Minnesota Lawyer Blog

The Minnesota Lawyer blog staff would like to thank each and every one of our readers for visting us in 2007. We wish you all a happy and safe New Year!

Although completely unscientific, here are my picks for the "Top 10" Minnesota legal news stories of 2007. Even a cursory glance demonstrates that it has been a very interesting year for legal news here in the Gopher State. We at Minnesota Lawyer have enjoyed keeping you up-to-date with our newspaper, blog and website – and look forward to bringing you even more valuable information in 2008. In the meantime, have a happy and safe New Year.

Thank you to everyone who submitted nominations for our Attorneys of the Year awards celebration.

Your response has been the best yet, and while more nominations makes it harder to choose just 15, it reminds us of the outstanding talent, passion and pride here in Minnesota's legal community.

Look for our announcement of this year's Attorneys of the Year honorees in early January.

Thanks again!

Minnesota's seldom-tested shield law has taken a couple of interesting shots in recent weeks.

Earlier this month it was revealed that KMSP reporter Tom Lyden had two months of cell phone records seized by St. Paul police as part of an ongoing investigation into whether a Ramsey County sheriff's deputy leaked private data to Lyden. The data was later determined to be public, and the investigation was dropped after protests from First Amendment advocates.

Then, on Tuesday, the Minnesota Court of Appeals struck down a ruling ordering a reporter to give prosecutors unpublished notes from an interview with a man who shot two police officers before killing himself.

Every first-semester journalism school student is taught the importance of shield laws, but few reporters are ever called on to invoke the law in response to a request that they reveal their sources. Media members in Minnesota are fortunate to be covered by the Minnesota Free Flow of Information Act, which provides a greater level of protection for reporters by requiring that three strict standards are met before disclosure is compelled by the court. The fact that the two recent shield law squabbles went the way of media outlets should be a relief not only to journalists, but to everybody who values transparency and disclosure from government entities.

and thanks for reading us!

The following is Minnesota Lawyer Editor Mark Cohen's column for this week, which we are making available to our blog readers as a special extra. This holiday poem was inspired by the rodent situation at the Hennepin County Government Center. Happy holidays!


‘Twas the day before Christmas and through the courthouse
Not a creature was stirring, except for a mouse
The exterminator won’t arrive ‘til the New Year
So rodents run amok without any fear

The judges don’t let their feet touch the floor
Keeping them suspended eight hours or more
Their quivering clerks look from side to side
Hoping against hope for a piper that’s pied.

Beads of sweat drip from prosecutors’ faces
Fearful defense lawyers keep losing their places
Every bailiff unlatches the safety on his gun
Mice may be small, but they certainly can run.

Suddenly out in the lobby there arises a great clatter
An army of tiny paws start to pitter and patter
Chief Judge Lucy Wieland dashes out in a flash
To go to the Capitol and beg for more cash

Everything is locked tight when she arrives in St. Paul
Nobody’s done much there since the start of last fall
When what to Wieland’s startled eyes should appear
But Tim Pawlenty sporting his gubernatorial hair.

“We need more funding now to save us from mice!”
And to emphasize her point Weiland repeats it twice
Pawlenty gives her a long and sympathetic sigh
Speaking softly, but firmly, as he re-adjusts his tie.

“I want you folks to know that I feel your pain,
But I’m running late for a meeting with John McCain”
Into his car the governor quickly takes flight
Giving a wink and a nod as he drives out of sight.

Wieland walks sadly back to the Capitol lot
Only to find her car’s been towed from its spot
While most workers leave early on Christmas Eve
Tow truck drivers don’t give anyone a reprieve.

The chief judge takes a bus back to her court
She is now near the end of a workday that’s short
She finds the building’s now been completely overrun
Life’s a rat race, and it’s the mice who’ve won.

Wieland pulls out her cell and can be heard to say
“I need a book delivered, that’s right, right away”
And what book does she order? Oh please!
The answer is obvious — “Who Moved My Cheese?”

So the mice will continue to make merry ‘til ‘08
At which point they’ll meet a much darker fate.
Hennepin workers, I’m sorry to make light of your plight
Happy holidays to all, and to all a good night!

Mark A. Cohen can be reached at (612) 584-1531, or by e-mail at mark.cohen@minnlawyer.com. He offers in advance his most fervent apologies to Clement Clarke Moore, who deserves much better for his classic 1822 poem, “A Visit from St. Nicholas.”

An incident reported in the Star Tribune today has me completely flummoxed.

According to the article, two men in Sartell, Minnesota, have been arrested for cutting off a woman’s underwear in a bar, while other patrons laughed and refused to come to her aid. During questioning by police, the two men apparently didn’t deny the incident took place, instead cavalierly stating that the whole thing was just a “joke.”

A joke? What’s funny about holding a woman down over a bar and forcibly tearing her panties off with a pocketknife while she yells for help? What’s the mentality of someone who can commit such a frightening and humiliating act on another person and not feel any remorse at all? And what about the mentality of the people who watched, laughed and refused to help? I hope I’m not the only one who finds this completely distressing.

The scene brings back memories of the bar-room gang rape of Jodie Foster’s character in the 1988 movie, “The Accused,” which was based on a true story that took place in Eastern Massachusetts. That scene certainly wasn’t funny -- and neither is what these men allegedly did to this woman in Sartell.

In addition, like the movie, this incident forces us to contemplate how we think we would act and deal with a crime being committed right in front of us.

“There’s not much that entices about the job. There’s no money in it, no privacy, no big houses, and from an ego standpoint, it does nothing for me.”

-- Justice Clarence Thomas on serving on the U.S. Supreme Court (from the WSJ Law Blog)

You've seen the rest, now pick the best.

Minnesota Lawyer is still accepting nominations for its ninth annual Attorneys of the Year awards celebration. The award honors the achievements of 15 people who have distinguished themselves in 2007 through exemplary work.

Criteria include:
• Procuring a successful result in an important case or business transaction
• Leadership in professional associations
• Participating in newsworthy events in the legal community
• Performing significant public service
• Excellence in providing in-house legal services

Nomination deadline is Friday, Dec. 21.

A dinner celebration honoring the selected attorneys will take place in February, and we've become exceedingly good at throwing a swank affair.

