Minnesota Trial - Spring 2017

MINNESOTA RIAL The Journal of The Minnesota Association for Justice

Ethical and Practical Considerations of Co-Counseling

Public Justice – Defective Triggers In Millions of Rifles A Woman’s Place: At Counsel Table

Spring 2017

MINNESOTA RIAL Gary M. Hazelton President Robert W. Roe President-Elect Richard A. Ruohonen Vice President Michael Hall III Secretary Genevieve M. Zimmerman Treasurer

The Journal of The Minnesota Association for Justice

Yvonne Flaherty Kate E. Jaycox Genevieve M. Zimmerman AAJ Board of Governors

CONTENTS

Josh M. Tuchscherer Ashleigh E. Raso AAJ State Delegate

Volume 42 No. 2 | Spring 2017

Paul D. Peterson State Bar Liaison

6

Carla M. Ferrucci Executive Director

Past Presidents

Peter A. Schmit Steven J. Terry Mark D. Streed Karen Kingsley Brian Wojtalewicz James P. Carey Michael A. Bryant Sharon Van Dyck T. Joseph Crumley Chris A. Messerly Wilbur W. Fluegel Katherine S. Flom Peter W. Riley Duane A Lillehaug David W.H. Jorstad Richard A. LaVerdiere Keith L. Miller William D. Harper Karla R. Wahl (deceased) Walter E. Sawicki Kathleen Flynn Peterson Mark R. Kosieradzki Fred H. Pritzker Logan N. Foreman Charles A. Cox (deceased) William E. Jepsen Dennis R. Johnson Ronald H. Schneider Kathleen Worner Kissoon William R. Sieben Robert R. Johnson (deceased) John W. Carey Stephen S. Eckman Hon. Cara Lee Neville Thomas J. Lyons Charles T. Hvass Adrian Herbst Russell M. Spence Stanley E. Karon Thomas Wolf (deceased) Hon. Duane M. Peterson (deceased) Joseph Burkard Paul Tierney (deceased) Ronald I. Meshbesher John V. Norton Robert N. Stone Harry Munger John Cochrane Fred Allen (deceased) Burton R. Sawyer Thomas Burns (deceased) Si Weisman Irving Nemerov (deceased) Hon. John Dablow Norman Perl Joseph E. Wargo Clint Grose (deceased) Hon. Robert Gillespie(deceased) Paul Owen Johnson (deceased) Donald Rudquist (deceased) Charles T. Hvass Sr. (deceased) Orville Freeman (deceased)

Ethical and Practical Considerations of Co-Counseling

ASAP

16

Public Justice – Defective Triggers In Millions of Rifles In Every Issue 4

President’s Page What’s Happening?

20 Practice Pointers

30 New Lawyers Traumatic Injury Protection Program (TSGLI): An Overview of the Program’s Benefits and Pitfalls

24 Employment Law Report “Right to Work” is Still Wrong

28 Women for Justice

A Woman’s Place: At Counsel Table

Brief Overview of Rule 11 Sanctions: Frivolous Cases/ Motions

34 Family Law 35 Workers’ Compensation Report 38 Welcome New Members 38 Our Sustaining Members

Editor This Issue | Erik D. Willer, TSR Injury Law

© 2017, Minnesota Trial magazine is a regular publication of the Minnesota Association for Justice and is devoted to presenting timely, informative and practical information to the Trial Bar. The opinions expressed in this publication are those of the authors and do not necessarily reflect association policy or editorial concurrence.

All inquiries should be made to Carla Ferrucci, Editor, 140 Baker Building, 706 Second Avenue South, Minneapolis, MN 55402.

Tel: (612) 375-1707 or (800) 898-6852 Fax: (612) 334-3142 E-Mail: cferrucci@mnaj.org.

MINNESOTA TRIAL Spring 2017 3

president’s page

Please Get the Convention on Your Calendar – August 17-19, 2017 Well the year is moving along at what seems to be a rapid pace but so too are things at MAJ. That means the first order of business is to make sure you have August 17-19, 2017 blocked on your calendar for the 35th Annual Convention to be held again at Madden’s Resort on Gull Lake near Brainerd. An excellent program is in the works and there will be even more activities this year. The New Lawyers group is planning a tour boat type cruise and again there will be plenty of opportunities to golf, swim, boat and just enjoy the outdoors. Please consider staying over Saturday night! Many did last year. Let’s make this the highest turnout we have ever had!

BY GARY M. HAZELTON

What’s Happening?

Trial Skills Series: We have completed three sessions of the Trial Skills Series and hope to have the fourth scheduled for June. My availability has been the hold up. A group of us have analyzed the first three sessions and believe the next session or two will return to the jury selection topic and consist of much more in depth substance and a lot more on our feet practice. We recognize the need for much brainstorming on and crafting of approaches to specific issue and then practice in this area and have come to believe that some of the other components that are used in opening statement, direct and cross-examination can be taught in the context of jury selection – even story crafting and storytelling. Videos of the first three

KOSIERADZKI •SMITH

4 Spring 2017 MINNESOTA TRIAL

sessions should be up for viewing on the MAJ website soon so anybody who wants to can see what we did in the first three segments. We will move onto Story Crafting, Storytelling, Opening Statement, Direct, Cross-Examination and Closing as soon as we feel we have accomplished what we need to with jury selection. The storyteller in opening is the person who just completed jury selection.

How the jury is feeling about you will frame how they will receive your trial story in opening. Thus, we want to ensure we have the ability to create and manage that relationship in jury selection before we move on and we need some work here.

New Lawyers Boot Camp: The New Lawyers Section has kicked off a New Lawyers Boot Camp series headed by Ashleigh Raso and Josh Miller. This is an 8 week series that runs on Wednesdays starting at 4:00 p.m. at MAJ and will address many topics young lawyers often want to learn about. Each session is followed by an informal social hour. I believe the sessions can also be attended via live webcast. Hats off to the NLS! So pleased to see the enthusiasm and eagerness to advance your knowledge and skills.

Verdicts: There have been some very nice verdicts obtained by members recently. Congratulations!

We all know trial is one hell of a lot of work and fraught with uncertainty. I think our success in the courtroom will continue to increase in

proportion to our willingness to come together as a group and work on our knowledge and skills as they relate to the crafting and presentation of the events and their consequences that have brought us to the courtroom. I hope we will have ever increasing numbers of members willing to participate in the Trial Skills Series, New Lawyers Boot Camp or similar programs.

Through knowledge and practice – in a safe and helpful atmosphere – the unfamiliar becomes familiar, confidence increases, and fear fades away, allowing us to be present in the courtroom and thereby congruent, authentic and credible.

Construction at MAJ: There will be some forthcoming changes to the configuration of the MAJ office space. As most of you probably know, the building has been undergoing a total remodel for some time. We will sacrifice some of our space and that will result in a smaller classroom. However, this is offset by our ability to use a brand new large top floor conference room. I understand there will be a rooftop gathering area that can be used for receptions following events. Very eager to see the finished product. Our hope is to be able to host moderate sized events without the need to pay for expensive hotel space, that in our experience has not only been a real profit buster but requires a greatly increased cost to us as attendees.

Happy Spring and Get Registered for the Annual Convention!

2016-2017 Board of Governors Stephanie M. Balmer Thomas R. Bennerotte Eric W. Beyer Nathan H. Bjerke Lindsey A. Carpenter George “Jed” Chronic Sheila Donnelly-Coyne Michelle E. Drake Robert N. Edwards Brendan J. Flaherty Yvonne M. Flaherty James H. Greeman Michael Hall, III Clayton D. Halunen Jacob R. Jagdfeld Kate E. Jaycox Michael K. Johnson Jason P. Johnston Jeffrey A. Jones Peter J. Kestner Robin Sharpe Landy Robert L. Lazear Randal W. LeNeave M. Ryan Madison Gregory S. Malush Teresa Farris McClain Marcia K. Miller Christopher J. Moreland Elliot L. Olsen Jerome W. Perry Laura L. Pittner Sean Quinn Ashleigh E. Raso Richard J. Schroeder Michael F. Scully Jeffrey Sieben Keith E. Sjodin Joel E. Smith Matthew E. Steinbrink Stacy Deery Stennes Jeremy R. Stevens Pat Stoneking Jeffrey D. Stowman William K. Sutor III Tara D. Sutton Scott A. Teplinsky Brandon Thompson Ryan O. Vettleson Kate G. Westad Erik D. Willer Markus C. Yira

MINNESOTA TRIAL Spring 2017 5

Ethical and Practical Consi de

BY GEORGE E. MCLAUGHLIN

Handling a case with co-counsel from another law firm may give you the opportunity to serve a client in a matter that you otherwise may not have accepted. It may give you the opportunity to handle a case that you could not, should not, or would not have done on your own. It may give you the opportunity to finance the expenses of a case that you otherwise could not afford to try, or at least to spread the financial burden and risk of an expensive case.

