Our blog has moved, and is new and improved.

You should be automatically redirected in 3 seconds. If not, visit
and update your bookmarks.

Friday, June 27, 2008

A Supreme start to the summer

With this post we bring to a close the eventful week of lawyers, guns and money at the high court.

Have a good weekend!

A chance to combat animal fighting

If you are a prosecutor, judge or law student -- and you care about animals -- you have a chance to do something about the sad and serious problem of illegal animal fighting. (The problem gained national attention with the Michael Vick dog-fighting case, but organized animal fighting also includes cockfighting and hog-dog fighting.)

I recently received an e-mail requesting my help in spreading the word about a unique training program being held by the Humane Society University in six cities across the country, including Minneapolis. Being a reporter and an animal lover, I can’t turn them down.

It seems that the university, the training arm of the Humane Society of the United States, is looking for people -- particularly those in the legal and law enforcement communities -- to participate in its Illegal Animal Fighting Investigations workshop. Participants will learn history, motivations and paraphernalia involved in illegal animal fighting, as well as how to conduct interrogations when illegal animal fighting is suspected. Among the course topics are:
  • Matters concerning search warrants, performing investigations, and recognizing and logging evidence at an arrest or raid;
  • Disposition of confiscated animals;
  • Preparing a case for court;
  • Recognizing street fighting and the best means for making an arrest;
  • Animal fighting connection to other felony crimes;
  • Knowing, interpreting and applying the law; and
  • Internet investigation of animal fighting.

Because of the confidential nature of the material presented, enrollment is restricted to prosecutors, judges, law students, law enforcement officers, animal control officers, humane investigators and veterinarians employed by a sheriff's, police or health department.

The Minneapolis workshop will take place from 8:30 a.m.-5:00 p.m. on August 12, 2008, at the Animal Humane Society. Tuition is $60. Register online by July 29, 2008.

For those of you who attend, I thank you -- and I’d love to hear about the experience.

Group Think

While the recent revelation that the Department of Justice may have displayed .... errr, partisanship? ... in its hiring Under U.S. Attorney Alberto Gonzales hardly came as a shock, it was an interesting twist to learn that an affiliation with a a few well-respected local legal groups may have actually hindered applicants' chances of being interns or getting into the honors program by getting them red flagged as "liberals." (Click here for prior post on the topic.)

Some argue that the Claude Rains-like protestations of those "Shocked, SHOCKED" to find ideology mattered at the DOJ to be disingenuous and over-the-top. They maintain that during the Clinton Administration, for example, politics were not completely irrelevant to hiring decisions for the programs. Without passing on the truth or falsity of those assertions about past administrations (primarily because I have no solid evidence one way or the other), I still have never been much of a fan of the "everybody's doing it" defense.

This much is perfectly clear to me: "Deselecting" otherwise highly qualified individuals from DOJ service merely because they were affiliated with prominent legal groups that someone may have perceived as "liberal" is wrong. Period. And yes, it was also wrong when the media distorted and demonized the fact that then-Supreme Court nominee John Roberts and then-U.S. Attorney Rachel Paulose happened to be members of the perfectly fine (and, yes, conservative) Federalist Society. However, as my mother was wont to say in my childhood days, two wrongs don't make a right.

It's unfortunate that guilt-by-association tactics are once again in full bloom. If we don't watch ourselves, we may become a society where the only reasonable thing to do is to belong to no group at all that is either socially active or makes us think. Fortunately, the high-definition flat-screen digital television has arrived just in time to help ease the transition. I only pray that you remember to keep it strictly tuned to the "correct" channels. Otherwise, you may one day find yourself "deselected" for something.

Thursday, June 26, 2008

Would you know it if you saw it in Minnesota?

Much has been said about this obscenity trial in Florida, where the defense hopes to use Google search queries to validate community standards.

If you haven't explored Google Trends yet, you should — it's simply fascinating. With this fun little tool you can find out what people are searching for (in Google, of course) broken down by geography.

For example, let's say you want to know who's searching for lutefisk. Turns out that — surprise! — Norway catalogues the most searches. Now let's narrow that down to just U.S. searches. The accompanying graphs further show that curiosity about lye-soaked fish tends to spike during the holidays.

You can also compare the volume of several terms (separate them with a comma). Do Minnesotan's conduct more searches for pizza or hamburgers? Pizza, by far. John McCain or Barack Obama? Now you know.

Seriously, the fun never ends. To see how Minnesota would fare in the obscenity case, check out Bob Collins' post on his News Cut blog. As for me, I really should be getting back to work.

Wednesday, June 25, 2008

Figuring Faegre's fee

It's difficult to ascertain what the per-partner take will be for Faegre and Benson lawyers on the drastically reduced punitive damage award in the Exxon Valdez case. The verdict dropped from $2,5 billion to about $500 million (or by about 80 percent) with one swipe of the high court's pen. (Interest makes the verdict about $1 billion.)

