For our second profile of an interesting Minnesota trial lawyer (our first, Elliot Olsen, can be found here), we had the chance to sit down recently with Jim Behrenbrinker to talk about his diverse practice and the big excessive force/wrongful death claim he brought against the City of Minneapolis. Behrenbrinker was formerly at Robins Kaplan Miller & Ciresi L.L.P., but has been on his own practicing plaintiff’s personal injury, criminal defense, and small business employment defense for the past 10 years. He was also honored by Minnesota Lawyer as an Attorney of the Year in 2010.
Check out our conversation below. He talked about being a federal judicial clerk, his first real courtroom experience representing the indigent, his $2.1 million wrongful death verdict against the City of Minneapolis, his unexpected big referral source, and his advice for young lawyers.
What was your first job out of law school?
I graduated from William Mitchell in 1987 and then clerked for Judge James Rosenbaum from 1987-1989, it was the best job I have ever had. Judge Rosenbaum was a very good boss. He was extremely generous with his staff and clerks. He made sure his clerks had a very positive, learning experience. The work of being a law clerk for a U.S. District Judge provided tremendous opportunities to watch really good lawyers in trial and in motion practice.
After I was done clerking, I initially went to Leonard Street & Deinard but got most of my experience, before going out on my own, at Robins Kaplan Miller & Ciresi.
How did you get experience as a young attorney?
One of the benefits of being a federal law clerk was when you completed your clerkship there was an avenue open for clerks if you were interested in doing any criminal defense work in the federal courts, you were eligible almost immediately to be accepted onto the public defender conflicts panel, or Criminal Justice Act cases. In CJA cases, you represent indigent individuals who have been charged with felonies in federal court after you get appointed by the Court. I’ve been doing that since 1989 and I’ve continued to do that kind of work whenever they call me.
I started out doing criminal defense on the CJA panel because it allowed me to get into court. As a young associate in a law firm, the only way I would get into court in civil matters was if I was carrying a box of documents for someone who was higher on the food chain. It was a great experience and the Court appreciates it.
Talk about your current practice.
About 40% of my practice is devoted to all types of plaintiff personal injury. I do everything from automobile bang-up cases to products liability and medical malpractice cases, all on a contingency basis.
About 20% of my practice is hourly work for small businesses doing employment law and discrimination defense work. My hourly fee is probably 50-60% of what it would be in a larger firm. But when you’re a small business, you still have to be cognizant of how you’re staffing the case, how you’re working the case and how you’re billing your time.
Because I mostly represent individuals on a contingent fee basis, I have to be extremely efficient, have to be cognizant of your overhead, how you’re billing your time and how you’re managing the case.
The differences between working on a per hour basis versus on a contingency.
When you’re working in a large law firm, you tend to be assigned to cases that are worth a lot more money, in the sense that, if you’re on the defense side, the risk is pretty significant, and if you’re on the plaintiff’s side, the reward is significant. So the way those kinds of cases are staffed are significantly different than they are at a small firm or a boutique firm. The nature of the practice, from a billing standpoint, changes based on how much risk there is in a particular case.
You had a pretty big case a few years ago, Felder v. City of Minneapolis, talk about the claims in that case.
Dominic Felder was experiencing a nervous breakdown. He was delusional, paranoid, hearing voices and was having a disconnect while he was at home. His significant other called 9-1-1 for help. He was outside and asked the neighbors to use the phone because he thought people were trying to kill him. Dominic’s girlfriend asked the neighbors to ignore him because she had called for help.
At about the same time, the Minneapolis Police rolled up onto the scene. Felder walked up to the officers and said that he needed to talk to him, and they said they needed to talk to him as well. The police said that they needed to pat Felder down and Dominic backed up a few feet and lifted up his sweater showing his bare midrift and basically said words to the effect of “I ain’t got nothin’ man.” Then Dominic started jogging away from the officers, about 100 feet, to the bus stop down Bloomington Avenue. According to the police, their story was that they got into their squad and followed him down, parked their squad on the wrong side of the street – facing south in the northbound lane – got out of the squad with their guns drawn and got into a physical altercation with Mr. Felder. The police then said that Dominic grabbed one of the officer’s guns so the officer shot him.
When you got the case, what did you ask for first?
First thing we asked for was copies of the police dash-cam videos. The police said that they never turned on their emergency flashers so there was no dash-cam video. That didn’t sound right to me. If you’re driving down the street at 11:30 at night in south Minneapolis on the wrong side of the road, and you get out of your squad and you don’t turn on your emergency lights, which would activate your dash-cam video and audio? That seemed odd to me.
Talk about the experts that you used.
We retained a ballistics and forensics expert in Texas, a guy named Richard Ernest, and asked him, based on the officers’ stories and based on the forensics do a shooting reconstruction because there were no eye witnesses and no one to contest the officers’ testimony. Because of that, unless the science showed that the officers’ version of what happened, could not have happened, the case wasn’t going to go anywhere. The deeper we got into it, the more it became apparent that what the officers’ were saying couldn’t have happened from a forensic standpoint.
We also had an excessive force expert, a former FBI agent from Georgia. He testified that, based on the science, it could not have happened as they said and therefore it was excessive and was not a justified homicide.
What did the experts find?
The officer said that when he was firing the gun, Mr. Felder was holding onto the barrel of the gun with both hands. What the expert found was that if a gentleman has both hands wrapped around the barrel of a gun and the gun is fired, you should have gunshot residue on his sleeves, on his hands or on his clothes. There was none. When the gunshot is so close, and the officer testified that it was within inches, then there should have been stippling, gunshot residue, soot, and maybe even powder burns on his clothing. There was none.
The expert found and testified that, based on the distance testing and trajectory of the bullets, more likely than not, Mr. Felder was laying on his back on the ground and the officers were standing over him.
How did you find your experts?
How did the jury find?
The jury awarded $1.8 million, a little over $1 million in compensatory damages and $800,000 in punitive damages and Judge Doty awarded close to $400,000 in attorneys’ fees. The City was on the verge of filing an appeal but then I think one of the attorneys for the City may have advised that the likelihood of getting everything reversed was remote. They decided that they were going to pay the judgment and the costs. So actually the case was settled. When we settled, part of the consideration was that we would dismiss our companion civil rights action in State court.
How did you get the case?
Katie Felder (Dominic’s mother and the plaintiff in the case) actually found me.
Do you know how she got your name?
Actually, I do. She looked me up in the Yellow Pages. She had a good feeling about me.
Do you have any advice to younger lawyers?
As a general principle, I think a young lawyer really needs to know who they are, in terms of what is their passion. What’s going to help them get up every morning and go to their job. No matter if you work in a large firm, for the government, for a boutique firm, for a small firm, or as a sole practitioner, the one thing they all have in common is that you’ll have to work very hard. You’ll have to expend a lot of time doing work. If you know what your passion is and it doesn’t seem like “work” then it’s a lot easier.
My advice is get your first job, try to find someone in that law firm that can mentor you, learn as much as you can and don’t be afraid to move. Don’t be afraid to make a lateral. Don’t feel that once you get that first job and you’re stuck there. People can make moves and people should move until they find that spot where they feel they are contributing, they are having a positive effect for their clients and they’re having fun.
What has been that difference for you?
I really love what I’m doing. I wouldn’t change what I’m doing for the world. The nature of the work, the substantive area and the clients are great. I’ve represented people on the plaintiff’s side and on the criminal defense side, where, at the end of the case, they looked me in the eye and shook my hand or hugged me and said, “Thank you.” You can see how sincere that is and that means a lot to me.