Handling a case with co-counsel may be required by the local rules of a court if you are not fully admitted to practice 6 Spring 2017 MINNESOTA TRIAL

in your own right in that court. It may be financially rewarding, financially disastrous, professionally satisfying, professionally frustrating, ethically challenging, an opportunity to vicariously commit malpractice, have other impacts I have not thought of, and be combinations of all of the above.

Handling a case with co-counsel from another law firm is not simply a matter of a handshake or of coming to an agreement over the phone. If you will be practicing law outside of your home state, where you are admitted to the bar, and maintain an office for the full-time practice of the law, or inviting as your co-counsel an attorney

from out of state, there are things that you need to read, know, understand, and do, both for the protection of your client and for yourself.

I. Ethical Considerations First and foremost, there are ethical considerations to associating as or with co-counsel. While I have not surveyed all 94 federal districts, it is safe to assume that most, if not all, federal district courts have adopted the Rules of Professional Conduct applicable in the state where that federal district lies.1 Many federal courts require that in your application for admission you attest to the fact that

si derations of Co-Counseling you have read the local rules of that court. Some federal districts require as a term of admission that you acknowledge that you have read and will abide by the applicable Rules of Professional Conduct.

The Georgia Rules of Professional Conduct, which are based upon the Model Rules of Professional Conduct published by the American Bar Association, govern the professional conduct of attorneys in Georgia. The charging of fees for the representation of clients is addressed in Rule 1.5. When it comes to the division of a fee between lawyers who are not in the same firm representing a client in Georgia, subsection 1.5(e) of the Georgia

Rules of Professional Conduct states: A division of a fee between lawyers who are not in the same firm may be made only if: 1. the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; 2. the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and,

3. the total fee is reasonable.

Obviously, the best practice is to disclose the fee sharing and the division of the responsibility in the fee agreement signed by the client. However, if cocounsel is brought into the case after the fee agreement has been signed, if not executing a new fee agreement disclosing that association and fee sharing, the disclosure and client consent may be obtained by a subsequent document or letter. In that event, the next best practice is to require the client to consent by signing and returning a copy of the disclosure. continued on next page MINNESOTA TRIAL Spring 2017 7

ETHICAL AND PRACTICAL CONSIDERATIONS OF CO-COUNSELING continued from page 7

GEORGE MCLAUGHLIN is a partner of WarshauerMcLaughlin Law Group, P.C. He focuses primarily on product liability cases against major corporations, including Wright Medical Technology.

During his career, he has tried more than 100 civil litigation cases to verdict. He serves as co-chair of CTLA’s products liability committee.

Forty-nine states, the District of Columbia, and the U.S. Virgin Islands, all have adopted a version of the Model Rules of Professional Conduct.2 However, be aware that Rule 1.5 of the Rules of Professional Conduct is not the same in every state. For example, the version of the Rules of Professional Conduct adopted by the Ohio Supreme Court for attorneys practicing in Ohio includes the following additional requirement not found in Georgia or many other states: [E]xcept where court approval of the fee division is obtained, the written closing statement in a case involving a contingent fee shall be signed by the client and each lawyer and shall comply with the terms of division (c)(2) of this rule.3 Paying a referring attorney a share of a subsequently earned fee is a common practice in some states. Paying a referral fee sometimes occurs even though no work may be done by the referring attorney, and the referring attorney

DRUG & DEVICE REFERRALS

Current Cases

Considering referring a case?

8 Spring 2017 MINNESOTA TRIAL

may have retained no responsibility, financial or otherwise, for the handing of the client or the case. However, in some states, paying a referral fee in such circumstances is a violation of the Rules of Professional Conduct. For example, in Colorado, “Referral fees are prohibited.”4 In summary, when associating with co-counsel, you must comply with the applicable Rules of Professional Conduct related to disclosure of the association, the sharing of work, responsibility, fees, and expenses. When associating with cocounsel from another state, you must read the Rules of Professional Conduct as adopted in that state. Pay particular attention to that state’s Rule 1.5, and carefully read every subsection. Do not rely on your memory or belief as to what Rule 1.5 may require in that state. Do not even rely on representations made to you by your co-counsel from that state. Read the rule!

Rule of Professional Conduct 1.1, regarding competence, gives attorneys a directive to

associate with co-counsel when necessary: A lawyer shall provide competent representation to a client. Competent representation as used in this Rule means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer’s level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question.

The Model Rules of Professional Conduct as adopted in other states have a similar requirement to associate cocounsel in matters beyond the lawyer’s level of competence. But the ethical considerations related to the disclosure and payment of shared fees and expenses are just the threshold of the benefits,

pitfalls, and frustrations of having cocounsel or being co-counsel.

Best practice tip: Even if not required in that state, require that the client be advised in writing of the fee and expense sharing agreement you have with co-counsel, the division of work and responsibility, and obtain the client’s written consent to the agreement by requiring the client to sign and return a copy of the document used to inform the client, be it the fee agreement itself or a subsequent document. Additionally, prior to paying any subrogation liens, reimbursing counsel for any expenses, paying attorney’s fees, or distributing the client’s net recovery, always send the client a written final distribution statement, stating the total amount of the costs and litigation expenses being reimbursed to each law firm, the amount of the fee being paid by the client to

each law firm, the amount of any lien satisfactions that will be paid, the amount of any “hold back,” and the client’s net recovery. Require the client to approve, sign, and return that final distribution statement before any payments, reimbursements, or distributions are made.

II. Admission to Practice Every state bar has rules for the admission to the practice of law, in one form or another. All states allow for the admission pro hac vice of attorneys who have not been admitted to the state’s bar in their own right, under certain circumstances. Pro hac vice admission privileges vary from state to state. Some states place limitations on the number of times an attorney may be admitted pro hac vice.5 In Georgia, Uniform Superior Court Rule 4.4 governs admissions continued on next page

MINNESOTA TRIAL Spring 2017 9

ETHICAL AND PRACTICAL CONSIDERATIONS OF CO-COUNSELING continued from page 9

pro hac vice. However, years ago, I learned the hard way that not all pro hac vice admissions are equal.

In 2001, I moved from the state of West Virginia, where I had practiced law for 22 years, to the state of Colorado, where I was also a member of the bar. When I made that move, I did not continue to maintain a law office in West Virginia, but I maintained my active status with the West Virginia Bar. I brought with me in the move to my new law firm a medical malpractice case that I, as a member of the West Virginia bar, subsequently filed in West Virginia. Thereafter, we obtained the admission pro hac vice of one of my partners from Colorado to assist me in the case.

Because my law partner had extensive experience with medical malpractice cases, it was our intent that he would

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take the deposition of the defendant doctor. A deposition notice was properly served for the deposition to take place on an agreed-to date in the state of Michigan, where the defendant had subsequently moved and lived. I went along with my Colorado law partner to Michigan not only for support, but because I knew that the pro hac vice rule in West Virginia required a lawyer who had appeared in the case, and was an active member in good standing of the West Virginia Bar, to personally be present at any proceeding where the pro hac vice attorney was going to participate.

member of the West Virginia State Bar at all proceedings, but that the active member of the West Virginia State Bar so appearing also be a person “who maintains an actual physical office equipped to conduct the practice of law in the state of West Virginia, which office is the primary location from which local counsel practice law on a daily basis.�

I had no such office. The deposition was aborted. It was retaken after we located an attorney who had an office in West Virginia from which he practiced law on a daily basis to accompany us to the rescheduled deposition in Michigan.

I should have read the rule.

As the deposition began, and my law partner asked the first question, opposing counsel objected, citing West Virginia Rule for Admission to Practice 8.0(b), which requires not only that the pro hac vice attorney appear with an active

Best practice tip: When associating co-counsel, read and understand all of the rules related to admission pro hac vice in that state, even if it is your state and you are the one who is serving as the in-state attorney.

III. Federal Courts Practicing as or with out-of-state cocounsel in federal court is also an area where there are at times conflicting and inconsistent requirements with state court rules. To the extent that there may be conflict between federal court rules and a state’s rules related to the practice of law in that state, the Supremacy Clause of the United States Constitution clearly tells us federal law controls: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.6

But the local rules of the 94 federal judicial districts are varied and inconsistent on the requirements for attorneys from out of state appearing in or being admitted to practice in the various federal courts.

Most often, Federal Local Rule 83, Attorneys and Admission to Practice, governs admission and appearances in a federal district court.7 In all of the federal districts of Georgia, Local Rule 83 states, with varying language among the districts, that any attorney who is an active member in good standing of the State Bar of Georgia is eligible for admission to the federal bar.8 However, in some other federal districts, the local rule allows any attorney who is admitted to the bar of any state, or admitted to the bar of any other federal district court, to become a member of the federal bar of that court in their own right.

