Minnesota Lawyer Blog

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.

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.

Last night’s "Law Day" dinner was a really nice event.

More than 1,100 tickets were sold for the 27th Annual Law Day Testimonial Dinner, which benefits the Legal Aid Society of Minneapolis. The event was sponsored by the Fund for the Legal Aid Society and the Hennepin County Bar Association.

Following a great dinner, a nice testimonial was made to Laura Cooper, a professor at the University of Minnesota Law School who spent 24 years on the board of the Minneapolis Legal Aid Society and also served as its president.

The keynote speaker, Tom Goldstein (at right), co-head of the Supreme Court practice at Akin Gump, in Washington, D.C., gave attendees an “Insider’s View of the Supreme Court.” He stressed the importance of the upcoming presidential election to the makeup of the high court, pointing out that at least two of the more progressive justices will be retiring in the next four years -- John Paul Stevens and David Souter. It’s possible that left-leaning Justice Ruth Bader Ginsburg may leave the court as well.

That means that if a Democrat makes it into the White House, the court will likely remain status quo, but that if a Republican gets in, the court will end up leaning even more heavily to the right that it currently does, Goldstein said. If you’re a progressive you should be worried; if you're a conservative, “party on!” he told the crowd.

Goldstein’s quip that Legal Aid lawyers will “do more good” than the Supreme Court will do this year also got a big laugh.

It was great to see such a large crowd show up to honor and celebrate the work of Minneapolis Legal Aid. My understanding is that it was the best turnout yet for the annual event -- and from what I could tell, people really enjoyed the evening.

It's Am Law 100 time again. But before we do the numbers, the folks at American Lawyer want you to know something: The Golden Age may be over.

Increased demand for high-end legal services and perpetual rate hikes has led to five consecutive years of better-than-average growth in revenue per lawyer and profit per partner among the top 100.

Good news, right? Well, American Lawyer points out that for the first time since 2001, the growth in law firm lawyers noticeably exceeded the growth in revenue per lawyer last year. Coupled with the recent decrease in deal activity, and those associate salary increases aren't sounding so good anymore.

Time will tell. In the meantime, here's how some Minnesota offices stacked up:

DLA PIPER
Home office: Decentralized
Ranking: 11
Gross revenues: $1.1 billion
Change from previous year: +11.7 percent, no change in ranking

MORGAN, LEWIS & BOCKIUS
Home office: Decentralized
Ranking: 12
Gross revenues:$1 billion
Change from previous year: +12.0 percent, no change in ranking

FULBRIGHT & JAWORSKI
Home office: Houston
Ranking: 37
Gross revenues: $ 649.5 million
Change from previous year: + 7.8 percent, down three spots

FISH & RICHARDSON
Home office: Decentralized
Ranking: 72
Gross revenues: $367.5 million
Change from previous year: +28.3 percent, up eight spots

DORSEY & WHITNEY
Home office: Minneapolis
Ranking: 73
Gross revenues: $367 million
Change from previous year: +11.4 percent, down one spot

LITTLER MENDELSON
Home office: San Francisco
Ranking: 87
Gross revenues: $305 million
Change from previous year: + 27.1 percent, up 14 spots

FAEGRE & BENSON
Home office: Minneapolis
Ranking: 94
Gross revenues: $284.5 million
Change from previous year: +14.7 percent, up four spots

There is a article worth reading on MinnPost about the University of St. Thomas School of Law. A student at the school was apparently denied "volunteer credits" (required by the school as part of its curriculum) for volunteer work done with Planned Parenthood.

According to MinnPost, Dean Thomas Mengler announced in a campuswide letter that students would not receive credit for volunteering at Planned Parenthood or any other organization "whose mission is fundamentally in conflict with a core value of a Catholic university."

The story goes on to note:

Several dozen St. Thomas law students signed an open letter to Mengler earlier this week, which voiced concerns about the law school's ability to attract a diverse range of students, both those who agree with the church's teachings and those who do not. (For the full MinnPost article, click here.)

It's a difficult conflict between the school's religious underpinnings and principles of academic freedom. The school seems to be leaning toward resolving this particular controversy in favor of the former, which could make the school a more difficult sell, particularly to nonCatholic students. On the other hand, being too flexible on this issue could threaten the young school's core identity. Nobody ever said being a law school with a mission would be easy ...

UPDATE: Jonathan Kaminski over at CityPages' blog "The Blotter," who I believe was the first to report the UST/ Planned Parenthood story, reports that a conservative UST Law students' group has thrown its support behind Mengler.

At what point and under what terms is a public official entitled to express an opinion about a political matter unrelated to his office? That's the issue in a minor dust-up between Hennepin County Attorney Mike Freeman and former federal prosecutors Tom Heffelfinger and Doug Kelley.

Freeman remarked in a newspaper interview last Saturday that the controversy over Al Franken's failure to properly file tax returns in California was a distraction from the real issues in the campaign for Senate. (Freeman has said previously that he was supporting Franken since Mike Ciresi was out of the race.)

On Tuesday, Heffelfinger and Kelley chastised Freeman in a letter, saying that he shouldn't have commented on the Franken situation without all the facts. Freeman countered that their letter was nothing more than a subtle show of support for Franken opponent Norm Coleman.

Freeman never claimed that his comments reflected the view of the county or his office -- he was asked for his opinion and gave it. Heffelfinger and Kelley's beef is that he didn't go out of his way to make it crystal clear that he was offering a personal opinion.

