Minnesota Lawyer Blog

Even when you finally get to sink your harpoon into the great white whale, it usually takes a while for your diligence to pay off. The bigger they are, the harder they fall, after all.

Witness poor Faegre & Benson attorney Brian O'Neill (picture on right). O'Neill is mentioned in today's Star Tribune for his representation of Alaska fishermen and residents in the lawsuit against Exxon Mobil Corp. over the infamous Valdez oil spill nearly two decades ago.

Originally, O'Neill's clients were awarded $5 billion in punitive damages. That amount was lowered to $4 billion, raised to $4.5 billion and lowered back down to $2.5 billion in the tortuous history of post-trial wrangling. Now the U.S. Supreme Court has agreed to hear the case in order to to decide if $2.5 billion is an appropriate award.

O'Neill definitely is a contender for quote of the week for putting the lengthy litigation into perspective: "I was 41 when I started this case and now I'm 60," he told the Strib.

It might be OK that O'Neill could be retirement age before his firm gets its cut. The fee is likely to be one of the largest in state history unless the punitive-damage award is completely eviscerated. One can only imagine what O'Neill's share would be if Faegre does indeed get a nine-figure payday out of this. It almost certainly would be enough to retire on -- you know, once you add in Social Security and all ...

The Wall Street Journal blog has visited and revisited the story of the lawyer bride who is suing her florist for messing up the floral arrangement for her wedding. For those of you who missed the story in the news, the bride ordered $27,435 worth of flowers that, when they were delivered on her wedding day, she thought were not up to snuff. The peeved bride, alleging that the gaffe made her Big Day somewhat less than perfect, is seeking $400,000 in damages. One of the owners of the floral shop reportedly said: “My father used to tell me, ‘Don’t deal with lawyers.’ Maybe he was right, God bless his soul.”

Is it a case of a bridzilla running amok with the justice system or a legitimate grievance? Most of the posts on the original WSJ took the former view. The second WSJ item on the subject included excerpts of a comment received in favor of the bride, which led to 109 more comments, again mostly lashing out at the bride.

I have no idea of the relative merits of the bride's suit. However, when the story made the rounds on the Web as just "another frivolous lawsuit," it put me in mind of an Oct. 1 letter that Minnesota Association for Justice Executive Director Tim Adams wrote to the Star Tribune. The letter, penned as a response to an earlier commentary that the Strib published on the infamous "pants suit" against the Washington, DC., dry cleaners, decried the use of such suits to make it appear that our civil justice system doesn't work.

"Should this case have gone to court? No. But should going to court remain an option for those who are hurt through no fault of their own or to address wrongdoings by large corporations? Yes," Adams wrote. (Click here for the full text of the letter, which had the brief bit of celebrity of being the Strib's "letter of the day.")

If lawsuits like the pants suit are de rigeur in our justice system, why would that one silly case from Washington, D.C., have gotten so much press nationwide? The truth is that cases like that get so much attention not because they are common, but because they are so rare. They do occasionally happen though, and, no doubt, will continue to do so. As the lawyer bride discovered when her wedding flowers arrived, it's an imperfect world we live in. To quote the '80s rock ballad by Poison, "every rose has its thorn."

Rochelle Olson has an interesting piece in today's Star Tribune on the lawyers handling the 35W bridge collapse litigation ("Lawyers seek cause in preparing for lawsuits").

As we have blogged here before, there is a group of local lawyers handling some of the victims' cases pro bono, and then there is Jim Schwebel (right) and his firm, Schwebel, Goetz and Sieben, handling the cases of a number of the victims -- reportedly 19 -- under the the typical contingent-fee arrangement.

While the pro bono effort is laudable in that it will help some of the victims, I also do not have any problem with a good personal-injury firm charging for representation. It's what they are in business to do, isn't it?

That said, I am not sure Schwebel is doing the image of P.I. lawyers much of a favor by having quotes like the one that concludes the Strib piece: "We wouldn't be on the top floor of the IDS building if we made a lot of bad judgments as to which cases to get involved in," Schwebel humbly told the Strib.

Hmmm. So much for the meek inheriting the Earth. In any event, I thought Eva Gabor (left) in the theme song from the TV show 'Green Acres' expressed Schwebel's underlying sentiment far more eloquently: "I just adore a penthouse view/ Darling, I love you, but give me Park Avenue."

As a special extra for our blog readers, I am making the full-text of the editor's column from Monday's Minnesota Lawyer available on this site.