In the Western District of Wisconsin, for example, the federal local rule is, “Any lawyer licensed to practice before the highest court of any state or the District of Columbia is eligible for admission to practice in this court.”9 The association of local counsel is not required, unless specifically directed to do so by a judge.

“Non-resident lawyers need not retain local counsel to assist in the presentation of their cases unless specifically directed to do so by a judge or magistrate judge.”10 Many federal districts allow attorneys who are not admitted to the bar of that state to be admitted in their own right, not merely pro hac vice, but many states do not allow that. In the Western District of Pennsylvania, “Any person who is ... a member in good standing of any United States District Court, may be admitted to practice before the bar of continued on next page

MINNESOTA TRIAL Spring 2017 11

ETHICAL AND PRACTICAL CONSIDERATIONS OF CO-COUNSELING continued from page 11 See N.D. Ga. Standards. of Prof’l Conduct R. 83.1 C.

1

California is the only state that has not adopted a version of the Model Rules of Prof’l Conduct.

2

Ohio R. Prof’l Conduct R. 1.5(e)(3). Ohio R. Prof’l Conduct R 1.5(c)(2) requires written closing statements provided to the client, providing full disclosure of all fees and expenses, signed by counsel and the client.

3

Colo. R. Prof’l Conduct 1.5(e).

4

See R. Regulating Fla. Bar 1-3.10(a)(2), limiting appearances to not more than three separate representations in a 365-day period.

5

U.S. CONST., art. VI.

6

While many federal district courts use a substantially similar set of local rules, with consistent numbering of the rules, that is not the case in all 94 federal districts.

7

8 N.D. Ga. Civ. R. 83.1 A. This rule states, “Any attorney who is an active member in good standing of the State Bar of Georgia is eligible for admission to the bar of this court. Continued membership in this court’s bar is contingent on the attorney’s maintaining active status in good standing with the State Bar of Georgia.”

N.D. Ga. Atty. Admissions Proc. R. 83.2 states, “Any attorney who is a member in good standing of the State Bar of Georgia is eligible for admission to the bar of this Court.”

M.D. Ga. Atty. Admissions Proc. R. 83.1.1.B. states, “To be eligible to practice in this court an attorney must have been admitted to practice in the trial courts of the State of Georgia and be an active member in good standing of the State Bar of Georgia. Only attorneys who are admitted to practice in this Court, or who have otherwise obtained permission under Rule 83.1.2c, may appear as counsel.”

this Court.”11 But in the Eastern District of Pennsylvania, “Any attorney who is a member in good standing of the bar of the Supreme Court of Pennsylvania may ... be admitted generally as an attorney of the Court.”12 If you or your co-counsel are not admitted to the bar of the state where the federal district lies, then in most federal districts, but not all, you may seek admission pro hac vice on a case-by-case basis.13 Again, the federal local rule governing pro hac vice admission is usually found in Local Rule 83. But as with eligibility for regular admission, the requirements vary among the federal districts.

In the Northern District of Georgia, “A non-resident attorney who is not an active member in good standing of the State Bar of Georgia, but who is a member in good standing of the bar of any United States court or of the highest court of any State ... may apply for admission pro hac vice in a particular case.”14 But: An attorney applying to appear pro hac vice must also designate a local member of the bar of this court with whom the opposing counsel and the court may readily communicate regarding the conduct of the case and upon whom papers shall be served. The designated local counsel must sign all pleadings and other papers filed in the case by the attorney appearing pro hac vice.15

In some of these federal districts, the pro hac vice attorney does not have electronic case filing (ECF) privileges, and is not granted an ECF password.

Some other federal districts are not so restrictive, and allow pro hac vice counsel to sign and directly file pleadings.

Best practice tip: You must read the federal local rules governing admission to the federal bar in the federal district court in which you or your co-counsel will be practicing.

IV. Staying within the Lines Of course, one of the primary reasons you may associate with co-counsel or ask to be associated as co-counsel is to have an attorney on the case who is thoroughly familiar with the applicable rules of the court. In some courts, individual judges have their own additional rules for practicing in their courts that are in addition to the published local rules.

I have learned, sometimes the hard way, that you should not assume that your co-counsel will apprise you of all the local nuances of practicing in a particular court, or in front of a particular judge.

You need to be very explicit with co-counsel as to what your role is and what his or her role is. Reduce it to writing in a memorandum outlining what you expect and what you and your co-counsel are responsible for.

W.D. Wis. R. 83.5 A, Admission of Lawyers.

9

W.D. Wis. R. 83.5 D.

10

W.D. Pa. R. 83.2 A. 2

11

E.D. Pa. R. 83.5(a).

12

The Local Rules for the United States District Court for the District of Colorado do not provide for pro hac vice admission, but allow only for admission of attorneys as full members in their own right, with no Colorado bar, residency, or association of local counsel requirement.

ERISA DISABILITY CLAIMS

13

N.D. Ga. R. 83.1 B (1).

14

N.D. Ga. R. 83.1 B (2).

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ERISA litigation is a labyrinthine maze of regulations and timelines.

Let our experience help.

N O L A N , T H O M P S O N & L E I G H T O N , P L C M a r k N o l a n ( 9 5 2 ) 4 0 5 - 7 1 7 5

R o b L e i g h t o n ( 9 5 2 ) 4 0 5 - 7 1 7 7

Best practice tip: When practicing in a court that is foreign to you, first check the court’s website for any information related to practicing in that court, or in front of that judge, that is not in the local rules. Then call the judge’s clerk to see if there are any particular procedures that are applicable to the court that are not available on the court’s website.

V. Written Agreement with Co-counsel You certainly need to have a very clear understanding, in writing, with your co-counsel as to what the specific terms of your co-counseling agreement are, your respective responsibilities, and so on. One of the areas that is most fraught with peril is the sharing of costs and expenses. You should have a definite written agreement with co-counsel as to the details of the payment and sharing of the costs and expenses of the case.

A written agreement is necessary as to the terms for sharing costs and expenses equally, with some other percentage, or that one side or the other is responsible for all of the costs and litigation expenses. You also need to provide for a periodic accounting to each other. You do not want to be surprised at the end of the case, particularly in the event that it does not work out well, that you owe your co-counsel tens of thousands, or even hundreds of thousands of dollars

of expenses you were unaware had been incurred. Even in a contingent fee case where counsel is advancing the expenses, the client should be provided with regular periodic statements of the costs and expenses incurred. Send that same statement to co-counsel, or require that you receive it from your co-counsel. You need to provide for whether or not there will be reconciliations should one side or the other get out of balance with their share of the costs and expenses advanced during the litigation. Are internal expenses, such as copying charges, postage, mileage, and the like, something that will be reconciled while the case is pending? In the unfortunate event of a non-recovery, what internal expenses are subject to reconciliation?

Additionally, what control and oversight does either co-counsel have related to expenses? For example, you do not want to be surprised at the end of the case that your co-counsel, who was responsible for a particular issue in the case, spent many thousand dollars on something that, had they consulted with you, you probably would have talked them out of as not being economically justified or not beneficial to the case. I am speaking from experience on that one. If you are not the one in control of the case, and were brought in as co-counsel, you may want to include an upper limit on the expenses that you will advance while the case is ongoing, and an upper limit on the

expenses that you will share with co-counsel in the event of a non-recovery.

Best practice tip: Reduce to writing, signed by both counsel, the details of the bearing, sharing, incurring, periodic disclosure, and periodic reconciliation of costs and expenses.

VI. Vetting Co-counsel When seeking co-counsel in a part of the country where you are not familiar with the members of the bar, get references and do your homework. Get recommendations from other members of your state trial lawyers association, the American Association for Justice, or by using other attorney and practice association listservers. Ask attorney friends you trust from that jurisdiction for recommendations. Search for other litigation your prospective co-counsel has been involved in. If the court has a searchable docket, look up the attorney and speak with other attorneys who appear on pleadings as having associated with them in the past. If you have a case that potentially will end up in federal court, you probably do not want to associate as local co-counsel an attorney who rarely has practiced in the federal court.

Blindly associating with someone is dangerous. You would not hire an expert without any recommendations or research. You are about to enter into continued on next page

MINNESOTA TRIAL Spring 2017 13

ETHICAL AND PRACTICAL CONSIDERATIONS OF CO-COUNSELING continued from page 13

a long-term relationship, with serious professional and financial consequences.

Do your research. This same precaution applies when you are asked to be associated as co-counsel. There probably are some people practicing law that you may not want to be associated with, even if just for one case.

Best practice tip: Due diligence is required before associating as co-counsel an attorney outside of your firm.

