Minnesota Lawyer Blog

Northfield attorney David L. Ludescher submitted the following letter to the editor on the judicial-election debate, which will appear in Monday’s Minnesota Lawyer. I thought it was an interesting take that I have not seen before. The format is also unique -- Ludescher structured it as a courtroom argument before a judge. The full text of the letter follows.

One of the ironies of the judicial selection debate is that the argument is taking place before the Legislature rather than before a neutral factfinder. Here is what I would say if I were defending the present system in court:

Thank you, your Honor, for letting me defend the present system. I would ask you to dismiss the case against my client on the following grounds:

Standing: Petitioners claim to be representing the people when Petitioners are actually representing the Governor, who is not part of this lawsuit. Petitioners have failed to plead any just causes of action on behalf of the Governor. We do not know if the Governor wants the relief his counsel is requesting.

Ripeness: Even if Petitioners prevail on the standing issue, this case is not ripe. As there is no present or past harm, Petitioners’ only form of relief is an injunctive relief. To prevail, Petitioners need to prove an irreparable future harm. Given that judges have been elected in Minnesota for 150 years, Petitioners claim of immediate, irreparable harm cannot succeed.

Summary Judgment: The standard of proof in a case in which the Constitution is challenged is that the challenging party must prove, beyond a reasonable doubt, that the Constitution should not be upheld.

Petitioners have not presented sufficient evidence to satisfy their burden. The fact that the trial judges have articulated a position that the proposed new system is worse than Petitioners’ proposed system is sufficient, by itself, to defeat Petitioners’ claims.

The court should summarily dismiss Petitioners’ claims. Petitioners’ claims are based entirely upon their belief that if judges are permitted to have free speech, judges will sacrifice people’s constitutional rights. Petitioners have presented no evidence that appointed judges are better judges than elected judges.

Your Honor, Petitioners’ many counsels are far from unanimous in their requested relief. The Quie Commission had three separate opinions, two of which were fairly divided. The Minnesota State Bar Association had a different system, and the judges have not adopted the MSBA’s position. This is in spite of the fact that, prior to today’s hearing, democracy has never had a hearing nor a chance to plead its case.

Lastly, protection of constitutional rights is not the sole responsibility of the judicial branch. If the courts are forced to declare laws unconstitutional, it is only because the legislative branch has passed an unconstitutional law and the executive branch is enforcing it. If changes are needed, the legislative and executive branches must begin to accept responsibility for protecting people’s rights.

Your Honor, I ask that you decide the case on the principles of law that govern any of your other decisions. At this time, Petitioners’ claims fail for numerous and weighty reasons.

Thank you, your Honor.

Contrary to what the Chief Justice says, now is not the time to be united. Now is not the time for “heavy hitters” to plead their case before the Legislature. Now is the time for zealous advocacy on all sides before a neutral factfinder. Let’s have this debate in the judiciary -- the only branch of our government dedicated to fact finding.

-- David L. Ludescher, Northfield

Any thoughts?

Minnesota Lawyer is currently planning to take a look at 10 interesting trends in the law during the last decade. What 10 trends have most affected the law -- how have things changed in the last 10 years in that area -- and where are things going. If you have any suggestions for trends we should focus on, please let me know.

The Ordway is apparently getting into the field of legal education. It just announced its 2008-09 season, and, starting in late April 2009, the theater will host the musical version of the Reese Witherspoon movie "Legally Blonde." For those who missed this legal classic, it features a ditsy Malibu Barbie-type California sorority sister who enrolls in Harvard Law School to win back her old boyfriend. She winds up trying a murder case as 1L and, in a pivotal scene, using her hairdressing knowledge during a cross-examination to discredit a witness and win.

OK, OK, it isn't "To Kill a Mocking Bird," but I must admit the movie gave me a chuckle or two. I have not seen the musical version yet, but, if you recall the character Billy Flynn from the musical "Chicago," you know it isn't the first time a lawyer has been made to sing and dance in a Broadway-style production.

If the Ordway wants to get a lot of lawyers to go to "Legally Blonde," it should apply for CLE credits. If they call it a "Law and Literature" program and agree to provide attendees with free chocolate chip cookies, they may just be able to pull it off ....

A San Francisco-based legal writer and editor has a blog that -- along with writing tips -- features the tortured attempts at the written word that are perpetrated on a regular basis not only by lawyers, but also by their law firm employers.

Take this doozy from a law firm’s want ad:

Law firm experience is required as is excellent writing skills.

Or this roundabout lesson in copyright infringement:

In short what the amendment provides if a user can not find the work’s creator and they tweak the work they have cart blanc to use an artist’s work without any fees being paid even when the creating artist identifies themselves they do not even have to stop infringing.

With its Latin, legalese and other jargon, the writing produced by lawyers is impenetrable enough as it is. Is a basic grasp of English grammar too much to ask?

