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Friday, December 14, 2007

$450k in fees awarded in excessive-force case

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.

Lawyers do make mistakes

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.

A verdict with teeth in it in Hennepin County

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.

Thursday, December 13, 2007

St. Paul Police Department skirts state shield law

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:

(click for larger image)

Wednesday, December 12, 2007

ABA Journal 'Lawyers of the Year' a motley crew

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.

Federal judges looking for a little holiday cash

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.

Fun with words, TV/legal edition

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.

Tuesday, December 11, 2007

Heffelfinger recognized by Minnesota County Attorneys Association

Former Minnesota U.S. Attorney Thomas Heffelfinger was honored by the Minnesota County Attorneys Association with its Public Service Award at the group's annual meeting last week. The award is presented to an individual who has been "an invaluable friend and advocate of MCAA by supporting legislation or public policy that advances the quality of justice in Minnesota."

Heffelfinger's support for MCAA included:

-- attending Board of Director meetings;
-- seeking input from county attorneys throughout the state; and
-- helping to provide important training for MCAA members.

The group's press release also said that Heffelfinger's attention to the needs of Native American tribes was noteworthy.

Source code dispute puts convictions in jeopardy

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.

Pride, prejudice and property law

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.

Monday, December 10, 2007

Next week is the final week for nominations for Minnesota Lawyer's annual Attorneys of the Year awards.

We are looking for the names of attorneys who distinguished themselves in 2007 by a successful result in a major case, handling an important transactions, rising to a leadership position in the bar, community service/ pro bono and/or excellence in in-house services.

Past honorees have come from all walks of lawyering, including litigation, criminal defense, prosecution, transactional work, in-house, law librarians, law professors and more. The key is the individual must have done something worthy of being recognized during 2007.

If you want to nominate someone, it's not too late. Click here for more information and for nomination form.

Justice Paul Anderson already gearing up for '08 election

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.