VII. Value of Local Counsel Finally, this discussion would not be complete without at least one humorous “war story” from my own experience of 30-plus years of practicing around the country, both bringing in and being brought in as co-counsel. The West Virginia medical malpractice case I mentioned earlier, where the defendant’s deposition in Michigan by my Colorado co-counsel was aborted, eventually went to trial. It was tried in my small hometown

of Wheeling, West Virginia, where I had grown up, graduated from high school, and practiced law for over 22 years. I had recently moved to Colorado, but I still had solid roots in the community. The defendant’s insurance company hired a law firm from a distant big city to come to Wheeling and defend the case. The two attorneys who tried the case certainly were very competent and experienced.

But neither was from my hometown. The lead defense attorney was from Columbus, Ohio. During qualification of the jury panel, the court introduced all counsel for the parties, asking if anyone knew any of the lawyers. Of course, nobody knew my law partner from Colorado. They also did not know either of the out-of-town defense attorneys. However, when the court asked if anyone knew plaintiffs’ counsel George McLaughlin more than half of the hands of jury panel went up. The court went through the prospective jurors one by one, “Please tell us how do you know Mr. McLaughlin?”

KEYNOTE SPEAKER:

JARRETT ADAMS Jarrett M. Adams was wrongfully convicted of sexual assault at age 17 and sentenced to 28 years in a maximum-security prison. After serving nearly 10 years and filing multiple appeals, Jarrett was exonerated with the assistance of the Wisconsin Innocence Project.

Jarrett used the injustice he endured as inspiration to become an advocate for the underserved and often uncounted. As a first step, Jarrett earned his Juris Doctorate from Loyola University Chicago School of Law in May 2015 and started a public interest law fellowship with Ann Claire Williams, judge for the Seventh Circuit U.S. Court of Appeals. This is the same court that reversed Jarrett’s conviction because of his trial lawyer’s constitutional deficiencies.

14

Spring 2017 MINNESOTA TRIAL

The answers included such things as, “We went to high school together,” “He’s a good friend of my older brother,” “His mother taught me in the third grade,” and the like. Eventually, the court got to the last woman who had raised her hand. “How do you know Mr. McLaughlin?” She just shrugged her shoulders and said, “I don’t know.

Everybody knows George.” Two weeks later, the jury returned a multi-million dollar verdict in favor of our clients, the first medical malpractice verdict in favor of a plaintiff in that county in more than three years.

Practice tip: Always associate with experienced and respected local counsel if going to trial in a court that is foreign to you.

Never underestimate the value of having co-counsel for jury selection. But that is a subject for another article.

35th Annual Convention August 17-19, 2017 madden’s resort brainerd, mn

or V

Unsealed Remington Documents Posted by Public Justice Show Defective Triggers in Millions of Rifles Could Fire On Their Own

P A S A Gun Owners Need to Claim FREE Trigger Replacements

BY ARTHUR BRYANT, CHAIRMAN*

Over 133,000 previously-sealed

Remington documents are now available to the public on a new website created by Public Justice, www.remingtondocuments. com. The documents show the company knew for decades the trigger in the Remington Model 700 – the most popular bolt-action rifle in America – and a dozen other Remington models could fire when no one pulled it. Remington denied that fact

16 Spring 2017 MINNESOTA TRIAL

(and still denies it), hid the truth, and kept selling the rifles. As a result, hundreds of people were maimed or killed – and millions are still at risk.

Public Justice won access to these documents by threatening litigation to unseal them.

In December 2015, based on the documents, CNBC published an investigative report and aired a one-hour special, Remington Under

Fire: The Reckoning, exposing Remington’s conduct and the guns’ dangers. Public Justice launched its new website at www.remington documents.com last November to make the documents available to all. On February 19, 2017, CBS-TV’s 60 Minutes broadcast a report on the Remington 700, citing key documents and demonstrating Remington’s willingness to sacrifice lives to maximize its profits.

The 60 Minutes report focused on 15-year-old Zachary Stringer, who was convicted of killing his 11-year-old brother, Justin, in 2011 with a Remington 700. Zachary swore that the gun went off on its own, but no one believed him. Remington said the gun could not fire without a trigger pull. Zachary’s conviction was upheld by the Mississippi Supreme Court. He had served 5 years in prison when his father, Roger Stringer (who had believed in horror that his son Zachary killed his brother Justin) learned that the Remington 700 could fire without a trigger pull.

Over 7.5 million Remington 700 and other rifles with this defective trigger are now in gun owners’ hands.

A proposed settlement in Pollard v. Remington Arms, a national class action in federal court in Kansas City, MO, would provide free trigger replacements to all owners of Remington Model 700, Seven, Sportsman 78, 673, 710, 715, and 770 rifles who file claims.

Everyone who owns one or more of these rifles should stop using them and submit a claim for each rifle.

Details about the proposed settlement are provided on Public Justice’s new Remington Rifle Trigger Defect Documents website and on the proposed settlement web site, www.remingtonfirearms classactionsettlement.com.

U.S. District Court Judge Ortrie D. Smith of Kansas City, MO, approved the proposed settlement on March 14, 2017, but expressed concern that only 22,000 of the over 7.5 million class members had filed claims. Objectors and ten state Attorneys General had argued the settlement could not be approved because, among other things, the notice sent to gun owners was inadequate. Judge Smith’s decision is now on appeal. In the meantime, all who own these rifles need to know of their danger – and protect themselves, their loved ones, and innocent others.

The proposed settlement does not provide a free trigger replacement for Remington Model 600, 660, or XP-100 rifles, which were recalled in 1979. Their triggers can still be repaired for free. Everyone who owns one or more of these rifles should stop using them, get them repaired for free, and consider filing a claim for the compensation the proposed settlement provides. Go to www.remington.com/support/safety-center/safetymodification-program/remington-model-600-660 f or the Model 600 and 660 recall info and to www.remington.com/support/safety-center/ safety-modification-program/remington-modelxp-100 for the XP-100 recall info.

The proposed settlement also does not provide a free trigger replacement for Remington Model 721, 722, and 725 rifles, which have the same defective trigger, too. Everyone who owns one or more of these rifles should stop using them (unless you get the defective trigger fixed) and consider filing a claim for the compensation the settlement provides.

Public Justice won public access to the documents it posted on the web – and all of the documents in all lawsuits ever filed against Remington over these defective triggers – with the help of the plaintiffs’ lawyers in Pollard v. Remington Arms.

ARTHUR H. BRYANT, Chairman of Public Justice, has won major victories and established new precedents in several areas of the law, including constitutional law, toxic torts, civil rights, consumer protection, and mass torts. The National Law Journal has twice named him one of the 100 Most Influential Attorneys in America.

Public Justice sought the documents, in part, so Richard Barber of Montana – an NRA member and avid sportsman whose 9-year-old son, Gus Barber, was shot and killed when a Remington 700 fired without a trigger pull in 2000 – could avoid Remington’s threat to sue him for contempt of court if he disclosed what he knew about the trigger’s defects.

Public Justice’s Remington Rifle Trigger Defect Documents website includes PowerPoints and Timelines highlighting key documents and exposing Remington’s willingness to endanger its customers, their friends, and families to maximize profits. They reveal what Remington knew and what the company did – and didn’t – do, including decisions not to recall the rifles because it would cost too much and to destroy test results. They shine a light on the company’s response to customer complaints, triggers tests that failed, and Remington’s efforts to mislead its customers, the press, and the public.

The PowerPoints and Timelines were provided by Timothy Monsees of Monsees & Mayer, PC, in Kansas City, MO, attorneys experienced representing people injured by the Remington 700 and other rifles with the defective trigger. Elijah Ltd. designed and is hosting the website.

Public Justice was not involved in negotiating and has taken no position on the proposed settlement in Pollard v. Remington Arms. We believe strongly, however, that, to the extent that the proposed settlement leads to the replacement of the defective triggers in these rifles – or stops these rifles from being used – it will have performed an important public service.

Arthur first came to Public Justice in 1984 as its sole staff attorney, and was appointed Executive Director in 1987.

Under Arthur’s leadership, the organization grew from a staff of two, including him, to a staff of 30. During Arthur’s leadership as Executive Director, Public Justice was involved in a broader range of cutting-edge, high-impact litigation than any public interest group in the country fighting for consumers’ rights, workers’ rights, civil rights and liberties, environmental protection, corporate and government accountability, and the poor and the powerless.

Its Access to Justice Campaign, launched in 2004, made Public Justice the national leader in the courts against corporate efforts to expand mandatory arbitration, federal preemption, unjustified secrecy, and other barriers to Americans’ constitutional right to a jury trial and a day in court.

If you own one of these rifles or know someone who does, please visit Pubic Justice’s new Remington Rifle Trigger Defect Documents website and take action, immediately.

