Minnesota Lawyer Blog

Few residents in the areas of southeastern Minnesota hit by flash floods last weekend had flood insurance on their homes. In the two hardest-hit counties -- Winona and Houston, total population 70,000 -- only 196 flood insurance policies have been issued for homes and businesses, according to the Federal Emergency Management Agency.

Insurance experts are predicting that many homeowners in the area who had homeowners insurance but not flood insurance will end up defaulting on their home loans. The cost will be absorbed by lenders, and the homeowners will have their credit ratings adversely affected by the defaults.

There are laws on the books that provide residents in especially flood-prone areas financial incentives to move away or elevate their homes. As the cost of rebuilding Minnesota’s flooded areas starts to mount, banks, mortgage lenders and insurers could start lobbying for compulsory flood insurance in areas such as southeastern Minnesota. Should homeowners in such areas, where floods are severe but rare, be legally compelled to own flood insurance?

The next time you feel pressed by a member of the Minnesota bench, keep one thing in mind: It could be worse; you could practice in Ohio.

A public defender in the Buckeye State recently found himself arrested after he refused to comply with a judge's order that he proceed to trial on a case he had been assigned the day before. Not wanting to try the case unprepared, the lawyer would not go forward and the irate judge had him hauled away for contempt.

Outraged criminal defense lawyers in Ohio and across the country have reportedly rallied around the defender. (For more, see "Judge has unprepared lawyer arrested" on the ABC News site.)

It sounds to me like this defender got a raw deal. I suggest we send him a hot dish with a file in it forthwith. ... (Actually, the defender was released after being detained five hours.)

All joking aside, this case does illustrate an important point: How overburdened the public defender system is. Fortunately, in Minnesota, our Legislature takes these concerns seriously. In their last session, lawmakers approved funding for 34 new public defenders. While this does not completely alleviate the problem locally, at least it's a step in the right direction.

Some of Minnesota’s trial lawyers have announced their intention to represent bridge collapse victims pro bono, and I applaud their generosity. But some of these lawyers are from small shops, and even Robins Kaplan Miller & Ciresi doesn’t grow money on trees (well, maybe it does). No expert witnesses, investigators or other litigation support people have, to my knowledge, stepped forward to say they will work for free.

How can the rest of the legal community support the pro bono lawyers? Should we? Are these cases more important than other pro bono cases that cost money? Are some events to raise funds to pay the costs in order? Should the Minnesota Association for Justice members start washing cars on Saturdays?

On a related note, actor Gary Anderson has announced his interest in supporting the pro bono effort. (MSBA convention attendees will remember him from his excellent portrayal of Clarence Darrow.) Anderson recently told me that he is returning to Minnesota in December and would like to donate a performance as a fundraiser for the litigation costs. I’ll be doing more to get this information to the trial lawyers and see if they want to make that happen. What else can we do?

Several local plaintiffs' lawyers recently set the bar buzzing when they made a highly unusual offer -- they would handle the cases of victims from 35W bridge collapse without taking a fee. (Under a typical fee agreement in a personal-injury or wrongful death case, the client would agree to pay the lawyer anywhere between a third and 40 percent of the amount recovered.)

The offer to take the cases pro bono surfaced not long after it had been announced that the Minneapolis personal-injury powerhouse firm of Schwebel Goetz & Sieben had signed up several bridge-collapse victims as clients. The Schwebel firm is not part of the pro bono effort and will represent its clients pursuant to a standard contingent-fee agreement.

One of the firms spearheading the pro bono effort is Minneapolis-based Robins, Kaplan, Miller & Ciresi, which, ironically, pocketed one of the biggest fees in state history a few years back when it got $440 million for handling the state's $6 billion tobacco settlement. The Robins firm has already signed up several several bridge victims as clients, none of whom it is charging a fee.

The pro bono representation offer has the potential to generate some positive PR for trial lawyers -- or at least avoid some negative PR. There are plenty of individuals out there -- some of whom have already posted on this blog -- poised to cast lawyers as vultures seeking to capitalize on the bridge tragedy.

