Minnesota Lawyer Blog

Super Tuesday has come and gone, and Senators Hillary Rodham Clinton and Barack Obama are digging in. Who knew it would be such a tight race?

YouTube knew. That is, the people posting viral campaign videos.

Some say it started with "I Got a Crush... on Obama," a sultry R&B spot where the singer professes her love for the Illinois senator.

The piece has prompted a slew of video responses, notably the emo rock clip "I Got a Crush...On Hillary" and one of my favorites, "Bush Clinton Dynasty Pizza Rap."

I haven't seen any comments from the Clinton camp on the YouTube campaign phenomena, but "It's just one more example of the fertile imagination of the internet," Obama told The Des Moines Register this summer.

"More stuff like this will be popping up all the time."

In next week’s Minnesota Lawyer, there will be an article about some of the technological developments that are most worth keeping an eye on for attorneys in 2008, and one of them is pay-for-click advertising – search term-based advertising in which the advertiser pays only when a user clicks on an ad to visit the advertiser's website.

Some law offices, notably personal-injury firms, have already mastered the art of pay-for-click. Take Twin Cities PI giant Meshbesher & Spence. For weeks, it has attached an ad to numerous search terms (including neuropathy, kill floor, and numbness+tingling) in an effort to attract potential clients who wish to make a claim against Quality Pork Processors in Austin.

So far, 13 QPP workers have complained of similar neurological symptoms. An undisclosed number of QPP workers have contacted Meshbesher’s Rochester office, according to the firm’s website.

It’s not hard to dream up a search string that will produce a link to a local PI firm: accident+Minnesota, Medtronic+lawsuit, slip+fall+Minneapolis, and Vioxx+Duluth all did the trick. Even the geographically generic search injury+negligence turned up a link to Schwebel, Goetz & Sieben.

Say what you like about personal-injury lawyers, but when it comes to drumming up business, they know how to stay ahead of the curve.

I wrote yesterday about the Star Tribune's editorial endorsing the recommendation of the Quie Commission majority that Minnesota switch to a retention system for judicial elections (also called the "Missouri plan" after the state that originated the concept). Not everybody is happy with that idea, of course. One group I mentioned in yesterday's piece is the Quie Commission minority, which believes eliminating judicial elections altogether and going with an appointment-based system is the better route. Many of those in support of the appointments-based approach have said they will go with retention-elections if that is path ultimately chosen by the majority of reformers.

The bigger roadblock for would-be reformers will be opposition from those who don't think change is necessary is all -- the "It ain't broke, so don't fix it" crowd. Many District Court judges, for example, are not sold on the idea of retention elections, which could still be used by special interest groups to knock a judge out of office if he or she decides a case against the group's particular interest. All the group would have to do is pour large amounts of money into a negative campaign targeting the judge, members of the trial court bench have pointed out.

Burton Randall Hanson, a former deputy commissioner of the Minnesota Supreme Court, wrote a thoughtful piece on his blog, The Daily Judge, eviscerating the Strib editorial. Hanson, who waged an ultimately unsuccessful campaign for a high-court seat in 2000, raises a point I have not heard much discussion about -- i.e. whether or not retention elections have led to a higher quality bench in Missouri. Here in Minnesota where judges generally are -- to paraphrase Garrison Keillor -- all above average, are we sure the same can be said of our sister state with the retention system? Hanson thinks not. I am not familiar enough with the bench of the "Show Me" state to have much of an opinion on that, but it's worth pondering.

If there can be said to be an upside to the devastation that has hit some of the local print media, it has been the tremendous spurt of online innovation that has resulted.

All sorts of fascinating electronic journalism ventures have cropped up. One of those is shuttering today -- The Daily Mole. Steve Perry, the site's founder, is joining the Minnesota Monitor, another online journalism venture.

The Daily Mole was full of interesting little tidbits about all sorts of topics. It also had the occasional serious piece, although nobody was going to confuse it with MinnPost. (Not a lot on the Daily Mole about wind turbines, for example.) I liked the site because it was a fun, quick read.

I look forward to seeing Steve's stuff at the Minnesota Monitor site. I also wonder whether the Star Tribune will move into The Daily Mole's offices now that the Strib's real estate is back on the market. It's tough to be a brick-and-mortar operation without the -- you know -- brick and mortar

In an article in this week's Minnesota Lawyer, prosecutors and defenders discuss recent changes to DUI law. One defense attorney even goes so far as to say that the state’s entire DUI-enforcement scheme is coming unraveled. Several DUI defense lawyers in the story cite the Court of Appeals' decision in State v. Netland for the proposition that the state's “implied consent” framework violates the Fourth Amendment. (The argument goes like this: Because it is a crime in Minnesota to refuse to consent to a blood-alcohol test in Minnesota, the consent is not really voluntary and results of tests taken without a warrant should be excluded.)

Meanwhile, in a Feb. 4 ruling in Culberson v. Commissioner, Hennepin County District Court Judge Jack Nordby weighed in on a different issue in the implied-consent debate -- right to counsel. Finding that police had violated a driver's Sixth Amendment rights, Nordby rescinded a driver’s license revocation. The driver in the case had agreed to take a blood-alcohol test, but a passenger in the car called an attorney. The attorney called the police station during the test, but the officer administering it did not stop it despite being aware of the lawyer's call.

Nordby wrote: "Where a lawyer has presented himself to a police agency, in person or by telephone, on behalf of a detainee, at a time when the lawyer’s advice may conceivably be of benefit to the detainee, and there are no obvious reasons why it would be overwhelmingly burdensome to do so, the police must at the very least allow the detainee to make an informed decision as to whether he wishes to consult with the lawyer before he begins a test or continues with one in progress, even when the detainee has earlier declined counsel."