MINNESOTA TRIAL Spring 2017 17

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No-Fault Insurance in the Age of Uber

MICHAEL A. BRYANT is a partner in the law firm of Bradshaw & Bryant, PLLC. His practice areas include personal in-jury and criminal defense.

Mike co-chairs the MAJ Amicus Committee and serves on the Execu-tive, Finance, Publications and Legislative Committees.

He was the 1999/2000 MAJ Member of the Year and is past president of the MAJ.

T. JOSEPH CRUMLEY is an AV-rated attorney practicing in the areas of personal injury and wrongful death with offices in Waite Park and Golden Valley. Joe is past president of the Minnesota Association for Justice, the Minnesota Consumer Alliance, and the Warren Burger Inn of Court. He is board certified as a Civil Trial Specialist by the MSBA, and has been elected to the American Board of Trial Advocates.

20 Spring 2017 MINNESOTA TRIAL

About 25 years ago, your editor put together a little flow chart to help remember the no-fault priorities when asked to do research on the subject. After a few drafts, Version 1.0 was floated around the office for critique. Many lawyers at the old firm thought they had found an error in the chart. It became a little game over time to try to stump the chart. Each time someone floated a strange new scenario, your young editor panicked a little, then relaxed.

The chart was always right.

The chart gained some popularity, and was distributed through the firm, and then, after some touching-up, throughout the state, on distinctive yellow ledger-sized paper with an article in this very magazine. Seminars were held, and audiences of lawyers would call out the strange fact scenarios that they though would ‘break’ the chart. But the chart was always right.

The Minnesota No-Fault Priorities Chart, like the law it was based on, has had very few and very minor changes since version 1.0.

Sure, police squad cars were declared NOT to be motor vehicles1 and there were a few nervous years for Metro buses (the chart was right), but not much has changed, other than the law firm name and number.

But the 21st century came along, and Uber and Lyft arrived in our fair state. Two years ago, in a 1700-plus word new subsection2 (even longer than this article), the legislature laid out the details of 21st century Ride Share Auto Insurance. Most of the law relates to liability, uninsured and underinsured motorist coverages and shifting responsibilities.

But a few sections address no-fault priorities.

To summarize, a Lyft or Uber driver is “deemed to be in the business of transporting persons” when “the driver is logged on to the transportation network company’s digital network; or … while the driver is engaged in a prearranged ride.”

Turns out, the chart is still right. Your editor is smiling smugly.

Restricted Financial Identifiers Here’s another heads up from MAJ Stalwart Matt Brenengen. Matt got spanked by a Court Clerk for including an insurance policy number in his Complaint against the No-Fault insurer (which most of us have done forever on these direct actions). It turns out that the clerk considered an insurance policy number as a Restricted Financial Identifier, and thus banned from filings for the past few years under Court Rule 11.2: (a) “Restricted identifiers” shall mean the following numbers of a party or other person: complete or partial Social Security number, complete or partial employer identification number, and financial account numbers other than the last four numbers of a financial account number that is not also a Social Security number. (b) “Financial source documents” means income tax returns, W-2 forms and schedules, wage stubs, credit card statements, financial institution statements, check registers, and other financial information deemed financial source documents by court order.

Matt points out that it is arguable that a policy number is not any of these things, and in a Declaratory Judgment action regarding enforcement of the terms of an insurance policy, it seems wrong not to cite to the policy number.

Worse, different counties were handling policy numbers differently, with some accepting them in pleadings.

The smartest move would be to leave the number out, or maybe use the xxx-xxxxx-5493 method (barred from use in SSNs or employer numbers) But if you need to include the number, probably best to a Redacted S&C and the Confidential Form 11.02 so you don’t end up refiling the case and paying the $324 filing fee again like Matt!

Member Jim Reichert suggested it was worthwhile to get a copy of the Hennepin County Civil Filing Cheat Sheet, which I

found at: http://www.mncourts.gov/ mncourtsgov/media/scao_library/ LegalCounselDivision/FinancialAccount-Numbers-Cheat-Sheet.pdf

State agency case number (county attorney, child support, etc.)

No

But the content is short enough to include here. (See chart at right.)

Billing number from service provider (medical facility account, fuel oil account, telephone account, etc.)

Yes

Number from a chargeD-off credit or debit account

Yes

Certificate of Deposit number

Yes

Annuity contract number

Yes

Credit account number

Yes

Series EE Bond serial number

No

Treasury Direct account number

Yes

Property tax ID number

No

Vehicle title number

No

Medicaid Recipient ID (MMIS)

Yes

High School student ID number

No

College student ID number

Yes

Insurance policy number1

Yes

Insurance claim number

No

No-Fault Benefits and Workers’ Compensation Lawyers should be aware that no-fault automobile insurance is not off the hook when workers’ compensation benefits are primary. For years, your editor has taught seminars to other lawyers about this. However, on a recent severe injury case the file was closing after payment of the policy limits and your editor realized that the client had never submitted her replacement services. A letter to her no-fault carrier resulted in a check for over $12,000. Intrepid MAJ paralegal member Gail Schmit put the icing on the cake. Your editor was unaware of the 3-day waiting period for wage loss benefits in workers’ compensation, which was worth another $500.00 in no-fault wage benefits, thanks to Gail!

Number Type

Banned?

continued on next page

MINNESOTA TRIAL Spring 2017 21

PRACTICE POINTERS continued from page 21

Old Web Page Discovery

It’s called a CRASH, not an ACCIDENT! Your editor has been whining about the new DPS “police reports.” If you’re unaware, the new report removed all the familiar numeric codes (the ones you learned many years ago, but still kept a cheat sheet in your desk drawer for the obscure ones.)

I’m sure the new reports are easier for most people to read, since all those numbered codes have been replaced by the actual words. But where? ...the reports are three or four pages long minimum, and it seems to take old eyes forever to find stuff that was easy to find on the old single sheet reports.

What I didn’t notice till now… It’s actually entitled “Crash Report” and doesn’t use the dreaded “A” word.

Three Cheers for the DPS! We can now whine vociferously when defense attorneys try to use the word accident!

On the list, one member was looking for a Craigslist archive (No one asked why!). I don’t know if Craigslist keeps an archive, but the Internet Archive (anachronistically dubbed “The Wayback Machine”) does keep archives of that and 286 billion other webpages! https://web.archive.org/ Here you can find multiple versions of web pages you thought were long gone. There are also archives of books, music, and other interesting things. Go back and look at what you looked like in 2001. Better yet, find out what the defendant was advertising!

Know Your Judge Trial lawyers crave information about judges. Every judge is different, and lawyers just want to know what the judge expects so they can perform

within those expectations. For years your editor, familiar with the inner workings of a large metropolitan district, would send courtesy copies of motion papers on every case, usually with positive response. Imagine the surprise 25 years into practice when a judge started yelling at your editor for the same practice. (This was before e-filing as well).

We talk to our friends and colleagues and we dig around to find whatever we can. Does the judge do preliminary voir dire? Does the judge limit voir dire? Do I sit or stand when questioning jurors or witnesses?

Who does the judge expect to attend pretrials?

There is still nothing better than personal knowledge and networking.

Absent that, there is a valuable tool available on the Minnesota State Bar Association website. It’s found here:

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22 Spring 2017 MINNESOTA TRIAL

http://www.mnbar.org/members/committeessections/msba-sections/civil-litigationsection/judges’-courtroom-preferences/ or simply google “Minnesota judges’ courtroom preferences” and you will find results of a survey of questionnaire responses provided by most of the state’s 293 District Court judges answering just those questions. There is also a downloadable e-book version on the site as well at: http://www.mnbar.org/tools-onlineresources/practice-resource-center/ebooks/ Medical Authorizations Refusals Our staff has noticed a substantial uptick in claims from insurance companies and defendants that the medical providers will not accept our limited authorizations. In almost every circumstance when we have contacted the medical provider directly, they have told us that our authorizations are perfectly fine as long as they are used properly (original authorization only and used before they expire obviously).

Often the problem is that the insurers ask that the authorization be mailed to a scanning center, where the originals are scanned and shredded, and an electronic version forwarded to the adjuster. Of course, all our limited authorizations require originals, not copies, so this is often the problem. Most insurers, after a small adjustment, will provide a local address for the authorization.

Other times, it makes no sense. While I can hope that the mischaracterizations by the insurance adjusters that my authorizations are no good, I suspect that in at least some of the cases it is the insurance company’s attempt to get unrestricted or unlimited authorizations by misstating the problem with the insurer.

It is illegal for a medical provider to deny a medical request which has a valid HIPAA authorization attached to it. If you get such requests from insurers or defendants, check with the medical providers to see what the real problem is and I think you will find it is the defendant’s use of a scanned or photocopied authorization or maybe they just want to talk to your doctors in person and screw up your case.