On the other hand, while it would be easy to criticize the Schwebel firm for not waiving its fee, personal injury lawyers do have a right to make a living. And these are likely to be very complicated cases involving a web of immunity, damage-cap and statute-of-limitations issues. Plus, while what happened to these people is horrific, many individuals who suffer equally terrible injuries or deaths still have a legal fee extracted from their or their families' recoveries. Why shouldn't we be waiving fees in those cases as well?

I don't have any answers here, but think the situation raises some pretty interesting issues. (Minnesota Lawyer has a full coverage of the pro bono offer in this week's issue.)

I recently spent a day “shadowing” an Anoka County public defender, Jennifer Pradt, so that I could write an article for Minnesota Lawyer detailing the experience. It was an interesting, perhaps even “enlightening,” day. (Plus, anything that gets me out of the office and away from my computer for an entire day can't be bad!)

Contrary to the perception of many members of the general public, the clients Pradt met with that day weren’t bad people. They were all more or less regular folks who had been hauled into the criminal justice system because of some issue with chemical dependency (alcohol or drugs, often meth). They were all polite and most seemed quite appreciative of Pradt’s assistance.

Pradt told me a few days later that she too enjoyed the experience of having me follow her around for a day. She said it gave her a chance to think about why does the work she does. She was especially grateful that I didn’t bother with questions like, “How can you sleep at night?”

In fact, the question never even occurred to me. I have always had a healthy respect for Minnesota’s public defenders. During law school I considered it as a career choice myself before being steered toward the civil rights area instead. My experience spending a day with someone in the trenches of public defense has only enhanced my admiration for those who often face public scorn and derision for their valuable work. It’s a thankless job performed by lawyers who care about people and believe strongly that everyone is entitled to a good defense.

By the way, the article detailing my experiences shadowing Pradt will appear in the Aug. 27, 2007, edition of Minnesota Lawyer.

I finally caught the Dateline NBC show on the local murder case of Teri Lee -- the 3M employee whose ex-boyfriend broke into her house and murdered her and her new boyfriend.

As you recall, I blogged earlier that the show would be on last Monday (See "Bill Harper ready for his close up on NBC's Dateline"), but the program wound up being preempted locally by the weather coverage of the massive thunderstorms that we had here that day.

Kare 11 broadcast the Dateline on the case last night. Most of the coverage (I'd say about 99.5 percent) was devoted to the criminal trial. Harper, who is representing Lee's family in a negligence suit against the company that installed her (supposedly) state-of-the-art alarm did not appear on the show at all. Apparently Harper wasted his time talking to the Dateline crew, only to have the footage left on the cutting-room floor. Perhaps they could have fit more on the civil case in if they had just done one less advertisement for a hair-care product. But then again, that might be asking too much.

Some are calling for state lawmakers to establish a victims' compensation fund to provide some financial compensation to those affected by the 35W bridge collapse. For the precedent for such an action, one need only look to the victims' compensation fund set up by the federal government in the wake of 9/11. I think setting up such a fund is an excellent idea.

As it stands, the state's total exposure for all injuries and deaths stemming from the bridge tragedy is $1 million. There were 14 deaths and an as of yet undetermined number of people who received life-altering injuries. Officials say there were 100 or so cars they had to clear in the collapse area (90 of which have been cleared to date). If you divide that $1 million by even just the number of cars left at the bridge site, you get just $10,000 per car. It is unclear how the number of cars will ultimately correlate with the number of victims, but it gives you an idea of how paltry that $1 million cap is for an incident like this.

I think the state needs to take the initiative and set up a fund for the victims rather than trying to hide behind the liability cap -- not because it is legally required to do so (it isn't), but because it's the right thing to do.

How many law students dream of taking their place in the spotlight of a courtroom, and winning a tough case – or even overturning a prior decision? One student recently got that rare opportunity in the 4th U.S. Circuit Court of Appeals.

To be fair, the student in question was no greenhorn. Meghan Poirier, 28, is a West Point graduate and now a captain in the U.S. Army who is about to begin training in the Judge Advocate General corps. She handled the appeal as part of an appellate clinic at Wake Forest University School of Law.

Her client, John D. Mooney, was charged as a felon in possession of a weapon, which carries a mandatory minimum sentence of 15 years.

Poirier, a third-year law student, won a reversal of the conviction for a felon in possession of a firearm based on the defense the possession was justified.