It would not be too out of line to say that partners will likely get somewhere around 20 percent of what many of them thought they would get yesterday. The following is what MinnPost had to say about the fee topic, which is the most reporting I have seen done on it so far:

Brian O'Neill, Faegre partner who spearheaded the litigation, said a formula was devised years ago to figure out fees to the lawyers, based on their involvement in the case and years with the firm, and the amounts of money that go to the thousands of fishermen, based on the size of their businesses before the spill.

With this decision, they all know that the X in the formula now equals $1 billion. Mechanisms are in place to cut checks within 60 days, O'Neill said.

"At the time of the first decision, Faegre & Benson went out of its way to tell partners not to count on this money and to live their lives as though it never happened," said David Lebedoff, author of "Cleaning up — The story behind the biggest legal bonanza of our time," published in 1997. "That was very wise advice." (Click here for more)

Ouch. I suspect some plans for an early retirement went up in smoke with the decision. On the other hand, I'm sure there are a lot of lawyers in town who wouldn't mind getting even one of those reduced checks ...

My question is this: Since Exxon just saved itself several billion dollars today, can we expect to see that savings reflected in the prices we pay at the pump? I think we all know the answer to this query. It's not just the rocks around Prince William Sound getting hosed by Exxon ...

UPDATE 6/25: 11:57 p.m.:

The following comes from a Strib story on the fee award:

Faegre represented 2,600 people, the most of any of the law firms involved. The firm now stands to receive roughly $20 million to $25 million in fees out of total attorney's fees of approximately $200 million, according to early calculations. That's a fraction of what it stood to earn after the initial 1994 jury award of $5 billion in punitive damages, which an Appeals Court reduced in 2006 to $2.5 billion. The firm also will get about $4 million in out-of-pocket expenses.

Are you a card-carrying member of The Advocates for Human Rights?

Are you now or have you ever been a member of the ... Minnesota Advocates for Human Rights (a/k/a The Advocates for Human Rights)? The Immigrant Law Center of Minnesota? The Minnesota Center for Environmental Advocacy? The Minnesota Justice Foundation?*

Well then, to paraphrase Jeff Foxworthy, you might just be a liberal -- at least under the into-the-rabbit-hole logic apparently in play at the Department of Justice during the tenure of Alberto Gonzales. The Minnesota Independent (formerly known as the Minnesota Monitor) reports today that affiliation with one of those those prominent local legal organizations could get a qualified candidate deselected for the Attorney General’s Honors Program and the Summer Law Intern Program.

*Also worthy of note: "The Innocence Project" merited a listing, which presumably includes the Innocence Project of Minnesota.

Exxon-Valdez oil spill ruling a big disappointment to Faegre, clients

Today's not a good day for Faegre & Benson to say the least. The U.S. Supreme Court vacated the $2.5 billion punitive award in the Exxon Valdez oil spill case, finding it excessive. The court found that under maritime law the most that could be awarded is $507 million.

For those of you keeping the score, the jury originally awarded $5 billion in punitives, which was reduced in the appellate process to the $2.5 billion award. While $500 million is still nothing to sneeze at (well, maybe for an oil company these days it is ...), the new amount has got to be a huge disappointment to Faegre, the other law firms involved and, of course, the approximately 40,000 fishermen they represent. (Although interest will make the award about $1 billion.)

It's worth pointing out that things could have been worse. The justices were equally divided on whether maritime law permits punitives at all for the acts of agent. Possibly fortunately for the plaintiffs, Justice Samuel Alito did not participate.

Here's a quote from the lead Faegre lawyer, Brian O'Neil, on the Wall Street Journal Law blog: “We’re extremely disappointed that the award was reduced. The idea that knowingly putting a drunk in charge of a supertanker through Prince William Sound, Alaska over the course of two years is not reprehensible is a ridiculous position to take.” (Click here for more.)

The case, which has been winding through the legal system for nearly two decades, represents a vast commitment of time and resources for Faegre and the 66 other law firms that were involved. It now appears that the promise of a huge payday was illusory. (The fee agreement was for 22 percent, which would average out to a little less than $3.3 million a firm by my math. Faegre had an important role and likely will a get a substantially bigger cut than that, but it will be lucky if what the firm ultimately gets covers the costs of putting together the PowerPoints for the case. I suspect there will be a lot of cancelled boat orders emanating from Faegre today.)

It's most devestating for the plaintiff fishermen, of course.

UPDATE 6/25: 11:57 p.m.:

The following comes from a Strib story on the fee award:

Faegre represented 2,600 people, the most of any of the law firms involved. The firm now stands to receive roughly $20 million to $25 million in fees out of total attorney's fees of approximately $200 million, according to early calculations. That's a fraction of what it stood to earn after the initial 1994 jury award of $5 billion in punitive damages, which an Appeals Court reduced in 2006 to $2.5 billion. The firm also will get about $4 million in out-of-pocket expenses.

