• September 22, 2015

TargetAs a junior associate at Big Law some years ago, I coined a term for certain unfulfilling (in fact, excruciating) assignments. I called them “The-Earth-is-Flat Memos.” I used this expression to describe assignments I would get where the outcome of the case was not good for our client and I would be assigned to find favorable legal decisions on a particular issue where none existed (i.e., “Draft me a memo establishing that the earth is flat…”)

“Find me a case standing for the proposition that a plaintiff cannot get punitive damages when actual damages are nominal [“nominal” is how lawyers say “small to nonexistent”],” might be an example. “YES, SIR!” I would dutifully respond. (Not going to happen.) See, e.g., Diversified Water Diversion v. Std. Water Control Sys., No. A07-1828, 2008 Minn. App. Unpub. LEXIS 1087, 2008 WL 4300258 (Minn. App. Sept. 23, 2008), rev. denied (Minn. Dec. 16, 2008). (“Courts have consistently found that it is constitutionally permissible to award reasonable punitive damages even if a plaintiff suffers only a nominal injury”)). (And, when you think about it, the proposition is quite obvious and unavoidable.)

But, given and “Earth-is-Flat Memo” assignment, I would research as best I could and make arguments hoping they would not be dismissed as “absurd.” I’d parse cases and statutes down to post-sub-atomic quantum detail until time and space were too self-enveloped for any light or life to escape. By the end of it, quite often I had banged my head on my desk so hard, I thought my arguments had a chance of winning. (Psychologists call it “cognitive dissonance” when people cannot hold two inconsistent ideas in their heads at the same time so they practice mental gymnastics (or “denial”) to avoid an otherwise unpleasant internal conflict as in, “My job is meaningful and interesting,” and “I am spending weeks making completely stupid arguments that will eventually be rejected if not ridiculed.”)

So I can sympathize with the excellent army of lawyers for Target Corporation — unsurpassed elite special forces — who found their analysis in fighting against class certification characterized by Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) last week like this: “The absurdity of [Target’s] suggestion is evident…” and  “Target parses this statute almost beyond recognition.” I have to confess to some small spark of schadenfreude that it is not just me who finds himself cornered and condemned to unlikely “hail mary passes” or mid-court air balls in the closing seconds of a game or two…

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