Although all eight circuits to have considered the issue have allowed justification as a defense of felons found with guns, this is the first case in which the 4th Circuit has overturned a guilty plea and allowed a defendant to seek a trial based on the claim.

Presumably, the case will find a prominent place in Poirier’s resume.

Schwebel Goetz & Sieben has become the first law firm to make a court filing pertaining to the 35W bridge disaster.

The Minneapolis firm -- which has a well-known practice in the personal-injury and wrongful death areas -- has filed a petition in U.S. District Court in Minneapolis seeking access for two experts it wants to inspect the collapse site, according to the Star Tribune. The firm is reportedly representing three unidentified victims of the collapse and the families of two individuals who were killed. (Click here for the Strib article.)

Jim Schwebel told the Strib the firm wants access before the opportunity to examine the site is forever lost by the dismantling of the bridge's wreckage.

One Minneapolis lawyer estimated that potential claims from the collapse against private contractors and their insurers could yield $1 billion, the article says.

Former Minnesota State Bar Association President Jarvis Jones has secured his day in state court in Georgia, where he is suing five current or former employees of his former employer, The St. Paul Companies (now known as Travelers).

Jones has been suing his ex-employer for more than five years. He moved to Georgia while he was MSBA president to serve as regional vice president of the company's small commercial business unit, but was terminated in February 2002. He sued the company in the U.S. District Court in Minnesota for race discrimination and defamation, but lost in 2005 after a 10-day trial. (See "Jones loses race-bias suit against St. Paul Travelers," in the May 15, 2005, edition of Minnesota Lawyer, password required.)

Nine months after the verdict, Jones sued his ex-employer in state court in Georgia for tortious interference with contractual relations and interference with prospective business relations. (Jones had not raised tortious interference claims in the federal litigation.)

U.S. District Court Judge James Rosenbaum declined to enjoin the Georgia litigation under the federal Anti-Injunction Act, and the 8th Circuit affirmed last week. Because the tortious interference claims had not been actually litigated in federal court, Travelers should raise its res judicata argument in state court, not federal court, the 8th Circuit reasoned.

While this is a victory for Jones, it may prove short-lived. In his ruling last year, Rosenbaum said: "[T]he Minnesota action encompassed virtually every claim that might have been raised from the relationship between plaintiff and his former employer and its employees [in the Georgia action]. ... This Court is confident that its Georgian sister court will analyze all of these issues in determining whether the matter may be permitted to proceed."

Speaking of the Anti-Injunction Act (as I do in my post above), a federal court in Maryland has granted injunctive relief in a case that should be of interest to family law attorneys here in a Canada-bordering state with many Indian reservations.

Our sister publication, The Maryland Daily Record, reports on a case where an Indian mother, a resident of Kahnawake Mohawk Territory in Quebec, obtained custody of her son through a federal court order. The parents and the child were on a vacation to the Indian Country and the parents decided to remain. After the parents separated, the boy's grandmother took the child to New York State. After two years of litigation in U.S., Canadian and Indian courts, the mother was awarded custody.

The father later sued for custody in state court in New York, but the federal court enjoined the suit under the Anti-Injunction Act. The mother's attorney, Stephen J. Cullen of Maryland, said it was the first time a federal court ever enjoined a state family court action.

Of course, an appeal is expected.

Minnesota Lawyer has a great piece this week telling the story of Will Barron, the Bowman and Brooke summer associate who helped victims of the 35W bridge collapse. Barron and his wife, Annie, who were driving in the area when the disaster struck, both got out of their car and rushed to the scene to help.

The Minnesota Lawyer piece, "A hero among us" (password required), is Barron's own description of what ensued. There are several really good anecdotes that he told to our reporter, Dan Heilman. For example, the couple came across a man in a truck with a broken arm and volunteered the use of their cell phone to let him speak with his wife. They got his home number, dialed it and handed him the phone. Before the poor guy could get his story out, an irate spouse on the other end could be heard yelling, "Where are you? You're late! Are you in a bar?" Flustered, the injured man simply blurted, "Woman, I just fell off a bridge! Turn on the TV!" And then hung up.

It's obvious from his eyewitness account that Barron is not only a humanitarian, but good at relating a story. I would encourage you to read the whole thing in this week's issue.