Court: employers can use state funds to fight unions

Would a recent U.S. Supreme Court ruling lead to an increase of union-busting in Minnesota?

The decision, Chamber of Commerce of the United States et al. v. Brown et al., says that states may no longer restrict employers’ rights to communicate with their employees about unionization. The court found the state of California had wrongfully denied employers the right to curtail and counteract some union organizing actions.

The Supreme Court rejected California's attempt to encourage unionization through regulatory spending restrictions. The court's decision invalidated key provisions of California AB 1889, enacted in 2000.

The Court determined that the purpose of AB 1889 was to silence employer speech about unions by subjecting them to segregated accounting systems, increased recordkeeping requirements, treble damages, private rights of actions and attorneys fees.

The decision could impact a Minnesota state law which, like the invalidated California statute, restricts state funds from being used by employers.

Tuesday, June 24, 2008

Court of Appeals gets three new judges

Governor Tim Pawlenty has announced the appointment of three new judges to the Minnesota Court of Appeals: Louise Dovre Bjorkman, Michelle A. Larkin and Lawrence “Larry” B. Stauber, Jr.

Bjorkman is an attorney and partner in the St. Paul law firm of Larson King. She was a Ramsey County District Court judge from 1998 to 2005. Bjorkman fills an at-large vacancy that will occur with the retirement of Judge Bruce D. Willis on Sept. 5, 2008.

Larkin is a 10th Judicial District trial court bench judge in Wright County. She will fill the at-large vacancy that occurred with the shift by Judge Christopher J. Dietzen from the Court of Appeals to the Minnesota Supreme Court on Feb. 19, 2008.

Stauber is a senior attorney and managing partner with the Duluth law firm of Stauber and Lien. He will fill the vacancy on the appellate court for a resident of the 8th Congressional District that occurred with the retirement of Judge R. A. “Jim” Randall on April 4, 2008.

Monday, June 23, 2008

Some judges getting fed up with legislative budget cuts

Minnesota Lawyer has an interesting piece this week on the Judicial Council debate last week on whether or not to impose a moratorium on all civil jury trials. The discussion occurred at a Judicial Council meeting held during the Minnesota State Bar Association's annual convention in Duluth. The council ultimately rejected the idea, but not before some frustration was vented about lawmakers' treatment of the courts in the budget process. (Click here to see the article.)

Carlin was at the center of pivotal First Amendment case

Comedian George Carlin died of a heart attack yesterday at age 71. He’ll be remembered not only as an iconoclastic, irreverent chronicler of the human condition, but also the focal point of an interesting free-speech case.

In 1973, New York radio station WBAI-FM played a notorious recording of Carlin’s in which he dissects (at length) the seven words that can't be said on television. A man driving with his young son heard the routine and complained to the Federal Communications Commission, which fined WBAI.

The station then sued the FCC. The case eventually went to the U.S. Supreme Court, which, in a 5-4 decision, found in favor of the FCC’s sanction. (The case is Federal Communications Commission v. Pacifica Foundation et al.)

Although the court ruled against WBAI, Carlin continued to be a strong proponent of free speech and freedom from government meddling -- and ironically, some of those "bad words" can now be found on television with little effort.
The case that Carlin helped spark is a staple of First Amendment curricula at many law schools. In fact, today we were reading about an attorney in Connecticut who teaches a communications law class. He features Pacifica, and then brings the course to a close by choosing a student to stand and recite the seven words to the rest of the class.

Justice delayed and denied

I was glad to see the public-defense crisis got some ink from the Star Tribune over the weekend. In an unusual move (for us anyway) demonstrating the importance of the subject, Minnesota Lawyer dedicated almost its entire front page to the topic last week. (Click here and here for the two page-one stories Minnesota Lawyer ran.) The Pioneer Press has also had excellent pieces on the public-defense crisis written by Ruben Rosario ("State public defender cuts imperil us all") and Ramsey County District Court Judge Edward Cleary ("Public-defender cuts undermine justice system, and we'll all pay.")

We hear the alarm bells raised quite a bit on various topics these days -- so much so that we can grow tone death to the constant blare of the sirens. However, I cannot emphasize enough that this is not a "run-of-the-mill" problem for the justice system. Not only do these cuts endanger access to justice for some of the state's poorest citizens, but they also clog the wheels of justice for everyone else. And this happens at a time when the courts are dealing with a budget cut of their own, creating a "perfect storm" scenario.

In a decade of covering the state's justice's system, I can recall no other fiscal measure as irresponsible and wrongheaded as the public-defense budget cuts. What a terrible 150th birthday gift to the citizens of Minnesota.