An online nomination form is available here. For questions, please feel free to contact me at michael.krieger@finance-commerce.com or 612-584-1554.

Continuing on today's theme of animal-cruelty cases...

I was talking to my veterinarian last week – with a dog and two cats, I get lots of opportunities – so I decided I’d be the hundredth person that day to ask her what she thought of the Michael Vick verdict. Her response left me gaping.

“I feel sorry for him,” she said.

Excuse me, I said – sorry for him?

“He did some horrible things, but I don’t think he was the mastermind behind the operation at his house,” she continued. “I know this is an easy thing to say about an athlete, but I get the feeling he’s not very bright. Or at least, he seems impressionable – like he has too much money and not enough maturity and he let some people get him involved in this, people who he thought were his friends.”

She went on to say that even with the hideous events Vick was involved in, when she read the last-ditch plea he wrote to the sentencing judge in the case, her heart broke.

“Maybe I’m naïve, but he sounded to me like a little kid who knew he was about to be punished, and felt like he could get out of trouble if he promised never to do it again,” she said.

“If it does anything to stop dog fighting or cruelty to animals, then I’m happy with the sentence. But to see this incredibly gifted person throw it all away like this…that makes me sad. His life is basically over.”

My learned colleague, Michelle Lore, recently posted her thoughts about the case of the young federal auditor who came to town and ripped the head off of a duck in a hotel lobby. We received the following comment to the post, which I thought was interesting enough to pull out and re-post here.

Oh Please! Yes, animal cruelty is wrong, but this case is about an
upstanding guy who got drunk & did something stupid. He lost his federal
job, has to come back to this icebox to defend himself, and has to spend oodles
of dollars on an attorney. People can back-date stock options to the tune of
millions of dollars, rip off investors through "creative" accounting, and steal
people's pensions yet not suffer any consequences. Harm one waterfowl and Katy
bar the door. Let's get our priorities straight.I guess it's okay to kill a duck
with a shotgun and then eat it, but if you do it at a hotel, it's a felony. Is
it wrong? Yes. Should he be a criminal because of it? No. Priorities people,
priorities!

Hmmm. Well, actually I think that it should be a felony to kill a duck with a shotgun in a hotel ...

I have no idea whether the defendant is generally considered "upstanding" or not. I don't think it speaks well of him that the one incident we do know of is tearing a duck's head off -- not something even an inebriated person would typically do. And as for his having to come back to "this icebox" to defend himself, the way around that would have been not to come here and tear the head off a duck in the first place. Pretty simple really. Lots of folks manage to do it.

Personally, I don't have an opinion what the defendant’s sentence should be -- I leave that to the judge who will hear all the facts. However, I can’t help wondering whether the above comment didn’t come from Michael Vick.

It used to be like clockwork. Go grab a bite to eat for lunch, come back to the office and find out how your case did on appeal. Both state appellate courts would release their week's opinions at exactly 1:00 p.m. (Tuesdays for the Court of Appeals, Thursdays for the Supreme Court.)

But, as Minnesota Lawyer reports this week, all that recently changed thanks to those ink-stained wretches who make up the Fourth Estate. (Since journalists don't really use ink now, perhaps I should keyboard-clicking wretches.)

Effective Dec. 11, the appellate courts started releasing the week's opinions at 10:00 a.m., barely giving lawyers time for a cup of coffee and a scone before getting the good or bad news about their case. (The release days stayed the same.)

"It was really a courtesy to the press, so they have a little more time during the day to prepare their story," clerk of the appellate courts Fred Grittner told Minnesota Lawyer.

Meanwhile, appellate lawyers are happy to get the results sooner too. "Once you know [your decision] is coming out, the longer you have to wait, the more painful it is," said Minneapolis attorney Bill Hart.

It's good to see the courts being media-friendly. It will be interesting to see if the media returns the favor by using that time to make the reports on decisions more comprehensive and fair.

After an intensive search spanning a year and a half, the University of Minnesota is on the verge of getting a new law dean.

Provost Thomas Sullivan has named David Wippman as dean of the law school. The Board of Regents still have to sign off, but is expected to. If things go as anticipated, Wippman will start the new post on July 1.

Wippman is currently vice provost for international relations and professor of law at Cornell University. He is a native of Minnesota and attended high school here. After graduation from Yale Law School, he clerked for Chief Judge Wilfred Feinberg of the 2nd U.S. Circuit Court of Appeals. He practiced law in Washington, D.C. from 1983 until joining Cornell Law School’s faculty in 1992. Wippman served in the Clinton administration as a director in the National Security Council’s Office of Multilateral and Humanitarian Affairs from 1998-99.

Wippman holds a bachelor of arts degree summa cum laude from Princeton University, a master’s degree from Yale University and earned his juris doctorate from Yale Law School, where he was editor-in-chief of the Yale Law Journal.

Wippman will be the 10th dean of the law school, which is consistently ranked in the top 20 law schools in the nation. He replaces Alex Johnson, who resigned in 2006. Guy-Uriel E. Charles and Fred L. Morrison have served as interim co-deans.

Poor Alberto Gonzales. First he resigns from his post as U.S. Attorney General under what can only very charitably be referred to as "a cloud." Then, just as things are starting to look up for him and he is selected as the "Lawyer of the Year" by the ABA Journal, he is almost immediately afterward stripped of the title. Oh indignity of indignities!

We blogged about it when the ABA Journal bestowed the title on Gonzales -- speculating at the time that perhaps the editors there had broken into the holiday cheer a little early. The dubious "distinction" came complete with a bizarre list of runners up, which included Stuart "Scooter" Libby and a fictional movie character.

No doubt they knew at the ABA Journal that the selection of Gonzales would inspire controversy. But they also knew a lot of ink would be spilled talking about their choice, and there's no such thing as bad publicity, right? Wrong.

A torrent of nonstop criticism fell on the magazine and the ABA as whole, creating a public relations disaster of seismic proportions. It was soon announced that the "Lawyer of the Year" designation had been changed to "Newsmaker of the Year" to clarify that the title was not intended as an honor. (Hmmm. I don't mean to quibble, but shouldn't that be Legal Newsmaker of the Year?)

