Minnesota Lawyer Blog

Yesterday was a picture-perfect day to be by the St. Croix River -- so I was pleased to be able to attend the 10th Judicial District's Bench and Bar Conference in Stillwater. (The Minnesota State Bar Association set the whole program up as part of its continuing efforts to increase its presence and visbility outside the Twin Cities.)

The area that encompasses the 10th District -- which includes Anoka and Washington counties -- has undergone some radical growth in recent years. It was interesting to hear some of the judges and lawyers from the area discuss how that growth has affected them. Slated to get two more judges in the near future, the 43-judge district is second only to the 4th District (i.e. Hennepin County) in the number of judges that it has.

Minnesota Supreme Court Justice Paul Anderson and Court of Appeals Chief Judge Ed Toussiant were among those who came to event, for which about 160 members of the local legal community signed up. The judges (or justice and chief judge, to be more precise) did an interesting and informative presentation on the recent key state appellate decisions.

Minneapolis attorney Chuck Lundberg and 10th District Judge Ken Jorgenson put on an entertaining and funny(!) ethics program (if that's not a contradiction in terms), which somehow managed to incorporate both a flashing siren and a video clip from Ally McBeal.

All-in-all, a nice event, made all the nicer by the fact that afterward I stopped for a meal on the deck of The Freight House, where the view of the St. Croix can't be beat.

The Associated Press has reported that a Wisconsin legislator has persuaded the state's Assembly to eliminate all state funding for the University of Wisconsin law school. The reason: There's too many lawyers in Wisconsin.

Rep. Frank Lasee, R-Green Bay, was quoted as saying: "We don't need more ambulance chasers. We don't need frivolous lawsuits. And we don't need attorneys making people's lives miserable when they go to family court for divorces. And I think that having too many attorneys leads to all those bad results."

Wow. Tell us how you really feel Rep. Lasee. I respect the representative's right to make these comments, but I also respect the legal profession too much to let them go unchallenged. We know that lawyers are not rated too high on the public's list of honorable professions, and negative, stereotypical comments like these are a big part of the reason. They seriously undercut and undermine the good and important work that personal injury and family law attorneys do for their clients. While every profession has a few "bad apples," by far the great majority of attorneys I know -- and as a legal journalist and attorney myself, I know a lot of them -- are honorable folks who got into the profession to help people.

Fortunately, according to the AP report, Lasee's plan appears to have little chance at surviving negotiations between the Assembly and Democratic-controlled Senate and being included in the Legislature's final budget. And even if it did, Gov. Jim Doyle would likely veto it. (Apparently, Doyle's late mother was a beloved administrator at the law school.)

Let's hope Rep. Lasee's sentiments -- and his proposal to eliminate funding to the state's law school -- are not contagious and don't spread to Wisconsin's neighbors. Let's also hope that Rep. Lasee doesn't need legal representation any time soon.

From Minnesota Lawyer's How Not to Avoid Jury Duty file comes this story from Cape Cod, Mass., about a man who claimed to be a racist homophobic liar to skip jury duty.

The would-be juror, Daniel Ellis, got his wish: he was not chosen to serve on a three-month grand jury. Instead, the judge ordered Ellis taken into custody for possible perjury and other charges.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," wrote Barnstable Superior Court Judge Gary A. Nickerson, according to the Boston Globe.

Here's how it went down:

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with the judge.

"You say on your form that you're not a fan of homosexuals," the judge said.

"That I'm a racist," interrupted Ellis. "I'm frequently found to be a liar, too. I can't really help it."

"I'm sorry?" Nickerson asked.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" the judge asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

I will be in Stillwater today for the state bar association's 10th Judicial District Bench and Bar Conference. (Minnesota Lawyer is sponsoring it.) So if you are an attorney or judge planning to attend, feel free to say "hey" (or even "hello") ...

While blogs don't have faces, they do occasionally have face lifts. We hope you like the modifications we just made to our look. Our apologies to anyone who happened by earlier while we were still fiddling with our layout.

A recent opinion by the New Jersey's Advisory Committee on Professional Ethics says the state's lawyers can refer clients to investment companies in which they own stock and can also receive a share of commissions from the client's dealings. Also, if the investment company advises a client on estate planning, the lawyer can prepare the documents.

