questions NOT to hear the answer but to PRIME the jurors minds — to get them cogitating about a case theme…(Here are defendant’s proposed voir dire questions.)
And here is a motion in limine by Wells Fargo to exclude “news articles written in hindsight.” I know these lawyers were overwhelmed with pretrial filings this past week (and for weeks before this past week) but I think this caption needed more work.
Wells Fargo seeks to bar “often hindsight-laden accounts of the state of the home mortgage loan crisis…”
Insert rhetorical throat-clearing here. Continue reading, imagining voice in a snarky tone: News is generally about things that have already happened (that is, news is, pretty much by definition, “written in hindsight”). Indeed, many would suggest that this attribute of “news” makes it more, not less, reliable, than news about things that did not happen or that have not yet happened. May I suggest an alternative: “Motion to Preclude Plaintiffs From Introducing Inaccurate, Unreliable, and Inflammatory So-Called ‘News Stories'”?
Update (12/12/2014): Last week, U.S. District Court Judge Donovan W. Frank (D. Minn.) ordered the final pretrial settlement conference for the Securian v. Wells Fargo case to occur on January 14, 2015. The jury trial is currently scheduled to start on March 16, 2015. The sequelae of banks’ insane reckless overly optimistic investment practices are still working their way through our legal system. Securian Financial Group filed this lawsuit in October, 2011. Remember? That was back when there was the civil war in Libya and former Beatle Sir Paul McCartney married American heiress Nancy Shevell at a ceremony in London.
Original post (12/3/2013): A Wells Fargo executive described a particular investment opportunity for some Wells Fargo clients as “free money.” That opportunity was Wells Fargo’s “Securities Lending Program” (or “SLP”), a program that heavily invested in “structured investment vehicles (or “SIVs”).
In March 2008, however, Wells Fargo Chief Executive Officer John Stumpf allegedly said publicly that Wells Fargo did not invest in SIVs because they were “nonsense” and enormously risky. At that time, the evidence suggests that Wells Fargo’s own SLP was “heavily invested in SIVs” (a.k.a., “enormously risky nonsense” (?)).
Reviewing Plaintiff’s motion to amend its complaint to add a claim for punitive damages, U.S. Mag. Judge Jeanne J. Graham (D. Minn.) found that preliminary evidence suggested that Wells Fargo “went out of its way to make determinations that benefitted or sheltered its own coffers at the expense of the SLP participants.” (Grammar Nazi Aside: benefited vs. benefitted, see here.)
Wells Fargo’s response to the motion to amend was filed under seal, so we are left to our imagination. However, as discussed previously on Minnesota Litigator, amending a complaint to add a claim for punitive damages under Minnesota law is a twisted analysis in which Well’s Fargo was barred from presenting any of its own evidence.
And note that Judge Graham’s order mentions that a few juries have already given a hard look at the punitive damages claims against Wells Fargo and rejected them.
In sum, congratulations to Plaintiffs and their counsel for the win on the motion. These are hard motions to win. But be careful not to confuse what might be a transient tactical advantage with an ultimate win.