Like everyone else, I am grieved by the deaths of four children in a van-school bus accident in Cottonwood last week. I am also grieved by the demagoguery that this accident is giving some an excuse to exhibit. By way of example, a reader of the popular Powerline blog, which is run by two local lawyers and a Washington, D.C., lawyer, placed as a comment to a Feb. 21 John Hinderaker post ("Illegal alien caused fatal bus accident") a photo of open train cars packed with people standing in them along with the caption, “We need to round up the illegals. We need to put them on a train.” To me, it looks like a picture of prisoners heading for a concentration camp. Offensive photo and language aside, the author of the comment -- along with much of the media and the original post on Powerline -- wrongly focuses on the fact that the driver was in the country illegally. Illegal immigration is a serious social issue, but it doesn’t cause car accidents.

I call on lawyers, who are skilled at logical reasoning, to bring some honor to the discussion by challenging the connection between immigration law and the deaths of these children. Let the legal process against the driver take its course. Jesse, Hunter, Emilee and Reed don’t deserve to be used to further other people’s hatred.

The Minnesota Supreme Court is currently considering whether to allow cameras in the courtroom, and some trial judges are concerned. Are they worried about Jimmy Olsen coming in and snapping a picture for the Daily Planet? Hardly. A Mike Wallace wannabe kicking in the courtroom door with TV lights blazing? Not even close. No, it's the pernicious blogger who has struck fear deep into the hearts of some of the state's judiciary.

One of the judges' concerns I have heard raised about cameras in the courtroom is the specter of the "unshaven blogger" coming in with cell phone camera at the ready. Apparently the judges are worried about being made to look sinister or downright ridiculous by a slip of the tongue or out-of-context snippet of dialogue winding up as a video posted on a blog or YouTube.

It is an interesting twist to an old conflict between the Fourth Estate and the third branch of government. It used to be the argument was that cameras in the courtroom were too intrusive. Now, with technology giving absolutely anybody the ability to take pictures and video unnoticed at the drop of a hat, the problem might be that they are not intrusive enough

Meanwhile, Court Communications Director John Kostouros last night at the New Media Ethics Forum in St. Paul that judges and court personnel are still trying to figure how to deal with online media access issues.

It's a whole new world.

Please note this is a corrected version. See comments for details.

While law schools nationwide have been grappling with recent declines in the number of enrollments from diverse candidates, Minnesota's four law schools have been pretty much holding steady and, in one case, substantially increasing its pool of diverse students.

The University of St. Thomas School of Law was one of about 20 schools in the country to report a recent increase in minority enrollment of 20 percent or more, according to Cari Haaland, the school’s director of admissions. First-year enrollment of minorities has nearly doubled since UST Law started in 2001 -- going from about 8 percent to 15 percent in 2007, she said.

Locally, the University of Minnesota Law School is in the lead for diverse enrollments, with about 16 percent. UST Law is second at 15 percent. Hamline University School of Law is third at 13.3 percent. And William Mitchell College of Law is fourth at 11 percent.

All of these schools are pretty aggressive about recruiting diverse candidates to come to Minnesota (and to stay in Minnesota), but it can be tough when you are competing with more glamorous markets that don't have sub-zero winter temperatures. So given all that, I was pleased to hear Minnesota is bucking the national trend. All of these schools have strong plans to continue working toward a more diverse student body.

For more, check out the article from this week's Minnesota Lawyer, which is the first part of a two-part special focus on diversity in the law.

I was pleased to see that Tilda Swinton won an Oscar for her superb portrayal of the career-obsessed general counsel of an agricultural products company in “Michael Clayton.” As I have blogged about before, Swinton’s character, Karen Crowder, is a perfect example of someone whose priorities are out of skew.

One excellent scene juxtaposes a video crew interviewing Crowder on taking over the general counsel job from her mentor (who has been kicked up stairs to the boardroom) with earlier scenes of Crowder nervously preparing for the interview as she gets dressed. In the interview, Crowder appears, calm, poised, professional and completely collected. In the preparation scenes, she’s a mess, practically having a panic attack as she grapples with how she will answer the questions. The question that gives her the most challenge is the obligatory one that has to do with life balance. She comes up with the clearly erroneous conclusion that her job is her life balance.

Trying desperately to protect her company and her mentor from some potentially devastating revelations in a class action lawsuit, Crowder crosses the ethical line. Ultimately, she goes so far as to become complicit in a murder and an attempted murder.

Despite Crowder’s obviously wrong choices, Swinton makes the character sympathetic. You can’t help thinking that things would have turned out a lot better for her if she just had more balance in her life.

It put me in mind of Lawyers Concerned for Lawyers, the local group that aids members of the bar with their life issues. LCL is currently seeking a funding increase that would be paid for by adding another $8 on the fees attorneys pay to maintain their licenses. (Minnesota Lawyer has a story this week, password required.) The money would be used to allow LCL to maintain and expand on its excellent work. Sounds like an idea worthy of $8 to me.

After an interesting week at the Minnesota Attorney General’s Office, I think the parties would best be served by taking a time out, reassessing their positions and trying to find some common ground to work on together.

While you can certainly disagree with the methodology, Attorney General Lori Swanson took an important step in confirming that there are a significant number of staff members with management-related concerns. I think the office should have a chance to work those out internally. It’s in the common interest of both sides to do so rather than letting anyone make political hay out of it.

And so, for the time being, we will return to our regularly scheduled topics, such as the size of Larry Craig’s briefs.