Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

Update (May 17, 2013):  Mark Steffenson argued before the Minnesota Supreme Court for appellant Custom Conveyor Corporation, the issue being the trial court’s denial of CCC’s request to conduct trial depositions in advance of trial.  “There are occasions when the unfortunate, the unforeseen happens. A good example is what happened here….”  (A witness at trial got ill.  Some testimony was taken by trial deposition.)

Steffenson takes the position that a party can take a trial deposition at any time without leave of court.  Scheduling orders, Steffenson argues, play no part in trial depositions.  If another party has a problem with an 11th hour trial deposition, the burden should be on this party to come to court and move for a protective order or move to quash.

Shouldn’t the Minnesota Supreme Court apply a “just cause” burden on the party seeking discovery outside the discovery period?

Others on the Court (Justice G. Barry Anderson), with personal injury experience, where “late-in-the-process” depositions of medical experts, for example, are taken in the days or weeks before trial. This is commonplace.  Can it really be that an injured plaintiff MUST go to court to get permission to take such an expert trial deposition (of his own expert)?

Paul Shoemaker argued for respondent T/C Monorail.  Shoemaker emphasized that the Nevada witnesses never had agreed to testify in Minnesota.  Shoemaker emphasized that there has been no offer of proof as to what testimony they would have offered.

This looks to be a close case with some on the Court interested in respecting trial court’s control over its docket and others with a greater concern for pragmatic considerations such as pretrial depositions for experts who, often, simply cannot be available on call over weeks or months of trial.

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Boot Photograph by Ian Britton

Yeah, you keep lyin’ when you oughta be truthin’ And you keep losing when you oughta not bet. You keep samin’ when you oughta be changin’… Now, what’s right is right but you ain’t been right yet These boots are made for walking And that’s just what they’ll do. One of these days these boots are gonna walk all over you…

It was 1966 when Frank Sinatra’s daughter, Nancy Sinatra, went to the top of the charts with this angry screed/footwear product placement (written and produced by Lee Hazlewood).

Fast forward to this week, and we note a complaint, originally filed in Minnesota State court but removed to U.S. District Court the gist of which that a boot manufacturer has managed to make and sell a boot that is so bad that, according to the plaintiff, it is not made for walking and cannot be sold.

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If Avvo were stock and if you owned it and if I were your financial advisor, I would be screaming at you to dump that stock.  I would let you go as a client if you did not take my advice.

In my view, Avvo and many similar on-line lawyer referral services are 21-century “runners.”  (A “runner” is an old term for a non-lawyer working on behalf of lawyers to solicit clients in ways that are prohibited by ethics rules for the lawyers themselves.  (Eric Turkewitz nails it here.))

Why am I so bearish on Avvo in particular?  Do I have inside knowledge of the business’ EBITDA, its business model, cash flow, etc.?  Is it out of some kind of moral indignation similar to divesting in Apartheid-related stocks?

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West Side Grocery, St. Paul (Google Street View)

The district court may have been accurate in treating A&M Market’s hard-edged business tactics as dirty, so to speak, but they were not unclean.

So held the Minnesota Court of Appeals this week in a battle over ownership of a corner grocery market in St. Paul (in an unpublished decision).

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Judge and Ye Shall Be Judged (cf. Gospel of St. Matthew, 7:1)

The severe punishment of one Minnesota judge might be welcome news for Minnesota individuals and businesses in that the judicial system is shown policing its own.

The punishment might also be welcome news to other Minnesota tax court judges as the recommended discipline for Tax Court Chief Judge George W. Perez was, in part, it seems, due to his tendency to shovel work from his inbox to others on the tax court.

The Board of Judicial Standards lowered the boom on Tax Court Chief Judge George W. Perez late last week, holding that “It is improper to fail to make timely decisions and to falsely certify that these decisions were timely.”

As for the punishment,

We think that Judge Perez’s violations, involving improper conduct over a protracted period of time and involving multiple false certifications, are more severe than those in [the recent case against Hennepin County Judge Patricia Kerr] Karasov, and we recommend accordingly.

Minn. Stat. § 271.20 requires that cases be decided within three months of submission. Judge Perez failed to do that in a pattern that existed over many years. He falsely certified his compliance with the statute over those years. These are serious matters, deserving of serious sanction.

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In the famous 1971 criminal prosecution of Fielding Melisch for treason,  the leftist revolutionary represented himself pro se and was torn apart by his own prosecution of himself.  It was a forensic tour de farce caught on film.  It was matched moments later by Melisch’s withering cross-examination of the prosecution’s key witness when Melisch was bound and gagged.

Seriously, the challenges and perils of a trial lawyer who is also a witness to the underlying dispute is self-evident.  On the other hand, legal disputes about legal disputes are obviously common.  I am not just talking about cases of professional malpractice.  There are settlement negotiations that “blow up.”  There are other kinds of negotiations involving lawyers that end up in court.  The list of scenarios where the lawyer’s role is not strictly confined to an after-the-fact advocate is endless.

While it should be obvious that a trial lawyer cannot normally be a witness and the trial lawyer at the same time (see Minn. R. Prof. Conduct 3.7), where do we draw the line at the margins?

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