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.

Environmental Lawyer, Thad Lightfoot, on an Upcoming Minnesota Supreme Court Environmental Case

cow 174822 640 300x240 Environmental Lawyer, Thad Lightfoot, on an Upcoming Minnesota Supreme Court Environmental Case

I find myself stymied by multiple trash cans in cafeterias, asking me to separate “trash” from “recyclables.” As such, I figure I have to renounce any claim to any background or experience in environmental law. For environmental law, call someone else, like Thad Lightfoot. Few, if any, Minnesota lawyers have the depth of experience, generosity, kindness, and wisdom of environmental lawyer, Thad Lightfoot.

So I was delighted when Thad agreed to share his comments and thoughts with Minnesota Litigator on a recent Minnesota Court of Appeals decision that the Minnesota Supreme Court has decided to review (In The Matter of Reichmann Land & Cattle, LLP).

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Ewald v. Royal Norwegian Embassy: Anatomy of a Gender Discrimination Claim

Hafrsfjord near Stavanger 150x150 Ewald v. Royal Norwegian Embassy: Anatomy of a Gender Discrimination Claim

Hafrsfjord near Stavanger (Norway)

Update (August 22, 2014): The two sides’ proposed “Findings of Fact and Conclusions of Law” in Ewald v. Royal Norwegian Embassy alleged sex discrimination case are here (130 pages) and here (95 pages). These documents shed light on why American justice is so extremely expensive. The effort and expertise in creating these records is enormous. The case goes back to 2011. Mining and presenting the evidence took years of work. And the work continues…

We often decry the great cost of our civil justice system. A justice system that cannot function for cases in which $100,000 is at stake (because the cost of the system will exceed the amount at stake) is a failure. We should be able to do better.

But what we rarely appreciate about our justice system is that the system is so expensive because it is so thorough and so focused on fairness.

The issues in the Ewald case seem simultaneously simple and complicated: a man and a woman are hired to do similar jobs, but they are treated differently, and they are paid differently. The question is why the disparity between $70,000 for the woman and $100,000 for the man? Is it because the jobs, while similar, were not identical and the man’s job simply commanded a higher salary? Or was this an instance of sex discrimination? And underneath this surface layer of the lawsuit lay many more layers. Over time, it seems that the relationship between Ewald, the employee claiming gender discrimination, and the Norwegian consulate, the employer, soured badly. Was this because Ewald rightfully confronted her employer’s gender discrimination and the employer, in response, began to antagonize/demonize/dislike her? Or, on the other hand, was there simply a “bad fit,” an employee insisting on benefits outside of the employer’s budget and an employer’s stingy resentment that the employee would not simply take the deal she was offered?

U.S. District Court Juge Susan R. Nelson (D. Minn.) will have the challenge of sorting this all out. She will have the thorough work of excellent advocates to help her, even if they reach diametrically opposite results.

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