MINNESOTA TRIAL Spring 2017 23

employment law report

“Right to Work” is Still Wrong Introduction

JUSTIN D. CUMMINS, of Cummins & Cummins, LLP, prosecutes employment, civil rights, and consumer protection cases. Justin is an MSBA Board Certified Labor & Employment Law Specialist. He is also past Chair of the Minnesota Stat Bar Association’s Labor & Employment Law Section and a past Officer of the National Employment Lawyers Association’s Eighth Circuit and Minnesota Boards. In addition, Justin has taught employment law and civil rights at the University of Minnesota Law School and Mitchell Hamline School of Law. Justin is consistently recognized as a Super Lawyer, and Minnesota Lawyer has identified him as one of the top attorneys in Minnesota.

While the Republican Party’s Presidential candidate professed to be concerned somehow about fairness for employees during the 2016 campaign, the Republican Party’s platform has expressed the exact opposite view. In short, the Republican Party has adopted an array of policies aimed at undermining workplace fairness in fundamental ways. For example, the Republican Party’s platform attacks the use of the Fair Labor Standards Act1 to protect employees, seeks to end prevailing wages under the Davis Bacon Act,2 strives to abolish project labor agreements that have improved compensation and other working conditions across the country, and demands the enactment of a national “right to work” law.3 Vice President Mike Pence, who ushered in antilabor legislation while Governor of Indiana, has been working closely with Speaker of the House Paul Ryan, another corporate-sponsored politician, to prepare and push through the Republican Party’s policy agenda regarding workplace rights and responsibilities.4 A national “right to work” law sits high on that agenda.5 The public debate about “right to work” has often been as misinformed as the impact of such initiatives has been negative. Recent events in Indiana, Kentucky, Michigan, Ohio, and Wisconsin exemplify this reality. Therefore,

24 Spring 2017 MINNESOTA TRIAL

it is important to understand what “right to work” actually would mean for employees in Minnesota and elsewhere when evaluating the best way forward.

I. “Right to Work” Is Still Based On A Falsehood And Would Encourage Freeloading In The Name of Freedom Many supporters of “right to work,” and even coverage by reputable media outlets, have regularly framed “right to work” laws as necessary so employees have the “freedom” not to be union members in a unionized workplace.

Both Federal and State laws have long established, however, that employees do not have to be union members in a unionized workplace.6 In fact, both Federal and State laws enable employees to refuse to join unions at the outset of employment, or subsequently to withdraw their membership in a union that represents employees in their workplace.7 Importantly, a union has a legal obligation to represent the interests of employees who refuse to join, or who withdraw membership in, the union in a workplace where those employees’ coworkers are members of that union.8 For example, unions still have to file and pursue grievances on behalf of non-union employees in a unionized workplace and to bargain with the employer regarding safety,

wages, healthcare, and other terms of employment for those non-union employees just as unions do for its members.9 Because the vast majority of union dues go to representational activities, such as handling grievances and collective bargaining, both Federal and State laws recognize that non-union employees – who necessarily benefit from union representation in a given workplace – must still pay a portion of the union dues paid by union members.10 Otherwise, those non-union employees would be getting something – in fact, a lot – for nothing.

Nonetheless, employees who choose not to be in the union representing them and their coworkers often still end up being free-riders to a certain extent.

For example, based on our observations, unions typically dedicate well over 90% of union dues to representational services as opposed to political or charitable contributions. Under existing State law, however, non-union public employees only have to pay – at the most – 85% of the union dues that their union coworkers pay.11 In short, non-union employees in a unionized workplace receive all of the benefits of union representation while paying substantially less than their union coworkers for the same benefits.

II. The Practical Impact Of “Right to Work” Around the Country: Still Less Safety, Less Employment Opportunity, And Less Workplace Democracy Given that employees already have the right not to be in a union despite working in a unionized workplace and, further, the right not to pay for political contributions by unions, “right to work” would change the law in only one meaningful way.

Specifically, “right to work” would allow employees to receive all of the benefits of union representation without paying for any of those benefits.

The “right to work” approach, then, resembles allowing someone to opt out of paying taxes necessary to provide for first responders, safe roads, good schools, clean drinking water, and other public services that benefit everyone. Such a scheme makes no sense.

Besides creating basic unfairness, “right to work” has meant less safety, less employment opportunity, and less workplace democracy in States that have adopted such an approach.

According to the data from the Current Population Survey of the United States Bureau of Labor Statistics, for instance, the rates of workplace injuries and deaths are much higher in “right to work” States.12 Government data also shows that wages are not only substantially lower in “right to work” States, but the wage gap between women and men and between people of color and whites is far greater there.13 These disparities exist after controlling for a full complement of individual demographic and socioeconomic factors as well as for macroeconomic indicators.14 In addition, fewer employees have healthcare coverage in “right to work” States according to a study by the Economic Policy Institute.15 Despite such “cost savings” for employers in “right to work” States, “right to work” laws do not boost job or income growth.16 Before Indiana adopted the “right to work” approach, the last State to do so was Oklahoma. Since adopting “right to work” a decade ago, Oklahoma has witnessed a 1/3 drop in manufacturing jobs and a 1/3 drop in new companies coming to the State to open businesses there.17 Not surprisingly, business surveys confirm that “right to work” laws rank low among the considerations for companies in deciding where to locate.18

BRENDAN D. CUMMINS, of Cummins & Cummins, LLP, handles the full array of labor & employment law matters, including negotiation, arbitration, and court litigation. He is an MSBA Board Certified Labor & Employment Law Specialist and a past Governing Council Member of the Minnesota State Bar Association’s Labor & Employment Law Section. Brendan has taught courses on labor law, civil rights, and constitutional law at Northwestern University School of Law, University of Minnesota Law School, and Mitchell Hamline School of Law. He is also consistently recognized as a Super Lawyer.

“Right to work” laws have also compromised workplace democracy by silencing the voices of employees. Because of the free-riding “right to work” has caused, unions have less resources to give voice to employee concerns in the workplace and otherwise to advocate for greater fairness in the workplace and beyond.19 In that regard, it warrants emphasizing that unions played an instrumental role in passage of the Occupational Health & Safety Act, the Family and Medical Leave Act, and the Voting Rights Act, among other vital public policies codified

by Congress or State legislatures.20 continued on next page

MINNESOTA TRIAL Spring 2017 25

EMPLOYMENT LAW REPORT continued from page 25

In addition, “right to work” States have unionization rates far less than what the popular will demands. Approximately 60% of employees want to belong to a union, but less than 6% are members of unions in “right to work” States.21 The unionization rate in free-bargaining States is generally higher than in “right to work” States, but it is still less than what employees want.22 The democracy gap in the workplace should not be surprising given that employers fire or otherwise retaliate against

approximately 25,000 employees each year for supporting or seeking to join a union.23 By contrast, there have been reportedly 12 instances of union coercion in obtaining signed union authorization cards in nearly 80 years – that is, since Congress established the existing labor law regime.24 III. The Nationally Coordinated Campaign For “Right to Work” Still Raises Concerns As Much About Democracy In The United States As It Does About Democracy In The Workplace It is not mere coincidence that certain legislators from Minnesota to New Mexico and from Alaska to New Jersey are simultaneously demanding adoption of “right to work” provisions.25 This effort has been coordinated and aggressively advanced by the American Legislative Exchange Council (“ALEC”), which absurdly has been designated a charity for tax purposes.26 As the Minnesota Association for Justice recently documented, ALEC is a group that has been funded and led by corporations like WalMart, ExxonMobil, AT&T, State Farm, Johnson & Johnson, and Koch Companies.27 ALEC holds private meetings at luxury resorts for corporate agents and allied State legislators to draft pro-corporate “model” legislation that those State legislators then seek to pass in their respective States.28 Approximately 20 legislators from Minnesota have been active recently with ALEC.29 ALEC reportedly has over 1,000 of its “model” bills introduced in State legislatures every year, with one in every five actually becoming law.30 ALEC’s arsenal of anti-employee “model” bills seek, among other things, to eliminate living-wage protections, prevailing-wage laws, and better minimum-wage standards.31 Among its anti-employee initiatives, ALEC has recently made “right to work” a priority just as the Republican Party overall has done. A consortium of purported charities like ALEC, including the Council of State Governments (“CSG”), have also dedicated considerable resources toward imposing similar pro-corporate laws in States across the country.32 Consequently, the “right to work” proposals around the nation have been strikingly similar. 33 In short, “right to work” not only threatens workplace democracy, it reflects the subversion of political democracy.34 As the nationally coordinated “right to work” campaign illustrates, corporate agents now draft self-serving legislation in secret meetings with State legislators who, upon return to their respective States, essentially become lobbyists for the corporate funders and leaders of ALEC, CSG, and allied special interest groups.