Those applauding the decision say it creates ways for lawyers and nonlawyers to team up in ways that are lucrative for both. But the New Jersey Bar Association feels that opening the door for the nonlawyers to have an interest in law practices this way could raise attorney-client privilege issues, in addition to encouraging lawyers to think foremost in terms of potential revenue streams.

The arrangement the advisory committee seems to be endorsing goes beyond simple quid pro quo referrals between friends and associates. One would hope that clients are savvy enough to realize that a lawyer's referral to another firm in which he's partial owner should be taken with a grain of salt at best. But in reality, most people don't have the time or resources to check into such things. That's where the danger could lie.

In a post a couple of weeks ago ("AG's Office Looking for a few good lawyers"), I queried whether the Minnesota Attorney General's Office had lowered its hiring standards in light of the turnover, HR issues and employee unionization efforts in the office reported earlier this year. What spawned the question -- for which I had no ready answer -- was a rather sparse "attorneys wanted" ad that the office ran in the online classifieds of Bench and Bar. The ad merely asked for attorneys to submit their resumes without requiring that they have any particular qualifications.

I would be remiss if I did not report that the AG's Office has now updated its Bench and Bar ad to provide a much more detailed laundry list of qualifications it would like applicants to have. The crux of the new ad appears below.

Tired of sitting in your office reviewing documents and reading about cases but not arguing them in court yourself? Want to handle the type of legal work that inspired you to go to law school in the first place? The Office of the Minnesota Attorney General is seeking resumes from attorneys who are self-motivated and want to work in the public sector on challenging, cutting-edge legal issues. Applicants should have strong academic credentials (top 25% preferred), excellent verbal and written communication skills, initiative, drive, and a strong work ethic, and a commitment to public service. The Office of the Minnesota Attorney General offers a competitive compensation and benefits package. If you have the qualifications, please submit a resume to ...

Ironically, appearing directly to the left of the AG's ad on the Bench and Bar site is a link to an "attorney wanted" ad for Allina Hospitals & Clinics. As you may recall, Allina was once sued by former AG Mike Hatch.

Some sanity in the forfeiture law arena: In Torgelson v. Real Property known as 17138 880th Ave., Renville County, Minnesota, and its accompanying case, the Court of Appeals has ruled that homestead property is not subject to forfeiture in connection with a drug possession conviction.

Two lower courts had ruled that the Minnesota Consitution permitted such a forfeiture, but the Court of Appeals recognized that the property hadn't violated the law and the policy behind the homestead exemption wasn't served by pretending that it had in order to allow the forfeiture.

The state had argued that the homestead exemption didn't apply because the forfeiture was an act against the property and not based on the personal liability of the property's owner. As if, or as the Court of Appeals said, "We disagree."

Another opinion by the Court of Appeals includes what is, to me, a welcome discussion of the word "jurisdiction."

In Moore v. Moore, issued today, the question was whether the court had "jurisdiction" to modify maintenance. In a footnote, Judge Randolph Peterson writes that a restriction on a court's ability to modify maintenance is frequently, but imprecisely, referred to as a question of "jurisdiction."

Peterson notes that many use jurisdiction imprecisely to refer to claims-processing rules or nonjurisdictional limits on court authority but that the Minnesota Supreme Court, among others, has criticized this locution. Let's hope it fades from use among wordsmithing lawyers. I only wish these opinions had been around when I was in law school struggling to get my arms around this thought.

Some movement on a couple of lawsuits:

Wells Fargo won round I in its noncompete suit against one of its ex-private bankers who went to work for competitor Merrill Lynch. U.S. District Court Judge Michael Davis ordered the banker not to use any of Wells Fargo's client lists he took with him and to return other documents. (Click here for Strib story.)

Rottlund Homes has settled its copyright-infringement suit against Pinnacle Corp., Town & Country Homes of Minnesota and its architectural firm, the Strib also reports. (Click here for Neal St. Anthony's piece.) Discerning readers may recall that Winthrop & Weinstine attorney Thomas Boyd was named a Minnesota Lawyer Attorney of the Year for his successful appellate work in the case. (Boyd got the 8th Circuit to overturn an adverse jury verdict against Rottlund on the $32M lawsuit.)

I noticed that Minneapolis attorney Peter Swanson, whose comment appears on the post below, has launched a new version of his blog, Swanblog. Swanblog has been around since Feb. 22, 2003, which makes it a fairly respectable age in blog circles. By way of comparison, we only started the Minnesota Lawyer blog a scant three months ago.

