Minnesota Lawyer Blog: 5/4/08

Friday, May 9, 2008

Gildea on the 'Wagon,' gets horse; Paul Anderson becomes acting justice

For those of you planning your Sesquicentennial activities, we received the following release from the courts today. We promise it didn't come pony express ...

Minnesota Supreme Court Associate Justice Lorie Gildea (right) will portray Minnesota’s first chief justice, Lafayette Emmett this Sunday, May 11, 2008, as part of a Minnesota Sesquicentennial wagon train drive to the Capitol in St. Paul. Justice Gildea will ride a horse provided by the St. Paul Police Department Mounted Patrol.

On May 11, 17, and 18, in the Supreme Court Capitol Courtroom, Justice Paul Anderson (left) will portray former Supreme Court Justice Loren W. Collins, who served on the Supreme Court from 1887 to 1904. On May 17, Justice Gildea will join Justice Anderson, portraying Martha Angle Dorsett, the first woman admitted to practice law in Minnesota.

The Sesquicentennial Wagon Train will drive from Cannon Falls to St. Paul, arriving on Statehood Day, May 11, to kick off Statehood Week. Justice Gildea will participate in Sunday’s final leg of the journey, which will begin at Fort Snelling, travel down Summit Avenue and continue to the Capitol.

Details of the drive can be found on the official Sesquicentennial website: www.mn150years.org/home.

“The First 50 Years of Minnesota Statehood” will feature former “Justice Collins” portrayed by Justice Paul Anderson reminiscing about Minnesota’s early years as a state. Justice Collins will describe arriving in St. Paul from Massachusetts in 1854, homesteading in Eden Prairie and Northfield, serving in the army in the 1862 Indian Uprising and the Civil War, serving in Alabama as a treasury agent after the war, reading for the law in Hastings, and practicing law in St. Cloud. Justice Collins will also describe his public service as St. Cloud’s mayor, a state legislator, district court judge and Minnesota Supreme Court Justice, as well as his unsuccessful run for Governor in 1904. Justice Collins’ appearance was organized through the efforts of the Minnesota Supreme Court Historical Society, the Minnesota Sesquicentennial Commission, and the Minnesota Historical Society.

The performance will take place in the Supreme Court Capitol Courtroom on Saturday, May 11, from 12 p.m. to 3 p.m., Saturday, May 17, from 11a.m. to 3p.m., and Sunday, May 18, from 12 p.m. to 5 p.m. The events are free and open to the public.

NTSB to I-35W bridge lawyers: Ain't nothing gonna' break our stride

Here's an interesting little tidbit from a story Minnesota Lawyer has posted about where the enactment of the I-35W bridge victims' fund leaves their litigation ...

The potential third-party defendants most often mentioned in the case are URS Corp., which inspected the bridge between 2004 and 2007, and PSA, the company that was working on the bridge when it collapsed.

If either or both of these companies are ultimately determined to be more culpable than the state for the bridge collapse, both the victims and the state will look to them for compensation. So, despite their recent success in the Legislature, the victims’ lawyers are continuing their preparation for trial. However, there is one big glitch.

“We’re waiting for the National Transportation Safety Board to graciously allow us to see the evidence,” said Minneapolis attorney Chris Messerly, who is representing some of the bridge-collapse victims pro bono. Noting that the board refused to hold a public hearing to discuss its conclusions on the bridge, Messerly added his own editorial comment: “Obviously they are afraid of something.”

Meanwhile, the NTSB has issued preliminary findings that point to a design flaw with beam-connecting gusset plates and heavy loads of construction equipment and material on vulnerable parts of the bridge. It has said that a public hearing would slow down the investigation.

Hmmm. Yes, I suppose things do tend to move faster when the opportunity for public input is removed. Phew! It's a good thing that federal agencies working on disaster sites have never been known to mess up ...

Last month, Rep. Jim Oberstar called the NTSB to task for its failure to hold a hearing. So far, the NTSB has spurned Oberstar's hearing demand. The agency's recalcitrance will make it difficult on trial lawyers trying to determine which, if any, of the potential third-party defendants their clients should consider suing. It's a terrible way of doing things that wastes the time of the victims, their lawyers, the court system and "innocent" companies needlessly subjected to the litigation process for the sole reason that the NTSB delays in releasing the evidence that would have exonerated them.

Tort reform in Minnesota

Five years ago, Minnesota amended its joint-and-several liability law to preclude plaintiffs from recover the full extent of their damages from defendants who are less than 50 percent responsible. I was wondering if any of our blog readers had any feeling as to whether that change had any impact. Post a comment or shoot me an e-mail at mark.cohen@minnlawyer.com if you have any thoughts.

