Blue Cross v. Wells Fargo and the Challenge of Hybrid Jury/Bench Trials

pay no attention to the man behind the curtain1 300x225 Blue Cross v. Wells Fargo and the Challenge of Hybrid Jury/Bench TrialsUpdate (April 23, 2014): Below is a post from last month reflecting a loss of plaintiff Blue Cross (and others) in a case that Blue Cross, represented by the Twin Cities litigation powerhouse of Robins Kaplan Miller & Ciresi, brought against Wells Fargo Bank.

But, post-trial, U.S. District Court Judge Donovan W. Frank (D. Minn.) held that, in contrast to the jury, the Court would have found that Wells Fargo breached its fiduciary duties owed to the plaintiffs. He continued, however, that the Court was bound by the jury’s conclusion to the contrary (see linked doc, p. 7, ftn. 6).

This is too hard a nut to crack for Minnesota Litigator on a tight deadline, but I can appreciate a sense that the legal system’s integrity and legitimacy, its adherence to the ideal of “truth,” would appear to be in play if one can have a single trial in which (a) a single entity is found to have breached its fiduciary duties owed to plaintiffs, and (b) the same entity is found NOT to have breached its fiduciary duties on the same facts as to the same plaintiffs.

This would seem to be the upshot of accepting both the jury verdict and also the judge’s irreconcilable finding on the same question.

So, where a case is tried before both a judge and a jury and their conclusions conflict, whose truth trumps (or is there a place in our justice system and in our minds for quantum mechanical ambiguity)? (Blue Cross’ argument is here.)

Continue reading

The Rule of Law: It might not always make sense. It just is what it is. Deal with it.


Rubik Cube The Rule of Law: It might not always make sense. It just is what it is. Deal with it.

Photo by Duncan Hull

Update (April 23, 2014): A business (BancInsure) promised to indemnify another business (Avon State Bank), breached the promise, forcing Avon to sue BancInsure. Avon cannot recover its legal fees in its action to get BancInsure to indemnify it.

Might not make sense. But the law is the law. Too bad for Avon State Bank.

On the subject of “prejudgment interest,” the law provides:

An insured who prevails in any claim against an insurer based on the insurer’s breach or repudiation of, or failure to fulfill, a duty to provide services or make payments is entitled to recover ten percent per annum interest on monetary amounts due under the insurance policy….[The interest is] calculated from the date the request for payment of th[e] benefits was made to the insurer.

This makes no sense in the Avon State Bank v. BancInsure case. Avon had not actually paid the settlement or defense costs for which it sought indemnification at that time. Why should it be entitled to prejudgment interest going back to the time that it made its “request for payment”?

Might not make sense. But the law is the law. Too bad for BancInsure.

Sr. U.S. District Court Judge Richard H. Kyle Sr.’s (D. Minn.) sets it out with his signature succinctness here.

Continue reading

LegalMatch: How Stupid Are We? How Desperate Are We?

Wily Coyote Burnt 300x194 LegalMatch: How Stupid Are We? How Desperate Are We?As the legal profession in the United States and so many areas of our economy experience change and disruption the likes of which it has not seen for 50 years (if not 100 years), lawyers are a dwindling species and we must sit and watch as many of our peers cannot find jobs, as others take sharp pay cuts, as many lose long-held power and prestige, and as the profession, as a whole, is making a lot less money than it has for many decades. (Previous Minnesota Litigator posts on the subject, which I encourage you to file under “Tell Me Something I DON’T Know,” are here.)

Under the circumstances, it is not surprising, though it is sad, that the legal market market (no, that is not a typo) — that is, the folks who sell things to lawyers who sell legal services to clients (mostly, unsurprisingly, the sale of “marketing” or “leads” to lawyers) — includes (maybe exclusively???) a craven and ignominious lot, folks who shamelessly sell false hope to the hopeless.

Continue reading

Ventura v. Estate of Kyle: All Signs Point to June 30 Start of Trial

I predicted this case might go to trial in September, 2012.

The defamation lawsuit brought by former Minnesota Governor, Jesse “The Body” Ventura, has been rich fodder for Minnesota Litigator posts for a number of years now. I have questioned or challenged the strategies and conduct of both sides’ lawyers from time to time and, at times, I admit to having spoken quite freely of my lack of esteem for the plaintiff, Governor Ventura, himself (regardless of the truth or falsity of Mr. Kyle’s claims).

(I have not been so critical of the defendant-decedent, Chris Kyle, because I have no knowledge of the man and I have tried to reserve judgment (admittedly maybe not hard enough from time to time) as to who lied about whatever happened or did not happen in Coronado at McP’s in October, 2006. And “de mortuis nil nisi bonum.” But I certainly think there is plenty of reason to question the truth of his account.)

But, as the trial papers in this hard-fought battle come pounding into the Court this week (some are here, here, here, here), there is absolutely no doubt that Jesse Ventura and his lawyers are absolutely convinced in their case.

Maybe a jury will agree with them? The next question is whether they will buy that Gov. Ventura’s reputation was damaged or whether his reputation has accumulated so many nicks, dents, and scratches over the years that more recent ones just don’t make a difference.

More on the joys of trial prep…

Hafrsfjord near Stavanger 300x225 More on the joys of trial prep...

Hafrsfjord near Stavanger (Norway)

After the jump, I discuss another recent example why I have a rule of never going to trial by myself from the case of Ewald v. Royal Norwegian Embassy.

I have previously analogized trial to “‘whac-a-mole’ on steroids,” by which I mean that trial lawyers face literally simultaneous demands (e.g., listen to witness testifying, prepare cross examination, listen to whispering client, analyze opposing counsel’s questions for potential objections) and near simultaneous demands (e.g., review latest drafts of jury instructions, verdict forms, deal with surprise motion, draft surprise motion, make sure witnesses will show up at the right time, etc, etc, etc).

Continue reading