• August 27, 2014

Earlier this week, I posted notes from a lunch that I had with retired U.S. District Court Judge James M. Rosenbaum. We had the following (admittedly truncated) exchange:

Do you think lawyers, then, can predict outcomes to their clients? I am frustrated because clients want certainty and the process is extremely uncertain…

I do not agree. Good lawyers advise their clients as to the strengths and weaknesses of their clients’ claims…

The very day of that post, the Minnesota Court of Appeals released an unpublished decision reversing a jury verdict for $1.2 million, punitive damages of $500,000, and reversing an award of attorneys’ fees for the plaintiff, Weiss Capital and Lee D. Weiss (who claimed an additional $427,000 in legal fees and $110,834 in costs). So instead of winning an award totaling somewhere North of $1.7 million, Mr. Weiss would appear to now be facing the liability of the defendants’ attorneys fees (which we can assume are close to $500,000 as plaintiffs’ own fees were).

Talk about mood swings…

It would appear that both sides in the civil lawsuit had good lawyers. The case was tried before Hennepin County State Judge Bruce A. Peterson, who has been a trial judge for 15 years and who enjoys an excellent reputation.

So, here again, is anecdotal evidence of my criticisms of our legal system: its high cost and the very closely related fact of its high degree of uncertainty.

I argue that it is implausible that plaintiffs’ counsel (or defense counsel) foresaw the outcome of this litigation at any time during the several years that the case has been in suit.  Rather, I would suggest that each side thought they were going to win, properly advised their clients of the risk that they could lose, and the clients had sufficient money to put at risk and roll the dice.

Mind you, there are some cases — cases that swing on “what happened” as a matter of fact — where trials and uncertainty are inevitable. A fact-finder must take in all of the evidence and make its best possible decision as to what really happened, as to who is lying. Maybe the system cannot do much about that.

But the Weiss Capital case turned on legal issues such as whether “tort damages” could be recovered “for a breach of contract.” And

the fact that changing the character of Weiss Capital’s investment and failing to pay interest on the investment were separate, independent wrongs does not mean that changing the character of the investment breached a duty that was independent of the parties’ contract.

And the meaning of a “25% return” vs. “25% interest” — that is, matters of law and contract interpretation rather than matters of disputed facts.

I have to wonder if we could not devise greater access in our system to interlocutory appeals (that is, appeals before trial) to avoid the tremendous expense of needless trials when the ultimate outcome is notwithstanding the trial rather than as a result of the trial.

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