So in the end, the ABA Journal got the national exposure it wanted -- it just wasn't all it was cracked up to be. It puts me in mind of one of my favorite Oscar Wilde quotes: "There are only two tragedies in life: one is not getting what one wants; the other is getting it."

'Tis the season for holiday parties, fa, la, la, la, la. It can also be a hard season for getting in touch with folks if you are a legal journalist. And an extremely busy season if you are a lawyer who concentrates his/her practice on DWI cases.

U.S. District Court judge Richard Kyle has awarded $443,707 in legal fees and $15,141 in costs to the lawyers who successfully represented a plaintiff in his excessive-force action against the city of Golden Valley. The plaintiff in the underlying case, Alijuan Hixon, last September was awarded $328,000 in compensatory damages and $450,000 in punitive damages for the treatment he received by Golden Valley police when they were effecting an arrest.

The plaintiff was represented by the Minneapolis law firm of Parker Rosen.

To see the full-text of Kyle's Dec. 13 decision awarding the fee, click here.

Minneapolis attorney Corwin Kruse -- chair of the MSBA’s Animal Law Section -- is taking a bit of beating in the press this week for sending a letter to Ramsey County District Court Judge Michael DeCourcy, encouraging DeCourcy to give the harshest punishment possible to a man accused of ripping the head off a duck at a hotel in St. Paul. (Click here for the Pioneer Press article.)

DeCourcy recused himself from the matter after receiving the letter, stating it “raises the issue of impropriety and is prejudicial to the defendant” since the defendant has not yet pleaded or been found guilty of an animal cruelty charge.

As an animal lover myself, I feel strongly that tearing the head off a tame animal that had come to trust humans is a disgusting, heinous act. If Scott Clark is convicted or pleads guilty to the animal cruelty offense, he should be punished to the fullest extent of the law. Kruse and I are on the same page with respect to that conclusion.

Kruse’s apparent mistake here was his timing. Had he sent the letter after Clark pleaded or was found guilty, none of this hoopla would have occurred.

Kruse is a young lawyer, having graduated from law school just over two years ago. New lawyers are bound to make mistakes. Unfortunately for Kruse, he made his in a public arena in a high-profile case. Fortunately, no real harm was done, a new judge will be assigned to the case and this will blow over.

By all accounts, that was a stunning jury verdict in Hennepin County yesterday.

In case you missed it, a Hennepin County jury awarded a group of 115 Twin Cities dentists $130.6 million in their suit against Massachusetts-based American Dental Partners Inc. That's right, 130.6 million. Holy molars!

According to the story in today's Star Tribune, the dentists had accused the company -- to which they had outsourced most of the administrative side of the business -- of overstepping its legal authority and granting itself grossly excessive fees.The jury agreed, finding the company liable for $88.3 million in compensatory damages, and then also added another $42.3 million in punitive damages. (Click here for more.)

Kudos to the local law firm of Anthony, Ostlund & Baer, which represented the dentists. That's an amazing result both in terms of the sheer amount awarded and in its potentially far-reaching effects on the managed care industry. Hopefully some of those companies that have inserted themselves too much into doctor's patient-care decisions will take heed. I suspect they will. A verdict like that is pretty hard to ignore.

There's a chill in the air, and it's not that Alberta Clipper.

The St. Paul Police Department's recent move to secure a reporter's phone records is much colder.

The police department recently obtained KMSP-TV reporter Tom Lyden's cell phone records after he received a police report — a public document, mind you — from an unnamed source.

Why does this matter? Because Minnesota and several other states have recognized the need to protect confidential sources — via the shield law — as a way to ensure a free and vibrant press. Who would talk to a reporter if they knew a snooping government official could hunt down and punish them?

The Associated Press originally reported that Lyden's phone records were secured through an administrative subpoena, but the Ramsey County Attorney's Office has said it never signed off on such a request.

That leaves a warrant, which unlike an administrative subpoena, requires a judge's signature.

Now, I could write a long-winded treatise on how this situation creates a potentially serious chilling effect on the press. But apparently, decades of case law and legislative action haven't impressed the people involved.

So I've taken a different approach — perhaps this will get through:

I was pleased to hear the ABA Journal has recognized me as a "Lawyer of the Year." Well, sort of, anyway. Among the honorees it lists out are "the lawyer blogger," meaning anyone who is a lawyer who also blogs. And that includes me. (And also my esteemed Minnesota Lawyer colleagues, Barbara Jones and Michelle Lore.)

So who are our fellow honorees for this highly prestigious honor?

Well, at the top of the list is former Attorney General Alberto Gonzales. Alberto Gonzales????? In a subsequent interview, the ABA Journal's publisher, Edward A. Adams, explains the criteria is newsworthiness -- also making the obligatory point that Adolph Hitler and Josef Stalin were both once named "People of the Year" by Time magazine. (Gosh, by that measure, Gonzales comes off looking pretty good.) The ABA "Lawyer of the Year" list also included, among others:

-- Stuart "Scooter" Libby;
-- Monica Goodling;
-- Howard K. Stern (Anna Nicole Smith's lawyer husband); and
-- fictional lawyer Michael Clayton, played by George Clooney in the movie of the same name.

Wasting no time, the magazine goes on to name new Attorney General Michael Mukasey as its 2008 "Lawyer of the Year," notwithstanding the fact that 2008 is still a couple of weeks away.

I can't really find any rhyme or reason for a "Lawyer of the Year" list that would include every single lawyer blogger, Alberto Gonzales, Scooter Libby and a fictional character -- other than perhaps they dipped into the holiday eggnog a little early over at the ABA Journal. In any event, I am looking forward to getting my plaque in the mail.

The U.S. Senate today is considering a bill that would raise the salaries of federal trial court judges by 50 percent, the Wall Street Journal law blog reports. The measure seeks to raise the salaries of the judges from $165,200 to $247,800. (Click here for more.)

Here in Minnesota, we might think that 50 percent seems like a heckuva' raise. However, it's hard to argue that federal judges shouldn't get substantially more than $165,000 when some newly minted law grads are making that at big law firms. I can't imagine it's easy for federal judges to know that their clerks will probably make more than them in a couple of years.