Bar groups hold Declaration of Independence reception

I had the chance last night to check out the copy of the Declaration of Independence on display at the Minnesota History Center for the Sesquicentennial. It is truly an awesome experience to get an up close and personal view of one of the world's oldest copies of one of the world's most important historical documents. The ink hit the paper on that document on July 4, 1776 -- the day commonly celebrated as the birthday of the United States of America. And here was I looking at an original copy of the birth certificate.

I grew up in Massachusetts, where colonial history is thick in the air. (I even had my own tri-cornered hat!) It's easy to view the figures of that time as bigger than life -- demigods in our pantheon of democracy. But they were human beings who had no idea what would happen when they signed their names to that "seditious" document. In an alternate history where the British won the war, the text books would tell us that the "Founding Fathers" were a group of radical separatists who were all hung for treason.

William Mitchell College of Law Professor Mike Steenson gave a nice spiel at the reception for the Declaration last night describing the history and what a revolutionary act it represented. Last night's reception was sponsored by the MSBA, RCBA, Federal Bar Association and Minnesota Lawyers Mutual. (As I have mentioned before, our parent company, Dolan Media, is the presenting sponsor for the Declaration, which will be here through the Sesquicentennial festivities. Click here for a Strib piece written by Dolan Media's founder and chair on the significance of the document.)

It seems obvious now the Founding Fathers took the right path, but it wasn't so obvious then. What was obvious was that it was a dangerous path. It's interesting to contemplate as you view a copy of the Declaration printed when the result of their actions was far from certain. What would you have done?

Thursday, May 8, 2008

Minnesota Lawyer honors Up & Coming Attorneys

We're hosting our Up & Coming Attorneys lunch celebration today at Hyatt Regency Minneapolis.

We hope to see you there. But if you can't join us, here's a recap of Minnesota's newest legal talent:

David E. Ahlvers Lindquist & Vennum, P.L.L.P.
Lacee Bjork Anderson Special Counsel, formerly The Esquire Group
Kathleen A. Austin Oppenheimer Wolff & Donnelly, L.L.P.
Andrew M. Baese Briggs and Morgan, P.A.
Arthur G. Boylan Leonard, Street and Deinard, P.A.
Anne L. Bjerken Gray Plant Mooty
Christina K. Brusven Fredrikson & Byron, P.A.
Benjamin Butler Public Defender's Appellate Office
Aimée D. Dayhoff Winthrop & Weinstine, P.A.
Kevin M. Decker Briggs and Morgan, P.A.
Tracey Holmes Donesky Leonard, Street and Deinard, P.A.
Erika N. Donner Kuhn Law Firm, P.L.L.C.
Amy R. Freestone Faegre & Benson, L.L.P.
Rachel C. Hughey Carlson, Caspers, Vandenburgh & Lindquist
Lee A. Hutton III Lommen, Abdo, Cole, King & Stageberg, P.A.
T. Nicole James Ameriprise Financial, Inc.
Jennifer G. Lurken Larson • King, L.L.P.
Maggie Mahoney Tobacco Law Center
Kimberly G. Miller Robins, Kaplan, Miller & Ciresi, L.L.P.
Andrew P. Moratzka Mackall, Crounse & Moore, P.L.C.
Ryan L. Nilsen Bowman and Brooke, L.L.P.
Shanda K. Pearson Bassford Remele, P.A.
Sarah E. Ruter Best & Flanagan, L.L.P.
Jeffrey S. Sieben Sieben, Grose, Von Holtum & Carey, Ltd.
Christopher Wendt Mayo Clinic

You can read more about the 2008 Up & Coming Attorneys in a special section of Minnesota Lawyer on Monday, May 12.

Wednesday, May 7, 2008

Up-and-Coming Attorneys to be feted tomorrow

Minnesota Lawyer will hold its annual Up and Coming Attorneys awards luncheon tomorrow at the Hyatt Regency in downtown Minneapolis.

The 25 honorees -- all admitted to the bar within the last 10 years -- are an impressive group of newer lawyers who have all stood out from the crowd. Personally, it's one of my favorite events because it gives us the chance to get a glimpse at the future of the profession. And, I'm pleased to report, it is invariably an uplifting experience.

You can see a list of this year's honorees by clicking here. The accomplishments of these outstanding newer lawyers will be described in a special section that will accompany Monday's edition of Minnesota Lawyer.

Foul-mouthed clients can make a #@$ mess for lawyers

What's a lawyer to do when his client won't stop swearing? That's the question Chicago attorney Joseph R. Ziccardi is trying to get a federal judge to answer.

Ziccardi was hit with sanctions totaling over $29,000 by U.S. District Judge Eduardo C. Robreno after Ziccardi's client, Aaron Wider, managed to use the f-word (or variations thereof) 73 times during a deposition. Ziccardi didn't help his own cause by chuckling at his client's profanity and failing to discourage him to clean up his act. Ziccardi is now asking for permission to drop the client and begging for the sanctions to be lifted.