It seems Freeman's primary sin was being the only source quoted in the Saturday article about Franken who wasn't a full-time political consultant or mouthpiece of some kind. In that sense, it wasn't it courageous, rather than irresponsible, for him to express an opinion on the matter?

Do we really want to muzzle the opinions of officials because their comments might imply that those opinions might be shared by the official's colleagues?

Legislation that would enable surrogacy contracts has been heard in committee in both the House of Representatives and the Senate and is expected to go to the governor this session. That’s the word from Maple Grove attorney Glen Norton, the legislative chair for the Minnesota State Bar Association Family Law Section. The MSBA General Assembly has backed the legislation.

Senate File 2965 sets forth both the law regarding gestational carrier contracts and also contains provisions regarding the rights of the parties in cases of donated embryos. The latter sets up a scheme similar to the existing law regarding the parental rights of sperm donors, or more accurately, the absence thereof. When an embryo is donated, the donor is not treated as a biological parent; the intended parents are treated as parents under the law, assuming the requirements outlined in the bill are followed.

The gestational contract provisions regulate both gestational carriers and intended parents. Parental rights would vest immediately upon the child’s birth under the legislation. The bill also provides for legal or equitable damages to either party if the contract is breached.

Surprisingly, no opposition to the legislation has materialized, Norton said. The bill does not address the controversial subject of how to deal with embryos that are not fertilized. Additional legislation on that may be needed in the future, Norton said.

As we close in on law school graduation season here in the Gopher State, not everyone who will be donning a robe and mortar board next month is a happy camper. Every year at about this time we hear from a disenchanted law student or two -- and this year is no different.

In a recent post, we noted that the University of Minnesota Law School had "slipped" from 20 to 22 in the U.S. News & World Report rankings of the "Top 100" law schools. In response to that post, yesterday we received the following comment purportedly from a third-year law student at the U of M:

Honestly, for job placements Minnesota Law School (sic), isn't even 4th tier. We send less than 20 percent of our graduates top the top 250 firms, while most schools in the top 30 send at least a third. We have significantly lower salaries than other comparable law schools In my 3l class most students do not have jobs.

Appropriately enough, the comment was made under the nom de plume "Bitter 3L." I cannot vouch for any of the factual assertions contained in the post. In fact, I am nearly positive that, if called upon to do so, the U of M would pull up all sorts of placement statistics showing things are not nearly as dire as portrayed in this comment. But the statistics are not what interests me. Whatever the real numbers are, every year some law students head merrily off to prestigious clerkships or lucrative Big Law jobs, while others live lives of quiet desperation, facing a lot of debt and few job prospects. Schools trumpet the stories of the first group, but rarely mention the second.

I have some thoughts of my own on some of the issues implicated in 3L's remarks, but thought I'd toss it out into the blogosphere to let you comment. Do any of you more seasoned and grizzled attorneys have any words of wisdom for our bitter young friend?

Minnesota Lawyer has an interesting story this week about a local attorney who found himself being sued for malpractice in Kentucky by a woman who claimed that she was his client. (I say claimed because the lawyer disagrees.) The woman, who was from Indiana, was the administrator of the estate of a person who lived and died in Kentucky. The woman was mulling filing a medical-malpractice suit against the decedent's health-care providers, and for reasons that are unclear contacted the Minnesota attorney. She filed out his retainer agreement and returned it, but the two had no further contact. The attorney officially declined the case in a letter sent several months later, shortly after the expiration of the applicable Kentucky statute of limitations on the estate's med-mal claim. The woman sued the attorney for legal malpractice in a Kentucky state court, and the case was removed to federal court.

The federal court judge in Kentucky denied the Minnesota attorney's motion to dismiss, despite his lack of contacts with Kentucky. The Kentucky judge concluded that the Minnesota lawyer's failure to act in Kentucky could help form the basis of jurisdiction. It's an interesting concept -- usually courts look at what you do in a state to determine if they have jurisdiction, not what you don't do. (Now that's putting the International Shoe on the other foot!)

For more about this fascinating case, see the Minnesota Lawyer article (password required). In the meantime, you may want to be careful about whom you give a copy of your retainer agreement to ...

The "6o Minutes" interview with Antonin Scalia last night was worth watching. Scalia lived up to his reputation as being intelligent, stubborn and charming. Anyone who follows the U.S. Supreme Court knows that he is the justice who garners the most laughs from the people in the high court's gallery with his witty, though sometimes biting, observations. He is definitely not someone you would want to appear in front of unprepared (although, admittedly, the chances any lawyer would go before a U.S. Supreme Court justice unprepared are fairly minuscule).

Yet, Leslie Stahl's researchers seem to have made a pretty big gaffe on the topic of torture. Stahl asked Scalia how he could believe that torture did not constitute "cruel and unusual punishment" under the U.S. Constitution. Scalia tried to explain that torture is not used for punishment, but to extract information, and, because it is not "punishment," that particular provision does not apply. (The debate on torture centers on human rights treaties, not the 8th Amendment.) However, Stahl kept pressing Scalia on this one point, as if it was the justice who didn't get it. After Scalia made several stabs at clarifying the constitutional point, it became obvious Stahl wasn't hearing him. He promptly ended the discussion and moved on.

That one part aside, I thought it was a decent interview. I don't know if I liked it enough to go buy the recently released book Scalia co-authored with legal writing guru Bryan A. Garner, "Making Your Case: The Art of Persuading Judges." It would certainly be worth picking up if you are going to argue before the U.S. Supreme Court. Personally, I would have been more interested in reading Scalia's autobiography. I mean if Clarence Thomas, who never says a word on the bench, can write one, why can't Scalia?