On the other hand, at least the federal judges don't have to put up with a mouse-infested facility like the even more underpaid state judges in Hennepin County. This, no doubt, has to do with the fact that the federal government, unlike the state, has the death penalty.

As the Screen Writers’ Guild strike stretches into its second month, one answer for unhappy TV fans is obvious: DVD sets of your top shows. Scanning a few past episodes of two of my favorites, one current and one cancelled, reminded me of a pair of similarly absurd linguistic -- and law-related – recurring jokes from them.

On NBC’s 30 Rock, a dimwitted cast member of the Saturday Night Live-like show depicted in the series (Jane Krakowski) is starring in her first feature film, a legal drama called The Rural Juror. The trouble is, none of her co-workers has read the movie’s title; they’ve only heard her say it out loud with less than perfect enunciation, so as far as they can tell, she’s starring in a movie called The Ruhr Jurr. Or The Rear Jeerer. Or something.

Meanwhile, Fox’s late and lamented Arrested Development is about a wealthy family, the Bluths, that tries to maintain its lavish lifestyle while their crooked patriarch (Jeffrey Tambor) is in prison. In the third season of the show, we meet the Bluths’ lawyer, Bob Loblaw (say it out loud). The show gets plenty of mileage out of his name; in fact, eventually we learn that Bob has started his own online diary. Its title? The Bob Loblaw Law Blog.

(Another prominent running gag on Arrested Development is that none of the Bluths knows how to imitate a chicken. Don’t ask; it’s just that kind of show.)

By the way, Bob Loblaw is played by Scott Baio. In a previous season, another Bluth attorney was played by Henry Winkler. Arrested Development’s producer and narrator was Ron Howard. If you find that not-quite-a-coincidence amusing, the show’s particular brand of off-kilter meta-humor might be just right for you.

Hennepin County District Court Judge Jack Nordby has issued an order warning that he believes the statutory scheme for penalizing intoxicated drivers is in jeopardy because the manufacturer, CMI Inc., refuses to turn over the source codes. The Court of Appeals has already upheld the suppression of evidence in implied consent cases where the code—which reveals whether the machine is working properly—has been demanded but not revealed. The court soon will rule on the issue in a criminal case.

Meanwhile, Nordby has forwarded to Minnesota Lawyer an order suppressing intoxilyzer results unless the source code is revealed within 30 days. History suggests it won’t be. Nordby treated the question as a simple discovery dispute but questions, “in passing,” whether “it [is] thinkable, constitutionally, that our society could imprison persons who simply decline to take a test on a machine to whose design, construction, and functioning they do not have complete access?”

The case is State v. Littman. The attorney for the state is Jennifer Marie Inz and the attorney for the defendant is Derek Anthony Patrin.

For you Jane Austen fans out there, there is a post on the Volokh Conspiracy blog discussing the interplay between property law and the plot of Pride and Prejudice. As the blog points out, the whole reason the five daughters have to get husbands is the ancient doctrine of fee tail, requiring property subject to such a restriction (such as their father's) to pass only to male heirs. Find your prince or wind up penniless in the streets -- not much of a choice, is it?

Quite fortunately, the esteemed and eminently wealthy Mr. Darcy happens by and saves the day for the heroine of that book. I suspect in a more modern version of the story, Elizabeth Bennet would take her sizable smarts to Wall Street or at least some Big Law firm, dispensing with the need of the plot device of Mr. Darcy altogether. Not quite as romantic, perhaps, but much more fair to women. In any event, we are lucky the abominable custom of the fee tail has been relegated to the history books.

For more on Jane Austen and property law, click here.

As Minnesota Lawyer reports in its Bar Buzz column this week (password required), state Supreme Court Justice Paul Anderson has already launched his '08 re-election campaign effort. His campaign committee is now soliciting funds and other support for the justice.

Anderson will present an interesting test case for Minnesota judicial elections, which so far have not been much impacted by federal court rulings striking down restrictions on judicial campaigning. Many in the legal community have been worried the rulings -- which were made in the White case -- will lead to the big-money highly politicized judicial races experienced in a number of other states. However, since White, judicial races have thus far remained relatively quiet.

But pro-life interests have publicly stated in the past that they would target Anderson when he came up for election because he was on the high court when it issued Doe v. Gomez in 1995. (In the Gomez case, the court struck down a law limiting state medical assistance for abortion to cases of life endangerment and reported rape and incest.)

Whoever decides to take on Anderson will have an uphill battle to fight. First of all, he is a Republican appointee who, in 13 years on the court, has earned a reputation as a moderate voice. Secondly, the longtime justice is also known as being the most gregarious of the seven justices. In fact, he has frequently been called the high court's "goodwill ambassador" due to his amiable disposition and omnipresence at community events and other outreach efforts. I have heard tell that he will serve as a tour guide for almost any student he happens to run into who expresses an interest in the courts. It's going to be pretty tough for an opponent to come at the popular justice if the only arrow in his or her quiver is a single opinion from 12 years ago (which Anderson didn't even write). "Activist judges" should be made of stronger stuff.

Whatever happens, 2008 is likely to be a watermark year for judicial elections. It brings to mind the ancient Chinese curse, "May you live in interesting times." For judicial elections, we do.

The Star Tribune yesterday published a highly favorable analysis of the productivity of the Minnesota U.S. Attorney’s Office under Rachel Paulose.

According to the Strib, the office prosecuted a record 668 defendants in fiscal 2007, which ended in September. The productivity gains came despite the resignations of four top managers, a drop in the number of prosecutors in the office and fewer case referrals from the FBI, the Strib says.

The Strib reports dramatic increases in the number of defendants prosecuted for drugs, Civil Rights violations and immigration-law violations. At the same time, the number of white-collar prosecutions remained in line with the office’s statistical average.

The favorable performance was achieved despite a yearlong hiring freeze that left the office down five full-time prosecutors, according to Jeffrey Paulsen, chief of the criminal division.

For the full Strib article, see “Under Paulose, office posted record cases.”

Minnesota’s new law permitting a judge to put a sex offender in jail for life may soon be put to use. According to an Associated Press report, prosecutors in Dakota and Ramsey counties are seeking to use the 2005 law in two pending sex crime prosecutions.