Does Nebraska’s long-arm jurisdiction reach into Heaven?

By Mark A. Cohen
Minnesota Lawyer Sept. 24, 2007

In case you missed the big news all over the Internet earlier this week, Nebraska State Senator Ernie Chambers has filed suit against God.

Chambers — who has a law degree, but is not admitted to any bar — filed the case pro se. Presumably, no lawyer could be found to play Devil’s advocate for him.

In his suit, Chambers alleges that the Supreme Being has caused “widespread death, destruction and terrorization of millions upon millions of the Earth’s inhabitants.” Asking for injunctive relief, he also says God has plagued the world with “fearsome floods ... horrendous hurricanes, terrifying tornadoes.”

Chambers filed the action after becoming upset by a suit filed against a federal judge that Chambers believed was frivolous. The Nebraska politician says his suit was filed to show that anybody can file a lawsuit against anybody.

Now I don’t mean to nitpick, but I am not sure that the Creator qualifies as just “anybody.” In fact, I am not sure if He (or She, if you prefer), qualifies as a person at all under the laws of the United States. But this is Nebraska after all. Besides, you can sue certain entities, such as corporations. For the sake of argument, let’s treat God as a nonprofit.

Since nonprofits and other corporate entities cannot represent themselves in court, God would have to hire a lawyer to represent Him if the Nebraska judge were to allow this ludicrous action to proceed. (Perhaps attorney Miles Lord would take the case. He has the right name for the job, anyway.)

While service of process would be tricky, Chambers had the good sense to ask it be waived. Chambers reasons that since God is omniscient, He has actual knowledge of the suit.

Anticipating a jurisdictional issue, Chambers argues that since God is everywhere, he can be sued anywhere. I suppose that if we do view God as a nonprofit, He is indeed “doing business” in Nebraska – although how much time He actually spends in the Cornhusker state is open for debate.

God’s lawyer could advance a couple of immunity arguments. For example, as the Supreme Sovereign, God would have a pretty decent sovereign immunity argument. He could also be legitimately found to have diplomatic immunity as the King of Kings. But let’s get by these thorny issues by saying that God decides to waive them.

Prior to discovery, it would be difficult to decide under which legal theory the case would proceed. Are the fires, floods and famines sent as intentional acts — as they are sometimes portrayed in the Bible and elsewhere — or are they side effects of a defectively created Earth? Under either scenario, Chambers’ case seems like a loser. Being omniscient, God could never actually be inattentive or otherwise negligent. And as goodness personified, he would not be able to commit the type of wrongful act that could be the basis of an intentional tort.

Putting all that aside, discovery with God would be something less than heavenly for Chambers. Since God knows everything, His response to even the most simple interrogatory would take an eternity to read. On the other hand, since God knows all, the defense would likely not make any discovery requests whatsoever.

The actual trial would be even tougher to conduct. As a child of God, every potential judge would have a disqualifying conflict of interest. And good luck finding a jury of God’s peers (although there are a number of $1,000-an hour Manhattan lawyers who no doubt believe themselves qualified).

Even if these problems could be surmounted and a trial were to be conducted, imagine how long it would take for God’s character witnesses to testify.

And what if God Himself wanted to testify in his own defense? How would He be sworn in? “I swear to tell the truth, the whole truth and nothing but the truth, so help me Me?”

I suspect any god-fearing jury would find in God’s favor. However, what would happen if, in some ungodly turn of events, Chambers actually won the case?

Not much. God would pretty much be free to go on doing what He has been doing since the beginning of time. It’s not like the judge could order God arrested for disobeying the court’s decree. Any law-enforcement officer who would try to carry out such an order would be best advised to dress for a trip somewhere very, very warm.

In short, I do not believe Chambers has a prayer with his lawsuit. To find the relief that he is looking for, he will have to appeal to a Higher Authority.

Mark A. Cohen is the editor-in-chief of Minnesota Lawyer. He can be reached at (612) 584-1531, or by e-mail at mark.cohen@minnlawyer.com.

I was watching Harvey Birdman, attorney at law the other night on Cartoon Network when it occurred to me — right after Top Cat got arrested for 'being a cat' — that there's nothing particularly funny about an incompetent judge.

To wit: Soo Chung and her husband Jin Nam Chung just closed their dry cleaning shop in Washington, D.C., after a two year legal battle with Administrative Law Judge Roy L. Pearson, who sued them for $54 million over a missing pair of pants.

