Minnesota Lawyer Blog

In an interesting decision earlier this week, the 8th U.S Circuit Court of Appeals decided that the Eighth Amendment’s prohibition on cruel and inhumane punishment does not require a correctional facility to provide an inmate with access to an elective, nontherapeutic abortion.

Notably, however, the 8th Circuit did affirm the trial judge’s ruling that the inmate should be provided transportation for the procedure under relevant caselaw.

In Roe v. Crawford, et al., the plaintiff, an inmate in the Missouri Department of Corrections, requested but was denied transportation for an elective abortion. She then challenged the legality of the MDC’s policy against providing transportation for inmates wanting to terminate their pregnancies.

A federal District Court judge in Missouri found that the policy violated the woman’s Eighth Amendment rights because the desire for an elective abortion constitutes a serious medical need to which the correctional facility was deliberately indifferent.

The 8th Circuit disagreed, finding that in light of recent developments of the law, “an elective, non-therapeutic abortion does not constitute a serious medical need,” and a prison institution’s refusal to provide an inmate with access to the procedure “does not rise to the level of deliberate indifference” to be an Eighth Amendment violation.

Essentially, the decision is both a victory and a defeat for the pro-life and pro-choice folks. Ultimately, the court did clear the way for the inmate to get the abortion, however, so the pro-choice side in particular is touting it as a major win.

We received an interesting comment to the post directly below, "Billable hours are sooo 2007." (Believe it or not, we do read all your comments!)

This particular comment has nothing to do with the post to which it is attached, so we thought we'd pull it out and place it here in its own post so folks concerned with the topic would have the opportunity to get a look at it.

We do, naturally, have some thoughts on the topic the commenter asks about, but first wanted to open it up to see if anyone else had any input on this subject before we formulate a response. So, without further ado, here is the comment. Add anything you like, and we promise to address the substance of this sometime next week.

I'm disappointed in Minnesota Lawyer's recent lack of coverage of the ongoing story of attempts to organize a union at the AG's office and AG Swanson's ham-handed efforts to undermine that effort (the Keystone Cops would have done a better job a union-busting). Minnesota Lawyer's blog help make the story public earlier and exposed the questionable decision to keep Mike Hatch on board. Now Minn Lawyer appears to have forgotten to do any follow up coverage. It was big deal when there was unrest in the US Attorney's Office but somehow the departure of 1/3 of the line attorneys at the AG's office in the past year and ongoing unionization efforts doesn't make for a story of public interest? C'mon. Where's the journalism?

While you are waiting for our insightful reply, we suggest you check out the piece Steve Perry wrote last week for his blog, the Daily Mole. ("It's cat-and-mouse in the AG's Office as staffers try to unionize.")

It's not often that law firms are mentioned in the Fashion & Style pages of the New York Times. The practice of law is, after all, deeply rooted in tradition.

But some offices are easing away from billable hour requirements to lure new talent and place a renewed emphasis on work-life balance.

During a recent interview, attorney Trudy Halla with Briggs and Morgan told me that younger people are actively searching for — demanding even — a job that offers more than a fat paycheck for toiling 60 to 70 hours a week.

"This is not just an issue for women, it's a generational issue," Halla said.

Such is the reasoning behind Deborah Epstein Henry's FACTS program.

Henry is the founder of Flex-Time Lawyers, a consulting firm that promotes work-life balance for law firms. In the Times article, she outlines some new ways for law offices to budget employee time:

Fixed — lower profile work with a predictable schedule
Annualized — intense bursts of work followed by lulls
Core — working in blocks of time to coordinate family activities
Targeted — a customized schedule of working hours
Shared — sharing the workload with others

So is this the beginning of the end for billable hours? I think it's only a matter of time. But if you're trying to attract top talent, remember that flexibility is fashionable.

Oh, and get rid of that man-bag.

"I don't understand all the fancy lawyering, I just know a white kid robbed the bank and they beat me up."

-- Alex Hixon after settling his excessive-force case against Golden Valley police for 1.15M, as quoted by the Star Tribune in "Lawsuit's settlement brings no joy to man beaten up by police."

The entire Strib article is pretty interesting. Hixon talks about how the settlement is not grounds for celebration because he was traumatized by the event and had lingering mental-health issues. The frank reaction pokes a pretty big hole in the common misperception of personal-injury plaintiffs dancing on tables after they "hit the jackpot" with a big verdict.

Meanwhile, the city takes a highly questionable route by publicly portraying the officer as a victim and claiming (through its lawyer) that absolutely nothing wrong was done. I don't think that's the best way to go when paying out a million-dollar settlement after a jury finds against you. Better to just say you are not admitting liability and leave it at that.

Legislators are considering a new proposal to compensate survivors of the Interstate 35W bridge collapse, but discussion of the plan seems to point out the bind the disaster victims are in when it comes to recovery option.

Under the proposal, survivors would be paid out of a fund that would limit awards to no more than $400,000 per person. The putative purpose of the effort would be to pay victims for losses not covered by insurance or other sources, but in some cases, survivors could be worse off accepting the payment.

For one thing, federal law allows insurance companies to recoup their costs in many cases like these, which means part of whatever is paid out could get skimmed off the top by insurers before the intended recipient sees a nickel.

Also, while survivors could still sue private companies under the compensation plan, anyone who accepts money from a fund would sacrifice their right to sue the state.

Even if victims forewent a compensation offer, Minnesota law limits the state's liability to $300,000 per person and $1 million total for everyone who sues over a particular incident.