The Minnesota law allows life without parole for sex crimes featuring “heinous elements” such as torture, mutilation, multiple victims or “extreme inhumane conditions” that could lead to “severe ongoing mental, emotional or psychological harm.” First-time offenders aren't eligible unless their crimes involve two such factors.

In the Dakota County case, County Attorney James Backstrom is pursuing a life sentence for Robert O. Bollett, a 43-year-old repeat sex offender now charged with molesting two boys. In Ramsey County, prosecutors want life without parole for Gari Lamont Stewart, 26, who faces attempted murder and other charges in the assault of a St. Paul couple in June. Stewart allegedly tried to suffocate and stab the man, raped the woman twice, set the apartment on fire, then forced the woman to withdraw money from a cash machine.

Minnesota has never before allowed a life sentence for a sex offender who didn't kill his victim.

I have mixed feelings about the new law. Personally, I don’t believe that the harsher penalty will prevent people from committing sex offenses. And putting someone in jail for life has tremendous costs for the state. At the same time, I have doubts about whether repeat sex offenders can really be rehabilitated, so this is a way to get these people off the street. Regardless, because life in prison is such serious punishment, I do hope that the law is used only when it’s truly warranted to protect the public. It will be interesting to see what happens in these two cases.

In two 4-3 decisions issued yesterday, the Minnesota Supreme Court ruled against admitting evidence obtained by police officers executing invalid nighttime warrants.

In both cases, the officers failed to meet the Minn. Stat. sec. 626.14 requirement that they demonstrate special circumstances existed justifying conducting the search at night. (Absent such a demonstration, the law mandates that warrants be served between the hours of 7:00 a.m. and 8:00 p.m.)

In one case, State v. Jackson, police executed the warrant at 9:25 p.m. When they entered, they found the defendant at her kitchen table with her two teenage children. In the second case, State v. Jordan, police executed the warrant at 6:00 a.m. The defendant was not home, but his 20-year-old daughter, her boyfriend and a guest were in the house asleep.

Both defendants in both cases sought to exclude evidence uncovered by police, arguing that the searches violated their statutory and Fourth Amendment rights.

The Supreme Court found that the violations in the two cases were serious and subverted the basic purpose of sec. 626.14.

In order to reach this determination, the court had to clarify exactly what the purpose of the statute was. “[W]e believe it is appropriate to define the interest protected as freedom from intrusion during a period of nighttime repose,” wrote Justice Paul H. Anderson for the Jackson majority.

The dissenting justices argue the violations were technical and did not warrant exclusion of the evidence seized.

More in next Monday's Minnesota Lawyer.

We ran an article recently that pointed out some of the interesting side jobs of Minnesota attorneys.

Here's another one that might fit the bill: Walter Mondale has been named Norway's honorary consul general in Minneapolis.

According to a release yesterday from Norway's Ministry of Foreign Affairs, Mondale will facilitate research, education and business cooperation between Norway and the Midwest. Mondale's family originally hails from Mundal on the west coast of Norway.

But as the Associated Press points out, Mondale's position will be largely ceremonial — and represents a demotion of the Minneapolis consulate to "honorary" status.

Wait — isn't this how Cold Wars get started?

No worries. The Norwegian embassy is also searching for an honorary vice consul to help the honorary consul general execute his ceremonial duties.

If you read Star Tribune columnist Nick Coleman's column today, you might be under the misimpression that Court of Appeals Judge Christopher Dietzen is some sort of mafioso.

It's well known that Dietzen, who was recently appointed to the state Supreme Court, has conservative credentials and close ties to Gov. Tim Pawlenty, including serving as Pawlenty's legal counsel. In an apparent reference to this, Coleman refers to Dietzen as the governor's political consiglieri. Now that word can technically just mean a counsellor or advisor, but who doesn't think of "The Godfather" when they hear it? In fact, I found the following definition when I googled the word: "An adviser or counselor, especially to a capo or leader of an organized crime syndicate."

As far as I know at least, Dietzen has never delivered a horse's head to anyone's bedside or shot anybody at a toll booth. With decades of legal experience and three years on the Court of Appeals under his belt, Dietzen is well-qualified for the high court post. He is a political conservative (no surprise with a Republican governor doing the picking), but does not have a reputation as a radical as Coleman seems to imply.

The one point Coleman makes that I agree with is that judicial candidates in Minnesota should go through a mandatory merit-selection procedure rather than just be hand picked willy-nilly by the governor. While I believe that Dietzen is a worthy selection, the governor could have made any lawyer friend an appellate judge with the same ease that Caligula once made his favorite horse a Roman senator. Under our current system, the governor has absolute discretion in awarding appellate judgeships to lawyers. (Several governors in the past have chosen to use ad-hoc screening committees to vet appellate appointments, but this process has never been required.)

Both the Minnesota State Bar Association and the Quie Commission include in their proposals for revamping judicial elections in Minnesota a requirement that a merit-selection committee screen all candidates seeking appointments to the bench. Regardless of where we come out on judicial-election reform, I think that is one component of the proposals that ought to be adopted.

The announcement of pending legal action against R.J. Reynolds Tobacco couldn’t help but call to mind the prominent role Minnesota played in presaging the largest civil suit in U.S. history, and why it might be kept from joining the other states in this case.

Attorneys general from nine states this week announced plans to sue over the cigarette giant’s use of cartoons in an advertising section contained in Rolling Stone magazine, saying it violates terms of the landmark 1998 settlement between 46 states and the tobacco industry that reimbursed states for smoking-related health care costs.

In an effort to prevent the industry from trying to sell to minors, the agreement includes a provision against using cartoons in advertisements. The advertising section in question combines pages of Camel cigarette ads with pages of magazine-produced illustrations on the theme of independent rock music.

Minnesota’s AG’s office wasn’t one of the nine states that announced plans to sue. That could be because Minnesota, as part of the 1998 settlement, agreed not to make further claims to recover tobacco-related health care costs.

It would be ironic if Minnesota, as one of the first states to take on the hitherto untouchable tobacco industry and win, would be kept from joining in a renewed legal action because of those terms.

Southern District of New York Judge Harold Baer has taken the opportunity in a trade secrets case—now settled—to deliver a 129-page admonition to the lawyers in the case and the profession in general concerning what he sees as declining standards of professionalism and civility.