Wider's loose-tongued ways might sound excessive until you learn that the 73 f-bombs were dropped over the course of 12 hours' worth of depositions. What's one effenheimer every 10 minutes? The film Scarface contained the big daddy of cuss words 226 times in only two hours and 50 minutes.

Tuesday, May 6, 2008

Prosecutors behaving badly -- Ohio edition

We had a blog item last week about a controversy in the Wisconsin Attorney General's Office, equating it -- at least a bit -- to the recent controversy in the Minnesota Attorney General's office (see "Turmoil in AG’s office, but not ours this time"). But then an astute reader called in and asked, what about Ohio?

Far be it for us to ignore the Buckeye state, where lawmakers and the governor are talking about initiating impeachment proceedings against the state's AG. Unlike Minnesota, that situation involves a sexual-harassment scandal. (For one thing, Ohio AG Marc Dann acknowledged having an extramarital affair with a staff member whom he has refused to identify.) However, Dann's management of the office is also significant factor. An investigation found an office rife with inappropriate staff-subordinate relationships, heavy drinking and harassing and threatening behavior by a supervisor, according to the AP.

A good Sesquicentennial? That's self evident ....

The Declaration of Independence is now in town, so let the Sesquicentennial festivities begin!
Politics in Minnesota has a video chronicling the arrival of one of the oldest extant copies of the historic document to our fair state. (Click here to see the video.) This copy of the Declaration was one of 200 produced on July 4, 1776. (Only 25 are known to have survived -- and only this one travels.)

The Declaration flew in yesterday accompanied by two security guards and its handler, Christie Manning. It will be on display at the Minnesota History Center through the Sesquicentennial celebration. The declaration was brought to Minnesota courtesy of Dolan Media, which is the parent company of Minnesota Lawyer, Finance and Commerce, the Legal Ledger (Capitol Report) and Politics in Minnesota.

Flying around with the Declaration would be an interesting job. What does it say when the customs agent asks if it has anything to declare? ("Why, yes. We hold these truths to be self evident ...") By the way, the Declaration gets its own first-class seat -- although I assume it declines the complimentary cocktail ...

I hope you all get a chance to see the Declaration while it is here. It's rare to be able to forge such a close link with the Founding Fathers. It's definitely an opportunity that should be taken advantage of -- particularly given that it's free.

No new trial where state's transcript was erroneous

The Minnesota Supreme Court recently ruled that where an incorrect transcript of a statement the defendant made to police was introduced at trial, the defendant is nevertheless not entitled to a new trial in the interests of justice. The case, State v. Green, was handed down last week.

The case involved a particularly nasty issue -- whether a father improperly touched his 4-year-old daughter when he was helping her clean up after swimming in a lake. The jury, which ultimately convicted the defendant of both first- and second-degree criminal sexual conduct -- had received a transcript of the defendant's alleged conversation with police. According to the transcript, in response to the question, "Where did you put your fingers?" the defendant replied: “I suppose in.” Later the defense argued that the statement was “I suppose um.”

What’s disturbing is that the state conceded the transcript was erroneous, but argued that it was the defendant’s fault that it went in. The defendant was originally only charged with second degree criminal sexual conduct, which didn’t require penetration, so the defense attorney didn’t focus on that statement.

The court determined that the interests of justice didn’t require a new trial, essentially because there was other persuasive evidence against the defendant. (The court also noted the defense had use of the tape of the interview with police.)

Justice Paul Anderson, joined in dissent by Justice Helen Meyer, wondered what could be a stronger case for a new trial “in the interests of justice” than this one, where “the state’s transcription error changed a meaningless utterance into a confession of the defining element of the crime.”

A new trial would be expensive, but other than that I can’t see the downside of granting it. The burden to the state is a small price to pay to ensure a fair trial. And if the other evidence against the defendant really is so compelling, the state shouldn’t be reluctant to retry the case.

Monday, May 5, 2008

Swenson to be elected chief in Hennepin

A much-lauded jurist will be elected today as chief judge of Hennepin County District Court. Judge James Swenson, who has served the last two years as assistant chief, was scheduled to be elected today without opposition. Judge Denise Reilly will succeed him as assistant chief.

Swenson has served on the bench since 1995 and is up for election in the fall. Last year he received the Foundation for Improvement of Justice 2007 Paul H. Chapman Award for his work in Family Court by promoting early resolution of cases involving children and families through strategies such as Early Case Management and Early Neutral Evaluation programs.

He has also received the Minnesota District Judges Association’s Award for Outstanding Service to the Judiciary and the Anne V. Simonett Award as the 4th Judicial District Employee of the Year for his work in developing alternative dispute resolution techniques.

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