Such a campaign evidently serves the interests of the proverbial 1% rather than the general public.35 Conclusion “Right to work” is based on the falsehood that an employee working in a unionized environment must be a union member and pay for the union’s political contributions. Moreover, adoption of “right to work” nationally would likely cause a significant reduction in workplace safety, opportunity, and democracy – as has already occurred in States that have adopted “right to work” laws. In sum, the “right to work” scheme should be understood for what it is – a corporate giveaway contrary to the public interest and the general welfare.

26 Spring 2017 MINNESOTA TRIAL

29 U.S.C. §§ 201, et seq.

40 U.S.C. §§ 3141, et seq.

3 See generally John Nichols, “Why Workers Everywhere Should Be Scared by Kentucky’s Assault on Unions,” The Nation (January 5, 2017).

4 Id. 5 See generally Elizabeth Grossman, “House Republicans Vow To Do ‘Everything We Can’ To Roll Back Labor Law Gains,” In These Times (March 5, 2017).

6 See, e.g., Communication Workers of America v. Beck, 487 U.S. 735 (1988); Teachers v. Hudson, 475 U.S. 292 (1986); Minn. Stat. § 179A.06, Subd. 3; Minn. R. §§ 5510.1410, et. seq.

7 Id. 8 See, e.g., Int’l Broth. Elec.

Workers v. Foust, 442 U.S. 42, 47 (1979) (“[A] union must represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collectivebargaining agreements.”).

9 Id. 10 Beck, 487 U.S. at 746 (“Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost.”); see also Minn. Stat. § 179A.06, Subd.

3 (“An exclusive representative may require employees who are not members of the exclusive representative to contribute a fair share fee for services rendered by the exclusive representative.”) (emphasis added).

11 Minn. Stat. § 179A.06, Subd. 3.

12 See generally AFL-CIO, “Death on the Job Report,” http://www. aflcio.org/Issues/Job-Safety/ Death-on-the-Job-Report.

13 See generally Elise Gould and Will Kimball, “’Right-To-Work’ States Still Have Lower Wages,” Economic Policy Institute Briefing Paper No. 299 (April 22, 2015), http://www.epi.org/files/ pdf/82934.pdf 14 Id. 15 Id.; see also generally AFLCIO, “Deceptive Right To Work Laws Hurt Everyone,” http:// www.aflcio.org/Legislation-andPolitics/State-Legislative-Battles/ Ongoing-State-LegislativeAttacks/Deceptive-Right-to-WorkLaws-Hurt-Everyone.

1

2

Gordon Lafer, “Right to Work – For Less,” The Nation 24, 25-26 (February 26, 2012); see also generally Economic Policy Institute, “A tale of two states (and what it tells us about socalled ‘right-to-work,’” (January 12, 2017), http://www.epi.org/ blog/a-tale-of-two-states-andwhat-it-tells-us-about-so-calledright-to-work-laws/.

17 Id. 18 Id. 19 See generally Minnesota AFLCIO, “‘Right to Work’ Laws: Get the Facts,” http://www.mnaflcio.org/ news/right-work-laws-get-facts.

20 See generally Jobs with Justice, “Unions Making a Difference,” http://www. americanrightsatwork.org/index. php?option=com_issues&view=is sue&id=12&Itemid=90.

21 See generally Lydia Saad, “Americans’ Support for Labor Unions Continues to Recover,” Gallup (August 17, 2015), http:// www.gallup.com/poll/184622/ americans-support-laborunions-continues-recover. aspx?utm_source=Economy&utm_ medium=newsfeed&utm_ campaign=tiles; Richard B. Freeman, “Do Workers Still Want Unions? More Than Ever,” Economic Policy Institute Briefing Paper No. 182, 2 (February 22, 2007), http:// www.sharedprosperity.org/ bp182/bp182.pdf.; United States Department of Labor Bureau of Labor Statistics, “Union Members – 2011,” http://www.bls.gov/ news.release/pdf/union2.pdf.

22 Id. 23 Human Rights Watch, “Unfair Advantage: Workers’ Freedom Of Association In The United States Under International Human Rights 16

Standards” 85 (2000), http:// www.hrw.org/reports/pdfs/u/us/ uslbr008.pdf; see also generally National Labor Relations Board Annual Reports, “Remedial Actions Taken in Unfair Labor Practice Cases Closed,” http:// nlrb.gov/annual-reports.

24 See generally Human Resources Policy Association, “Mistitled ‘Employee Free Choice Act’ Would Strip Workers of Secret Ballot in Union Representation Decisions,” http://www.hrpolicy. org/memoranda/2004/04-10_ Employee_Free_Choice_Act_ PB.pdf.

25 See generally National Conference on State Legislatures, “2011 Legislation on Unions and Collective Bargaining,” http:// www.ncsl.org/documents/ employ/Unions2-15-11.pdf.

26 See generally Miles Mogulescu, “ALEC: The Behind-the-Scenes Player in the States’ Fight Against the Middle Class,” The Huffington Post (March 7, 2011), http://www.huffingtonpost.com/ miles-mogulescu/alec-statesunions_b_832428.html.

27 See generally Carla Ferrucci and Joel Carlson, “Have You Met ALEC?: A Needed Introduction To The American Legislative Exchange Council And How They Are Working To Undo Minnesota’s Consumer Protections,” Minnesota Trial 8-9, 26-29 (Winter 2012); Mary Bottari, “Hang on to That Paycheck! ALEC ‘Sharpens Focus on Jobs,’” (April 23, 2012), http://truth-out.org/ news/item/8693-alecs-vision-ofpre-empting-epa-coal-ash-regspasses-house.

28 Bottari, supra, at 9; see also ALEC Exposed, “What is ALEC?,” http://alecexposed.org/wiki/ What_is_ALEC%3F.

Ferruci & Carlson, supra, at 26.

See generally ALEC Exposed, “What is ALEC?,” http:// alecexposed.org/wiki/What_is_ ALEC%3F. 31 Bottari, supra (analyzing ALEC’s “Living Wage Mandate Preemption Act,” “Starting Wage Repeal Act,” “Prevailing Wage Repeal Act,” and initiatives promoting the privatization of prisons).

32 See generally Sarah Blaskey and Steve Horn, “Uncovering the Other ALECs” (May 16, 2012), http:// truth-out.org/news/item/9033subverting-the-statehouseuncovering-the-other-alecs.

33 See generally National Conference of State Legislatures Collective Bargaining Legislation Database, http://www.ncsl. org/issues-research/labor/ collective-bargaining-legislationdatabase.aspx; see also Bottari, supra (discussing ALEC’s “Public Employee Freedom Act” and “Public Employer Payroll Deduction Policy Act,” which have served as models for the “right to work” provisions being pushed around the nation).

34 See generally Lisa Graves, “About ALEC Exposed,” http://www.prwatch.org/ news/2011/07/10883/about-alecexposed.

35 See generally ALEC Exposed, supra; Ferruci & Carlson, supra, at 8-9, 26-29; Blaskey & Horn, supra.

For a more detailed discussion of the coordinated campaign orchestrated through ALEC and similar groups, see Sarah Blaskey and Steve Horn, “Exposed: The Other ALEC’s Corporate Playbook” (June 21, 2012), http://truth-out. org/news/item/9889-exposedthe-other-alecs-corporateplaybook.

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Social Security Disability and SSI David L. Christianson

(612) 913-4006

david.christianson@cpqlaw.com

MINNESOTA TRIAL Spring 2017 27

women for justice A Woman’s Place: At Counsel Table Being a trial attorney is tough. It’s a high-stakes, high-pressure job that requires being away from home for weeks-and sometimes months-at a time.1 Young lawyers rarely have the same opportunities to try civil cases early in their career as lawyers who entered the practice 20 or more years ago.2

ELIZABETH FORS is an associate attorney at Robins Kaplan LLP in Minneapolis. Her practice focuses on helping those who have been injured from medical malpractice or personal injury. She graduated summa cum laude from Hamline University School of Law, now Mitchell Hamline School of Law, where she attended classes while also working full-time as a paralegal. Ms. Fors gained valuable court experience assisting a number of medical malpractice trials while serving as a paralegal. Now, as an attorney, she is an active member of the Minnesota Association for Justice; Education Committee, Women for Justice as well as Minnesota Women Lawyers, American Association for Justice and the Mitchell Hamline School of Law Alumni Board.

For trial lawyers who are women or persons of color, it is an even tougher road. According to the Bureau of Labor statistics, law is one of the least racially diverse professions in the nation.