The plaintiff was represented by Dorsey & Whitney, and attorney Kristan Peters, who was with the firm from January to June this year. The complicated dispute involves the use of information allegedly protected by court orders. The judge’s full opinion in Wolter Kluwers Financial Services Inc. v. Scivantage, is available here.

Dorsey denies the allegations of unprofessionalism against it but more interesting to me is the judge’s exhortation on lawyers and law firms in general. If it’s accurate—and I don’t know that it is—I’d like to think it’s an East Coast phenomenon.

Baer writes,

“While I am dismayed at the way in which many law firms today approach the
practice of law, I realize that for the most part is it none of my business and
indeed not the business of the judiciary in general. The fact that partners are
at times made and retained for their rainmaking skills and not for their legal
skill, that the number of billable hours is not only the alpha and omega of
bonuses but that these hours—or at least the ones that count—often exclude pro
bono hours, or that who gets credit for originating a piece of business can
throw a firm into turmoil and prompt major internecine struggles, or that the
bottom line has eclipsed most everything else for which the practice of law
stands or stood to the extent that the practice of law is now frequently
described as a business rather than a profession. . . . Rather, it is the
fallout from such conduct, some of which we witnessed here, that ineluctably
drives some lawyers and some law firms to the kind of conduct that played out
before me at this hearing and that then becomes the business of the
courts.”

The U. S. Supreme Court yesterday heard oral arguments in a closely watched employment law case. The high court has been asked to decide whether a plaintiff suing for employment discrimination can introduce so called "me too" evidence. (Click here for more.) DC Dicta -- a blog run by our national sister publication, Lawyers USA -- actually found something funny to report on in a pretty serious case.

With the new attorney general and the solicitor general looking on, Deputy Solicitor General Gregory Garre argued the government's amicus position. Garre is a seasoned attorney who once clerked for Chief Justice William Rehnquist, but that did not stop him from inadvertently misstating the name of one of the justices.

In another otherwise articulate response to question from Justice Samuel Alito, Garre mistakenly referred to Alito as "Justice Scalia." (Alito and Scalia sit three seats apart.) There are, of course, liberal blogs that might say we are splitting hairs differentiating between the two conservative justices. Nonetheless, the slip up -- which went otherwise uncommented on --reportedly drew chuckles from the press gallery.

I am just glad to know that even the most seasoned lawyers get nervous when they argue a case in front of the U.S. Supreme Court.

The revised Federal Rules of Civil Procedure turns 1-year-old this weekend, and according to Eden Prairie-based electronic discovery firm Kroll Ontrack, around 105 e-discovery opinions came down over the past 12 months.

As you may remember, the new rules attempted to streamline e-discovery by calling for earlier judicial conferences, exempting material that is not reasonably accessible and adding a safe harbor provision, among other changes.

So without further ado, here are the five most significant cases that addressed e-discovery in 2007, courtesy of Kroll:

Columbia Pictures Industries v. Justin Bunnell
The Central District of California in May held that server log data stored in RAM was discoverable.

Lorraine v. Markel Am. Ins. Co.
The District of Maryland in May outlined standards for the admissibility of electronic evidence, stating it must be relevant, authentic, not hearsay or admissible hearsay, the "best evidence" and not unduly prejudicial.

Peskoff v. Faber
The District of Columbia in February ruled that accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible.

Qualcomm, Inc. v. Broadcom Corp.
The Southern District of California in September considered sanctioning attorneys for discovery abuses.

Oxford House, Inc. v. City of Topeka
The District of Kansas determined there was no obligation to preserve overwritten e-mails before the likelihood of litigation.

More information about these and other e-discovery cases is available in .pdf form, organized by jurisdiction and topic.

The Fourth Judicial District, serving Hennepin County, in a press release today announced an immediate hiring freeze along with changes in court hours and operations in response to an anticipated budget shortfall. The court projects a $1.4 million budget deficit for its current fiscal year which ends in June 2008.

The hiring freeze reportedly will result in staff shortages throughout the court, requiring a reduction in services. Some of the changes that will impact the public include:

-- Walk-in counter and telephone services will be curtailed Wednesday afternoons, 1:30-4:30 pm, beginning Jan. 2, 2008. For example, citizens will no longer be able to pay traffic tickets in person, request copies of court files, or receive updates on the status of cases via telephone on Wednesday afternoons at all locations. Court hearings and trials will not be affected and will continue as usual.

-- Conciliation Court calendars will be reduced by one-third, resulting in some delay in scheduling hearings.

-- A program that provides supervised visitation services to noncustodial parents and their children in Family Court will be halted.

-- The court will no longer provide arbitrators for Alternative Dispute Resolution in Civil Court.

-- The court will no longer conduct criminal record checks for the public; members of the public will be referred to the public access website where this information is available.

Several factors are contributing to the anticipated shortfall, according to the release. The Hennepin County Court received $900,000 less than its budget required to cover salary and fringe benefit increases and funding for positions required by a new information system. Some of the new money that was appropriated to the state’s trial courts for the Fiscal Year 2008-2009 biennium was earmarked for special purposes, making it unavailable to cover increases in basic operating costs like employee salaries and insurance.

The District had hoped to rely on vacancy savings to help cover its shortfall. However, year-to-date vacancy rates have been much lower than expected, the release said.

If you’ve ever wondered why a new copy of Microsoft’s Vista operating systems costs $300, a clue might lie in the size of the war chest the software giant must maintain for its legal fees.

A Wisconsin judge ruled this week that Minneapolis attorneys with national law firm Zelle, Hoffman, Voelbel, Mason & Gette were entitled to $4.2 million in legal fees and expenses stemming from its work in an antitrust suit against Microsoft that was settled in 2006. Microsoft challenged the fees, saying the Zelle firm had misrepresented the hours they spent working on the case.

The Wisconsin class action suit was settled for $223.8 million. A similar suit based in Minnesota was settled for $174.5 million.