The state has already received notice of potential legal claims from almost 80 injured bridge victims and their family members. Families of six of those killed also had outlined plans to sue the state for compensation.

Even if most of those suits never ended up getting filed, the eventual terms of the new compensation proposal (one of two being discussed) should be interesting.

Here is an article from our sister publication -- Massachusetts Lawyers Weekly. I don't know of any attorneys locally who have made a similar change, but I thought this was an interesting story.

Teachable moments: Boston attorney leaves his law practice to become a teacher

To his great delight and at considerable financial sacrifice, Burton A. Nadler has traded the title of attorney for that of high school teacher.

A longtime name partner at the Boston firm of Petrucelly & Nadler, in September 2006 Nadler enrolled at Suffolk University, as a part-time student in education. He continued practicing with P&N, which still bears his name, until this fall when he began teaching history at Weymouth High School.

"I've always loved history; I was a history major in college," says Nadler, 58, a graduate of the University of Wisconsin and Santa Clara University School of Law in California.
He also teaches an elective course titled "Legal Studies," which he defines as "a basic and elementary review of the law."

"Actually, the kids love it," Nadler reports. "They're intrigued by the fact that they have a lawyer as a teacher."

By the end of last month, Nadler, who plans to remain licensed as an attorney, had obtained his teacher certification, having successfully passed the state's education-licensure exams.

His enthusiasm for his new career seems not at all dimmed by the fact that his salary as a teacher represents an "enormous" cut in pay from what he earned as a lawyer. "It is criminal what teachers are paid in the commonwealth," he says.

In February 2006, Lawyers Weekly reported that the estate of a woman who had been struck and killed by a piece of construction equipment on Boston's Huntington Avenue in 2000 would receive more than $4 million in a wrongful death lawsuit that ended in a settlement. Nadler was the attorney for the estate.

Asked if the result in that case had any impact on his decision to forsake the courtroom for the classroom, Nadler says, "I would have been able to do this without it."

The reaction of colleagues to his decision has run the gamut. "I've had a variety of reactions," Nadler says, "from 'Congratulations!' to 'How could you do it?' to a few saying, 'I wish I could make the change.' And some have said, 'I couldn't have done that.' After practicing for 25-plus years, people don't feel they can make the change to a new profession."

For Nadler, "it was a worthwhile thing to do" even if it meant giving up what he says was "a wonderful situation with my partner [Jeffrey P. Petrucelly]. I miss my partner a lot, but I don't miss the practice of law. ... I'm enjoying the rewards of being a teacher far more than I enjoyed the rewards of being a lawyer."

Minneapolis Star Tribune columnist Katherine Kersten has labeled the various investigations into the cause of the 35W bridge collapse a “witch hunt” and has now labeled the head witches: Gray Plant Mooty. The Minneapolis law firm has been hired by the Legislature to consult on the Legislature’s investigation of the bridge collapse. The firm’s team on the project is apparently headed by Robert Stein, so I guess that would make it a warlock hunt.

Kersten’s column on Jan. 21 attacks the firm’s impartiality in the investigation, noting that Gray Plan also lobbies for the I-35W Solutions Alliance, which is interested in the highway’s maintenance and expansion.

“How impartial are these guys?” the ever-impartial Kersten wonders.

I have called Gray Plant to ask them myself how impartial they are. I’ll report back when and if I hear anything.

I was watching some of last night's Democratic presidential debate when I heard Hillary Clinton take John Edwards to task for receiving lots of donations from (gasp!) trial lawyers. It was then that it occurred to me that all three of the Democratic candidates debating were lawyers. Clinton practiced at the Rose firm in Arkansas. Edwards was a North Carolina trial attorney who obtained a number of big verdicts and settlements for his clients, most notably $25M for a three-year-old who was disemboweled by the suction of a pool drain. Barack Obama was a lawyer in Chicago, where he represented community organizers and handled voting-rights cases. He became a constitutional law lecturer at the University of Chicago and a state senator.

Two out of the three went to Ivy League law schools -- Clinton (Yale) and Obama (Harvard). Edwards went to the University of North Carolina at Chapel Hill.

In any event, it was a spirited debate. Since it's a political topic, I won't weigh in too deeply. It's just as well, anyway. I kept flicking between the debate and "The Lobotomist" -- the PBS "American Experience" airing that night on the controversial father of the lobotomy operation. I don't know if public television purposely ran something about lobotomies opposite a presidential debate -- but the irony was not lost on me. I was tempted to give them a piece of my mind ...

Reasonable accommodation of an employee’s religious practices need not eliminate a conflict in the workplace, the 8th U.S. Circuit Court ruled last week. The decision creates a split in the circuits on the issue.

In Sturgill v. United Parcel Service, Inc., the 8th Circuit affirmed in part and reversed in part a District Court jury’s finding that UPS violated Title VII by failing to reasonable accommodate the preferences of a Seventh Day Adventist not to work after sundown. Sturgill was fired after he walked off the job leaving packages undelivered when the company said it could not find someone else to take over his route when the sun went down.

The court affirmed Sturgill’s award of compensatory damages, reinstatement, front pay, attorney fees and costs, but reversed an award of punitive damages and “overly broad injunctive relief” directing the company to accommodate his observation of the Sabbath in the future.

The court indicated that the employee also has an obligation to accommodate: “a reasonable jury may find in many circumstances that the employee must either compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions.”