Peter boldly promises that the new version of his blog -- aptly named Swanblog 2.0 -- "will not be like New Coke," which is probably good given that New Coke, in addition to being over-hyped and generally unpopular, was highly corrosive.

We endeavor to make this blog like the vegetable juice, V8. What do we mean by that, you ask? Are we pledging to make all the content healthy and good for you?

Nah, we just like the idea of being able to slap you on the forehead and say, "You could have visited the Minnesota Lawyer blog," when you foolishly forget to come here.

The Strib reports that Rep. Mark Olson, R-Big Lake, will use a "battered husband defense" in the prosecution against him, slated to start this week. (Click here for Strib article.)

I found a quote from Olson's defense attorney, Jill Clark, to be particularly informative: "This is a case where there really is a battered husband defense," she told the Strib.

Hmm. Now the question is: What would the defense attorney tell us if there really wasn't?

I was poking through the U.S. Supreme Court's decisions from its recently concluded term and a couple of things caught my eye. One opinion I found a little amusing was KSR International Co. v. Teleflex Inc., et al., where it took the court 31 pages to say that a certain innovation to an auto pedal was obvious and therefore not patentable. (OK, OK, the decision was vastly important in the patent law area -- in fact one of the most important in decades -- but I still love the irony of dedicating more than 30 pages to come to the conclusion that something was obvious. Shouldn't the court's test for obviousness just be something like the court's standard for defining "hard-core pornography" as enunciated by Justice Potter Stewart in 1964 -- i.e. "I know it when I see it.")

Speaking of homespun wisdom, the award this last term for a common-sense "come on folks, let's be reasonable" approach, goes to Justice Antonin Scalia in Scott v. Harris. In that case, the court held that a police officer could not be sued by a fleeing suspect for injuries he sustained when the officer forced his vehicle off the road to end a high-speed chase. (Hey, Starsky and Hutch did it all the time and they never got sued ...).

"The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others ; no reasonable jury could conclude otherwise," Scalia succinctly summed up.

To bolster his point, Scalia attached to the electronic version of the court's opinion a Real Player video of the police chase to show that the defendant's version of events was unreasonable as a matter of law.

Hmmm. I am just glad the court did not attach any video to its decision in the Anna Nicole Smith case.

There were a couple of interesting posts on the Wall Street Journal Law blog Friday. One was about a 32-year-old former New York Legal Aid Lawyer charged with unlawfully videotaping his female colleagues in their offices. A motion-activated camera was found hidden inside an alarm clock in one woman's office, along with some video images on it. The defendant attorney -- a Georgetown graduate -- reportedly purchased the security camera at a Sharper Image store. (For more, click here.) Besides the gentleman's obviously boorish behavior (assuming the charges prove true), I find the most incredible part of the story the fact that a Legal Aid lawyer living in Manhattan could actually scrap together enough funds to buy something at the Sharper Image.

In a second item, the WSJ Law Blog announced it will be on vacation in Maine this week (Click here for details.) Who knew blogs take vacations? I wonder what a blog looks like in a bathing suit? .... Fortunately, the Minnesota Lawyer blog remains open for business. I will be in Stillwater for a bar association function on Thursday, but that is about as close as I will get to any coastline this week.

The Strib's Kate Parry has an interesting column this week: "Is anyone going into journalism anymore?" It's an upbeat piece about how the influx of a group of summer interns has brought revitalizing energy into the (so recently decimated) Strib newsroom.

It is difficult to give cheery advice to folks thinking about journalism as a career these days. The general circulation dailies continue to trim back staff faster than a shaggy dog sheds its hair. I was put into a tough spot not too long ago when one of my nieces told me she was interested as journalism as a potential career field. Do I tell her to go for it, or caution her to be wary? I settled for something in between. It's like a lot of things -- those who really love it and really want to do it shouldn't (and probably wouldn't) be dissuaded. Fortunately, my niece also loves the theater, so at least she has a solid fall back if that journalism idea doesn't pan out ....

Meanwhile, Brian Lambert over at the Rake has a recent column tracing all the benefits that Pioneer Press staffers are losing under the new regime ("Singleton to Pioneer Press: Bend Over.")