Earlier this year, the Software Freedom Law Center did a projection of how much Microsoft users are being asked to share in the company’s legal costs. The group took the total of $4.3 billion dollars in legal costs incurred by Microsoft from 2001 to 2004 and divided it by estimated sales of the Windows XP operating system over the same period — about 200 million copies — to come up with a figure of $21.50 per user that goes toward Microsoft’s defense of patent suits and other legal costs.

Gov. Pawlenty will announce his pick for the Minnesota Supreme Court this afternoon. Not a lot of process, not that there has to be. Many in the legal community expect a prominent attorney, not a sitting judge, to be Pawlenty's pick. One name that has been frequently mentioned is Eric Magnuson, head of the judicial selection commission, but we'll see. The governor will also name judges to district courts in Carver, Dakota, Rice and Scott counties.

The Associated Press reports that the U.S. Supreme Court today declined to hear a challenge to a California county's practice of routinely searching welfare applicants' homes without warrants.

While I am not completely comfortable with the hang-the-mutineers-from-the-yardarm approach of the Wall Street Journal’s recent editorial, I don't think that Rachel Paulose’s decision to leave the Minnesota U.S. Attorney’s Office should end the inquiry into what happened there.

In a highly public uprising last April, three of Paulose’s then-deputies and an administrator stepped down from their leadership roles. (All four opted to stay in that office rather than leave, creating a management situation for Paulose that was awkward to say the least.) The move – which came at the height of the furor over the national U.S. Attorneys scandal – appears to have been calculated to dislodge Paulose from her post. Predictably, the self-demotions led to a firestorm of round-the-clock negative media coverage focused on Paulose. However, Paulose was left standing after media attempts to tie her actions into the national scandal failed.

There are, of course, exceptional circumstances that would justify a mutiny like the one staged by these deputies. So far, I have not seen anything like that on the public record – just allegations Paulose wasn’t a good manager. I think it is something that definitely needs to be explored now – particularly if, as Senators Norm Coleman and Amy Klobuchar recommend, U.S. Attorney General Michael Mukasey is to choose an internal candidate as Paulose’s successor. (At least one of those deputies has been named as a possible candidate in the local press.) As a corollary, such an inquiry should also consider how these each of these individuals acted after they stepped down and went back to nonmangement roles.

The other thing that concerns me deeply is that a person or persons in the office leaked highly sensitive personnel information over the Internet, including selected details of a retaliation and a discrimination complaint. This leaking was done in a manner to stoke the negative media coverage and to compromise Paulose’s ability to effectively carry out her job. The divulging of this personnel-related information was not only clearly in violation of Department of Justice policy, but also threatened the integrity of the investigative process for those complaints. I think people working in a public office have to follow the rules – if we learned anything from the Gonzales era it should be that.

I urge the new AG not to rush to pick an internal candidate as U.S. attorney without first sorting out his or her role in the recent events in the office. I think the vast majority of those in the office kept their heads down and went about their business despite the intrusive controversies. A few people in the office appear to have become disruptive forces who made it their business to stir those controversies up. If our new U.S. attorney is indeed to be drawn from the internal ranks, I, for one, would like to make sure that he or she is drawn from the former group.

If U.S. Attorney General Michael Mukasey heeds the advice of the Wall Street Journal, disgruntled staff members who lobbied for Rachel Paulose to depart from the Minnesota U.S. Attorney's Office may soon wish they hadn't.

In a weekend editorial entitled "Scandalette" (password required), the heavy-hitting business daily weighed in squarely behind Paulose, who recently announced that she would leave the state at the end of the year to take a policy job at main Justice in Washington, D.C.

The WSJ opinion piece characterized most of the criticism against Paulose as amounting to an accusation that she can be a difficult boss. "If that's a hanging offense, then most of Congress would be out of a job," the WSJ says.

The editorial also refers to Paulose as an "innocent bystander" drawn into a "Beltway bloodletting" by a Congress wanting to take public hostages, a media playing up the controversy and a career staff that "took the chance to trash a political appointee they don't like."

The WSJ goes on to give the following piece of advice to Mukasey: "As for replacing Ms. Paulose in Minnesota, the AG ought to send to that office someone who'll take no grief and clean out the whiners."

Many in-house types have been worried about the cost of compliance since Sarbanes-Oxley, and recent data on accounting salaries show that there may be cause for continuing concern.

According to the 2008 Salary Guide from Robert Half, public accountants are expected to see a bump in pay anywhere from 5.5 percent to 7.7 percent — several percentage points higher than the projected salary hikes for corporate accountants.

Will this translate into higher bills for those internal control reports? Here’s the numbers:

PUBLIC ACCOUNTING
Audit, tax and management services

Large firms
Senior manager/director: +7.4%
Manager: +7%
Senior: +6.1%
1 to 3 years: +5.7%
Up to 1 year: +5.5%

Midsize firms
Senior manager/director: +7.7%
Manager: +7%
Senior: +6.2%
1 to 3 years: +6.4%
Up to 1 year: +6.3%

Small firms
Senior manager/director: +7%
Manager: +7.6%
Senior: +6%
1 to 3 years: +7.7%
Up to 1 year: +6.4%

The news that Rachel Paulose would be leaving as U.S. attorney was hardly shocking. (See "Minnesota's embattled U.S. attorney steps down" in the Star Tribune.) And I am sure that there are many in the U.S. Attorney’s Office rejoicing. The gulf that had grown between our 34-year-old U.S. attorney and her staff was wide, and, in the end, proved insurmountable.

I believe that Paulose made the right choice in opting to end her often stormy tenure and accept a policy job in main Justice in Washington, D.C.

It has always been my belief that it was a management situation causing the disruptions at the office. Paulose has sterling academic credentials and a highly impressive resume for her age. But she had little real management experience.

Intent on impressing her bosses and no doubt deeply believing in her priorities, she plowed ahead and redirected the office without getting buy-in from the troops. She was also reportedly sometimes dictatorial in manner and abrasive toward subordinates. These are rookie mistakes frequently made by inexperienced managers. But when that manager is in charge of 100 talented individuals at the U.S. Attorney’s Office and operating in a fishbowl, there is little room for error.

While I am not adverse to occasionally giving an important role to a highly talented young person and giving them a chance to grow into it, such a person needs guidance and support. As far as I can tell, such support was completely lacking from the problem-riddled Department of Justice.

