Message to Larger Law Firms About Inexperienced Litigation Associates: “Call off the dogs.”

Military dog barking 300x200 Message to Larger Law Firms About Inexperienced Litigation Associates: Call off the dogs.If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

BigLaw: I am talking to you. Recently, I reunited with an old lawyer friend who shared an ugly story with me.  He was adverse to a junior lawyer at an excellent local law firm (a lawyer whom we will call “Fido”) in a simple dispute over a loan default.

My friend (whom we will call Creditor’s Counsel) called Fido to tell Fido that Fido’s client, the debtor, had triggered another event of default under the loan agreement. As a courtesy, Creditor’s Counsel was calling to let Fido know that the creditor, through his lawyer, would be sending a formal “Notice of Default,” as to to the latest default, as required under the loan documents.

This should have been a very short telephone call without any consequences. This was not the case.

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The Loose and Uncertain Idea of “Unjust Enrichment” under Minnesota Law

Update (August 26, 2014):  Veterinarian Terrance Rapacz does not appear to have had a very good business, but he did have a very good friend, John Sluck.

With very little documentation, Sluck agreed to help Rapacz out in Rapacz’s failing business to the tune of more than $250,000.  Then, sadly, Mr. Sluck died. And then, sadly for Dr. Rapacz, Mr. Sluck’s widow sued Rapacz for repayment of Mr. Sluck’s generous loans. There was no contract, really. The question is whether the court should intervene and order Mr. Rapacz to pay up because, otherwise, he would be “unjustly enriched.”

The case is noteworthy as yet another Minnesota case in which it is clear that the law on “unjust enrichment” is unclear.

It would be unjust for Rapacz to ‘evade repayment’ if he is able to repay the funds or if he has unlawfully or immorally acted to undermine his ability to do so. But it would not be unjust for Rapacz to retain the loaned funds if he remains unable to repay them.

Is this a correct decision? On the one hand, it may appeal in that it seems fair. On the other hand, I wonder if this sets up a good rule in general. Maybe we should devise rules so that the John Slucks of the world recognize and adhere to the need for meaningful documentation of financial transactions, even between friends, or otherwise bear the risk?

Also, the Court of Appeals’ unpublished decision raises a question or two. For example, the court says, “it would not be unjust for Rapacz to retain the loaned funds if he remains unable to repay them…” What if he is able to repay them partially? What if he is able to repay them two years from now but not today?

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The Wisdom of 45+ Years of Lawyering and Judging: A Chat with Retired U.S. District Court Judge James M. Rosenbaum (D. Minn.)

1rosenbaum0622 297x300 The Wisdom of 45+ Years of Lawyering and Judging: A Chat with Retired U.S. District Court Judge James M. Rosenbaum (D. Minn.)

Photo by Glenn Stubbe, Star Tribune

I had the good fortune of being able to pepper Judge James Michael Rosenbaum with questions over lunch recently. Given the depth and span of Judge Rosenbaum’s Minnesota legal career and my interest in Minnesota civil litigation, this was a Holy Grail opportunity and I am sincerely grateful to Judge Rosenbaum.

To me, maybe the most interesting comments pertain to Judge Rosenbaum’s deep faith in the jury system, which I whole-heartedly share. There are many serious problems with our legal system in my view (none more serious than the cost of civil litigation and its inaccessibility to most people) but it is easier to find fault than find answers. The jury system, on the other hand, is quite an amazing system.

Here’s my Q&A with retired U.S. District Court Judge James M. Rosenbaum (D. Minn.):

How should Minnesotans pick their lawyers? How should a person with no connection to the legal community, who finds himself sued or needing to sue, pick a civil litigation lawyer?

I sat for 25 years as a district judge. Before that I was the U.S. Attorney for the District of Minnesota. It has been a long time since I have been involved in picking lawyers.

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College, Sex, Rape, and Injustice


everclear2 300x225 College, Sex, Rape, and InjusticeUpdate (August 22, 2014): The lawsuit of Doe v. Colleges of St. Benedict and St. John’s University started with splashy drama early this month (emergency motions, dramatic allegations) and ended in sealed silence this week. Good for everyone, I think, that the lawsuit was short-lived (except, the cynic adds, for the trial lawyers and their law firms). Let us hope that the involved institutions and individuals can learn and quickly heal from the underlying incidents and the lawsuit’s resolution (and that the trial lawyers soon find some other massive debacle to resolve with professionalism and ruthless efficiency).

Update (August 12, 2014): What is the difference between a blog and a publication? I recently heard one internet pundit say that the only distinction is that a blog is unedited. I think that is an interesting distinction.

Another related point is that publications often employ people with formal training in journalism, who are aware of and who abide by journalism ethics. (Blogs (this one, anyway) do not.)

I received a request to remove links to court filings in the CSBSJU case, discussed below, that have now been placed under seal. I do not have the time nor the training nor the editorial board to discuss the ramifications of the request and how to best to respond to it. So I have decided to accommodate the request and, if anyone feels I have made the wrong decision (or the right decision?), leave a comment.

Original post (August 6, 2014)A fairly recent New York Times piece recounted the terrible story of a young woman whose allegations of rape at Hobart and William Smith Colleges in Geneva, New York appear to have been handled poorly by the schools.

More recently and closer by, an accused perpetrator from College of St. John’s recounted a terrible story of false allegations of rape (according to the accused) at the Colleges of St. Benedict and St. John’s University in rural Minnesota. [Link to Complaint removed as Court has ordered filings under seal.]

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Marcia Coyle on The Roberts Court

Minnesota Litigator Coyle book cover1 150x150 Marcia Coyle on The Roberts CourtIt’s State Fair time. That means fall is approaching. And the start of a new U.S. Supreme Court term.

Last year’s term ended with some interesting commentary by professors, reporters and bloggers. Experienced Supreme Court attorney and professor Neal Katyal started the discussion.  In an op ed piece in the New York Times, he argued that the Court had come to consensus a surprising amount of the time. The Court agreed unanimously in more than 66% of its cases last term, he said. And that is more than the percentage agreement under many other Chief Justices. Including Justice Warren, Justice Burger and Justice Rehnquist.

Other commentators took issue with Katyal’s analysis. David Paul Kuhn noted that there has been wide fluctuation in the percentage of cases decided by one vote during the Roberts years. So, for example, a low percentage of cases (14%) were decided by one vote in Roberts first year as Chief, and the highest percentage ever decided by one vote in Supreme Court history the following year.

Another professor – Lee Epstein – said that the unanimity on the Court that one year was a function of case selection, not real consensus.

And, several observers have noted that while the Court may agree on the bottom line, there has been sharp disagreement on reasoning.  So the bottom line vote may mask a deeper division. One example: McClullen deciding that a buffer zone around abortion clinics violated the first amendment. Justice Roberts joined four others and decided that the buffer zone statute was a neutral regulation of conduct, not speech, because concerns like congestion and crime were involved.  So the decision avoided deciding the hard issues.

Different reasoning was also used to reach the same result in a 9-0 decision in the Noel Canning case (dealing with the President’s power to make recess appointments).

How did the last Supreme Court term turn out?  How did that compare to prior years? What does that mean for the term ahead?  Marcia Coyle, upcoming speaker at the Appellate Practice Council lunch on August 26, will have thoughts on all these things. She is a close observer of the Court for the National Law Journal and PBS Newshour.

And go here to register for the lunch on Tuesday, August 26.