And here is the money quote from Nordby's opinion: “The law in Minnesota relating to what is inventively referred to as ‘implied consent’ is complex, ever changing, and philosophically specious.”

The case is likely to go to the Court of Appeals. Stay tuned.

The Star Tribune today published an editorial advocating amending the Minnesota Constitution to reform judicial elections. The Strib has weighed in on the side of switching from our current system of contested elections (i.e. a system of incumbents and challengers) to a system of retention elections (a periodic vote on whether or not an incumbent should be retained). The system supported by the Strib was recommended by the majority of the Quie Commission, a blue-ribbon citizen's group that studied how to spare Minnesota the special-interest fueled partisan judicial races that have gripped some of our sister states.

Unmentioned in the Strib editorial is the approach that is the first choice of the Minnesota State Bar Association (and the Quie Commission minority) -- eliminating judicial elections altogether. Under this system, accountability would come in the form of periodic reviews of judges by a nonpartisan committee. The committee, rather than voters, would decide whether or not to retain judges.

For a while the legal community has been uncertain which approach would be followed. Both proposals have advantages and drawbacks. But recently, momentum has been building toward the retention-election model, (Minnesota Supreme Court Chief Justice Russell Anderson is now among its supporters).

For judicial election reform to have any chance of passage, it is clear that its backers would eventually have to unite under a single banner. The retention-election approach now appears to be the clear favorite in this horse race. But it's still premature for its advocates to uncork the champagne. As the New England Patriots can attest to, you've got to look out for the underdog.

Minnesota Lawyer this week has an interesting article on companies that loan money to plaintiffs who are desperately in need of funds. ("The cash advance conundrum.")

I have mixed feelings about these companies. On the one hand, they provide a service that is needed. On the other hand, the fees they charge seem exorbitant to me. Of course, you could make the argument that only people who deem the trade off worthwhile will borrow the money. (Paging Adam Smith: your free-market theory is being tested.) And, of course, the companies are taking quite a risk (i.e. they only get paid back if the plaintiff wins).

Minneapolis attorney Peter Riley sagely points out in the piece that such an arrangement makes sense in some cases, but it should be used only sparingly and where the fees for the service are not unreasonable.

I recall a wrongful-death case on which I worked as a law student where the widow had lost all the insurance proceeds she had received from her late husband's policy through bad real estate investments. The defendant, a product manufacturer, was dangling a settlement of $600,000 for a case that was easily worth seven figures. Faced with mounting financial pressures, the widow seriously considered taking it. It occurs to me that a legal-funding company may have been the answer. It could have provided our client with the short-term cash she needed without requiring her to sacrifice her long-term interests. But I would only recommend a client deal with one of these companies as a last resort.

Effective today, Minnesota Advocates for Human Rights has changed its name to The Advocates for Human Rights.

Although its name has changed, its "mission to promote and protect human rights locally, nationally, and internationally will remain the same," the group said in a press release sent out yesterday.

We shall, of course, miss having our state as part of this worthy group's name, but, given the international nature of what it does, the name change makes sense. Fortunately, the group formerly known as the Minnesota Advocates for Human Rights will continue to be based here and do excellent work locally.

Good news for local lawyers and law students: You will soon have Nixon to kick around again!

OK, OK, it's actually the topic of Watergate that will be kicked around at a forum at the University of St. Thomas School of Law this April -- but that doesn't make nearly as interesting a lead in, does it? The program is titled, "Watergate revisited: The ethics of lawyers."

UST snagged John Dean as one of the panelists. (Dean was counsel to Nixon, for those of you who only recall Watergate as the place where Monica Lewinsky lived.)

The event will be held on Wednesday, April 2 from 4 to 6:15 p.m. in the Schulze Grand Atrium of UST Law located between 11th and 12th and LaSalle Avenue and Harmon Place in downtown Minneapolis. Admission is $25 for the program ($75 if you want the two CLE credits). Students are admitted free. Reservations required in advance.

For more details, click here.

We had a laugh yesterday afternoon at Minnesota Lawyer’s offices. When we put a poll on our main website asking voters whether we thought the attorneys at Minnesota’s Attorney General’s office should be allowed to unionize, votes soon started trickling – and then flooding – in, as people on both sides of the issue frantically clicked the “yes” and “no” options. (The anti-union folks seem to have been much busier.)

The response demonstrated (take your pick) A) the passionate feelings this issue stirs; B) the silly lengths that some on both sides will go to in order to make their point.

We’ve covered this story to some length, but a year after it first emerged, the basic facts remain the same: AFSCME wants to form a union in the AG’s office, the AGO is digging in its heels, lots of lawyers (about one-third) have left the AGO, and morale in the office is bad and getting no better.

In the meantime, we’ve gotten numerous anonymous communications from pro-union folks (both on this blog and via e-mail) about the heavy-handed tactics that continue to be used against AGO employees, but little of substance around which to build a story that wouldn’t be one-sided and full of unsubstantiated speculation.

At the same time, the AGO is as uncooperative with us as it is with other media outlets, refusing to return calls and failing to follow through on Data Practices Act requests. Lori Swanson and her loyalists seem all too happy to see this story go unreported, even if means pushing ethical boundaries. And current and former AGO employees who could potentially contribute to the story are either unwilling to speak for attribution or have a pro-union axe to grind.

That puts us and other outlets in a bind, because while there might still be a story to be told at the AGO, most of what we’ve heard is hearsay, and we can’t use hearsay. We have all the Deep Throats we need on this one.

If there truly is more to be told, we hope a few people from both sides of this issue will drop their cloak of anonymity and let us know.