While I did not agree with all the actions taken by some in Paulose’s office (particularly those leaking information), I believe that their motivations arose out of the difficult employment situation they found themselves in rather than race or gender animus.

And I likewise don't believe the charge bandied around the Web that Paulose somehow has racist tendencies. As a woman from an immigrant family from India, she found that speculation particularly hurtful. I know that she is willing at the drop of a hat to give a long list of past accomplishments showing her interest and commitment to the Civil Rights area, including her recent work in human trafficking, which often involves woman from foreign cultures.

So what are we left to think of Paulose?

I had the pleasure of getting to spend some time speaking with and getting to know Paulose while I was covering the various management-related controversies in her office. The Paulose I got to know was neither the Wicked Witch of the West that some of her detractors made her out to be nor the “St. Rachel” of some conservative blogs (and for that matter, of Katherine Kerstin’s somewhat over-the-top salute in the Star Tribune last May, “The Real Rachel Paulose.”)

I found Paulose to be a highly driven and even at times charming individual who also is a fallible human being. She is definitely conservative, but not very political. (Ironically, had she cared more about politics, she might have been able to rally some political support when she needed it so badly.) She is a brilliant woman with encyclopedic knowledge. Most surprising of all was the fact that Paulose has a keen sense of humor – albeit a wryly dry one.

Unfortunately, most of Paulose’s subordinates apparently never got to see this side of her. Because of her poorly developed management skills, she came across as aloof, condescending and inflexible. She was apparently so busy being defensive after being thrown in at the deep end of the pool that she never let her personality shine through.

Sadly, I think Paulose was starting to improve in recent months. She was no longer micromanaging, but instead was spending a lot of time on the road on outreach projects and delegating the day-to-day operations to her experienced deputies. Had she adopted this approach from the beginning, we would likely not be at this point now.

Then Paulose made her final misstep -- issuing a public comment online about the internal dispute in her office. It is ironic that that was the nail in Paulose’s coffin. She was generally very shy about talking on the record about anything for public consumption, no doubt due in part to her inexperience dealing with the media. I suppose the battering she was taking in the media and on the Internet finally got the best of her. Understandable, but unfortunate.

It is my hope that Paulose will view this as a learning experience rather than accept some of the easy excuses some of her more vocal supporters have been offering her. She was only 32 when she was thrust into a management situation that most 50 year olds couldn’t handle. She was given little or no good support from an incredibly dysfunctional DOJ. She struggled mightily, but was unable to pull it off in the end. No shame in that.

In short, Paulose is a remarkable young woman with a lot to offer. While I think higher-ups in the Administration did her a disservice by moving her along too far, too fast, I am equally sure she has already begun contemplating how she can get the seasoning she needs to make sure she is properly prepared for her next great challenge – be that in public service or the private sector. In the near term, I am glad to hear the people of the United States will continue to benefit from her extensive talents as she moves on to a role that is, for the present, better suited for her.

In closing, I would like to point out that Paulose’s tenure in Minnesota has not been wasted. Despite the internal problems, the office did some great work in investigating and prosecuting child-porn and human trafficking cases. I would not have that forgotten due to the recent turbulence. Minnesotans can truly be grateful to Paulose and the entire staff of the U.S. Attorney’s Office for their Herculean efforts in those areas. It’s a legacy worth having.

More bad news about gender equity in the law from the National Association of Women Lawyers' second national Survey on Retention and Promotion of Women in Law Firms.

Among its findings, the survey shows that there is a growing income gap
between men and women lawyers as they move up the partnership ranks, that
the large majority of women who start as associates in firms are not
promoted to equity positions or law firm leadership roles, and that law
firm governance is overwhelmingly male, with fully 15 percent of the surveyed
firms lacking a female on its top committee.

A news release from NAWL is available here, and ABA coverage of the survey is available here.

NAWL offers an interesting resource for women relative to these issues. It offers the "Connect, Listen and Learn" series, an teleconference book club that includes the author. December's book is "Tripping The Prom Queen: The Truth About Women and Rivalry" with Susan Shapiro Barash.

The site states, "As more women join law firms we need to think about ways to maximize the ways we work together. This book explores the world of women to women competition and how we often undermine each others efforts. ...Barash discusses the “underworld” of female relationships and ends with outlining ways that we can turn this competition into strength.

Also on NAWL's website is a picture of Minnesota Senator Amy Klobuchar with Holly English, NAWL's president. English visited Minnesota last month for the Minnesota Women Lawyers Rosalie Wahl Leadership Lecture, where she warned attendees this bad news on gender equity was coming, and emphasized the need for women lawyers to support and mentor each other.

As Minnesota Lawyer editor Mark Cohen mentioned on Friday, after months of keeping a relatively low profile, U.S. Attorney Rachel Paulose has stepped back into the spotlight. But after all is said and done, she might wish she hadn’t.

Local conservative blogger Scott Johnson wrote an essay for the National Review’s blog dismantled Johnson’s article in a lengthy essay that went online today. MNPublius maintained that it was a curious strategy for Paulose to counter charges of partisanship by giving an exclusive to a strongly conservative blogger. And Steve Sack’s Star Tribune cartoon Monday made no bones about the lingering talk that Paulose got and has kept her post thanks mostly to loyalty toward the Bush administration (click on cartoon 2 in the ST’s Sack gallery).

In trying to defend herself, Paulose seems to be only leaving herself open for more criticism, all but erasing memories of her positive accomplishments.

UPDATE: The news has just broken that Paulose has resigned her post as U.S. Attorney to go to work for new U.S. Attorney General Michael Mukasey.

In her first public statement on the allegation that she once used a racial epithet in reference to a subordinate, U.S. Attorney Rachel Paulose vigorously denied the charge.

“I NEVER made any such statement. I have told the department so, and the department is defending me against this outrageous and defamatory lie,” said Paulose in an online article posted on the National Review site.

Paulose goes on to add, "The McCarthyite hysteria that permits the anonymous smearing of any public servant who is now, or ever may have been, a member of the Federalist Society; a person of faith; and/or a conservative (especially a young, conservative woman of color) is truly a disservice to our country.”

The article was authored by Powerline blogger and Minneapolis attorney Scott Johnson.

Click here for more.