Pearson lost, but two years of litigating the "pants suit" and the prospects of an appeal ultimately drove this South Korean couple out of business.

"This is a truly tragic example of how devastating frivolous litigation can be to the American people and to small businesses," attorney Chris Manning said in a statement.

Keep that in mind the next time you see Judge Gibber Jabber on Boston Legal.

So. Not. Funny.

Has your client been hurt in a car crash? Are you wondering who is to blame? Maybe the auto maker contributed to the injury by negligently designing the vehicle. But where, oh where, can you go to find out how safe your client's car really is?

Fear not! The Web has an easy answer for you. There is a website you can go to to determine how various vehicles perform in crash tests. (You can reach the site -- which is run by the venerable Consumer Reports -- by clicking here. The site includes interior and exterior videos of the selected vehicle crashing during a test so you can witness the damage first hand. (Warning: some crash-test dummies were hurt to make these videos).

For example, I tried a 2007 Saturn Ion and found out that, in the Insurance Institute for Highway Safety's crash-test results, it received an "acceptable" rating for frontal offset. However, it was rated "poor" for side impact -- regardless of whether the car was equipped with optional side airbags. Hmmm. Makes me wonder what you are paying for when you shell out all that extra money for side airbags.

In any event, whether you are trying to decide if you should file a product-liability action or just looking for a safe new family vehicle, the site is worth checking out.

Yesterday I visited an Itasca County courtroom to help out a friend and witnessed an extremely effective judicial process handled in a respectful and humane manner. I’m grateful for that demonstration of professional competence, especially after checking for legal news this morning.

I read that a state court judge in Nebraska has banned the word “rape” “victim” and “assailant” from a sexual assault trial, which seems like an unusual ruling. The putative rape victim responded by suing the judge for violating her constitutional rights, which also seems like an unusual move. A federal judge responded by issuing an order to show cause to the plaintiff/putative rape victim to demonstrate that her lawsuit wasn’t improper and frivolous, which seems like a smart move and was scheduled for hearing today.

But that’s not all. Nebraska Senator Ernie Chambers responded to the kerfuffle by filing a lawsuit against God to prove a point about frivolous lawsuits. This also seems like an unusual thing to do. Reportedly, Chambers is upset that the constitution requires that the doors to the courthouse be open to all, so he has sued God to show that anybody can be sued.

News reports indicate that Chambers’ lawsuit seeks a permanent injunction ordering God to cease certain harmful activities and the making of terroristic threats.

Chambers asked the court to waive personal service. "Plaintiff, despite reasonable efforts to effectuate personal service upon defendant 'Come out, come out, wherever you are,' has been unable to do so,'" Chambers said. The suit said that the plaintiff assumes God, being omniscient, will have actual knowledge of the action.

Chambers, it must be said, is not a lawyer, although he has a law degree from Creighton University. Otherwise, we assume he might be subject to professional sanctions. He has served nearly 40 years in the senate but is about to be term-limited out, so the voters won’t be able to make a point either. I guess they don’t call him the maverick of Omaha for nothing.

In 1993, an animated short film was released entitled, "The Wrong Trousers." The film starred two animated characters known as "Wallace and Gromit." The characters went from cult favorites to international animated superstardom when the makers of the film took home the Academy Award for best animated short film for that year.

A lawsuit playing out in Washington, D.C., has gotten a lot of national attention off (as you have probably guessed by now) a pair of trousers as well. In case you are one of the few who hasn't heard anything at all about it, the case involved a $54 million lawsuit against a custom cleaner over a missing pair of pants. The plaintiff claimed the cleaners had violated the Consumer Protection Act.

A blog on the Washington Post site (OFF/Beat) followed the suit, which it labeled "The Year's Most Frivolous Lawsuit." The blog even featured trial updates summarizing the testimony of witnesses.

Today we find out -- oh shock of shocks -- the judge has ruled in favor of the cleaners (Click here for AP story). The judge also reportedly ordered the plaintiff to pay the cleaners court costs.

The quips, no doubt, will abound. I offer the following two possible sum ups to the mix:

-- "Dry cleaner won't lose shirt over pants"; and
-- "Plaintiff whose pants were lost now loses suit." (Sorry, I couldn't resist ...)

But jokes aside, it's a shame when an already overburdened justice system is used so spuriously. It's a rare happening, but it reinforces negative stereotypes in the public mind when it does. By the way, in case, you had any doubts, the plaintiff was pro se.