Eighty-eight percent of lawyers are white.3 And mostly male. Equity partners in multi-tier law firms continue to be disproportionately white men. NALP 2015 figures show only 17.4% of equity partners were women and only 5.6% were racial/ethnic minorities. Eighty-two percent were men.4 Plus, the make-up of attorneys making it to court is mostly men. Studies show when women do appear in court, most likely, it is not as first chair. In civil cases, men are three times more likely than women to appear as lead counsel and to appear as trial attorneys.5 Focusing on just the tort cases, the numbers show 79% of lead counsel are male.6 However, lack of female first-chairs is not explained by any lack of talent or ability.7 In a pioneering study funded by the DRI, judges interviewed offered that they often found women litigators better prepared and more likely to follow the courtroom rules than their male counterparts.8 In addition, women lawyers often have to demonstrate greater levels of competence and proficiency and are held to higher standards than their male colleagues.9

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Beyond the basic desire to win, most women face the ever present gender biases: being mistaken for the court reporter at depositions; being called “honey” (and sweetheart and dear for that matter) by opposing counsel, mediators and judges; subjected to a variety of gratuitous sexual innuendos; and more often than not, have been involved in cases where everyone in the room, judge or mediator included, was a man.10 In fact, 70.4% of women surveyed said that they had experienced gender bias in the courtroom.11 In order to make the most of their rare opportunities to appear in court, female trial lawyers need always put the best foot forward.

Inherently, women excel in areas well-suited to the courtroom and juries: reading people, thriving under pressure, and listening to others.

In the 2003 book, “The Essential Difference,” Cambridge psychologist Simon Baron-Cohen explores a number of, albeit politically incorrect, gender differences. Among his research-based conclusions is that females read faces better than males.12 In one study, girl babies preferred looking at faces, and boy babies preferred cars.

Additionally, women performed better than men at a test requiring identification of people’s emotions by looking only at their eyes.13 MIT researchers also found women are better suited to “read” the mental states of others from looking at their eyes.14 Women’s innate ability to understand the emotions of others is a critical asset in the courtroom. It can help the trial lawyer to know when to pick up the pace when the jury seems bored to notice when

Mary Ellen Egan, Too Few Women in Court; Female trial lawyers are still a minority in the nation’s courtroom. What will it take to change that disparity? Corporate Counsel (2016).

2 DRI Task Force on Women Who Try Cases, A Career in the Courtroom: A Different Model for the Success of Women Who Try Cases, DRI (2004).

3 Deborah L. Rhode, Law is the Least Diverse Profession in the Nation and Lawyers Aren’t Doing Enough to Change That, The Washington Post (May 27, 2015).

4 NALP, Women and Minorities Maintain Representation Among Equity Partners, Broad Disparities Remain; NALP Bulletin (March 2016).

5 First Chairs at Trial: More Women Need Seats at the Table, a Research Report on the Participation of Women Lawyers as Lead Counsel and Trial Counsel in Litigation, American Bar Foundation and ABA Commission on Women in the Profession (2015).

6 Id. 7 Id. 8 DRI Task Force, supra note 2.

9 First Chairs at Trial, supra note 5.

10 Shaana A. Rahman, Wanted: Women trial lawyers, Plaintiff Magazine (February 2013).

11 DRI Task Force, supra note 2.

12 Jan Nielsen Little, Ten Reasons Why Women Make Great Trial Lawyers, Daily Journal (June 1, 2006).

13 Id. 14 David Engel, et al, Reading the Mind in the Eyes or Reading between the Lines? Theory of Mind Predicts Collective Intelligence Equally Well Online and FaceTo-Face, PLoS One, (December 16, 2014).

15 Therese Huston, Are Women Better Decision Makers?, The New York Times (October 17, 2014).

16 Id. 17 Little, supra note 12.

18 Id. 19 Robert Hirschhorn, Lisa Blue, and Amanda Tyler, A Woman’s Place Is in the Courtroom, ABA Section of Litigation, The Woman Advocate Newsletter (Spring 2007).

20 Id. 21 First Chairs at Trial, supra note 5.

22 Rahman, supra note 10.

23 First Chairs at Trial, supra note 5.

1

opposing counsel is stressed, or even to understand when a witness verbally says one thing – but nonverbally screams the opposite. Capitalizing on and trusting these instincts can prove invaluable for the female trial lawyer.

Research also provides evidence that women under stress perform better than men. Neuroscientists at the University of Southern California studied decisionmaking between genders. Women and men made decisions about risk in similar ways under normal situations. But, add in stressors (researchers used gambling) and the findings were consistent: Men took more risks when they were stressed. They became more focused on big wins, even when they were costly and less likely.15 When women were stressed, however, from having to give a public speech, they actually found it easier than usual to empathize and take the other person’s perspective. Just the opposite happened for the stressed men – they became more egocentric.16 Additionally, women under stress (or giving birth or lactating) produce and more efficiently process higher levels of oxytocin, which promotes relaxation, lowers blood pressure and triggers an “affiliation” response.17 Testosterone, by contrast, enhances the effectiveness of stress-related hormones (adrenaline, cortisol and epinephrine), which increases blood pressure and aggression.18 A calm demeanor along with level-headed decisionmaking bodes well for women in the stressful trial environment.

Listening is an active skill, and women are thought to be better listeners. A 2000 study suggested that this difference may actually be biological.19 Men listen only with the left side of the brain, which is usually associated with listening and speech.

Women use both the left and the right sides of their brains, the right being associated with non-language auditory functions.20 “If you go by stereotyping, women have a great advantage because women have had to learn to listen – listening to judges is more important than talking to judges; listening

to what the witnesses are saying is more important than saying what you’ve already decided you want to say… Women have had to learn to do that.” Elizabeth Cabraser, a well-known litigator.21 Jurors make assumptions about you based on whether you appear to belong in the courtroom. If you are as comfortable in the courtroom as you are in your own living room, then the perception is you know what you are doing and are an authority.22 But how does one reach that comfort level when it is a year – or more – between trial appearances? Sign up and immerse yourself in trial training and advocacy programs, such as these offered by the National Institute of Trial Advocacy (NITA),23 the American Association for Justice (AAJ), and the Minnesota Association for Justice (MAJ). One place to start locally is MAJ’s inaugural Women Trial Lawyers Camp this November at Grand View Lodge.

Women lawyers have many advantages in the courtroom: they connect well with jurors, particularly with women jurors, who often comprise half or more of the jury pool; they are viewed as more credible and trustworthy; and they are in many instances over-prepared rather than under-prepared.24 Presenting the best evidence and case is most important, because when the jury deliberates, it should only focus on the evidence, and nothing more. And research suggests that is the case. In a 1996 study about juror reactions to attorneys in simulations, juror references made about attorneys were counted in 60 juries hearing an antitrust price fixing case and in 34 juries hearing a penalty phase of a death penalty case. Jurors made relatively few comments about attorneys, and instead focused overwhelmingly on the evidence. This research suggests that while attorneys are one of the messengers, they may not be the message; and that jurors focus primarily on the message.25 Good news for all trial attorneys – regardless of gender since the overriding advice experienced trial lawyers give is to be yourself and use your genuine voice. The jury will see through anything else.26

Id. Alexis A. Robinson, The Effects of Race and Gender of Attorneys on Trial Outcomes, The Jury Expert (May 2011).

26 Rahman, supra note 10.

24 25

MINNESOTA TRIAL Spring 2017 29

new lawyers Traumatic Injury Protection Program (TSGLI): An Overview of the Program’s Benefits and Pitfalls What is TSGLI?

ADAM J. KRESS is an attorney at Johnson Becker, PLLC. Adam exclusively represents plaintiffs in personal injury, workers’ compensation, wrongful death and disability claims. Adam also takes great pride in aiding in the representation of veterans throughout the United States in their claims for VA Disability and Traumatic Injury Protection (TSGLI) benefits.

As an undergraduate, Adam attended the University of Minnesota where he earned a B.A. in journalism and mass communications and a minor in history. While attending law school at William Mitchell College of Law, Adam dedicated much of his time to representing clients through the schools Civil Advocacy Clinic.

Adam is an avid outdoorsman, and enjoys hunting, fishing and downhill skiing in his spare time.

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As a rider policy to the Veteran Administration’s SGLI program1, the Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (TSGLI) provides automatic traumatic injury coverage to all servicemembers covered under the SGLI program. TSGLI provides short-term, lump sum financial assistance to severely injured servicemembers and veterans to assist them in their recovery from traumatic injuries. The law establishing the authority for TSGLI benefits appears in 38 USC § 1980A and 38 C.F.R. § 9.20. The benefits were initially provided to servicemembers who incurred severe physical losses because of traumatic injuries subsequent to October 7, 2001. Effective December 1, 2005, the VA extended TSGLI coverage to SGLI policies to retroactivity provide benefits to servicemembers.

TSGLI is not only for combat and activate duty injuries, but also provides insurance coverage for injuries incurred off duty. Effective October 1, 2011, the Veterans’ Benefit Improvement Act of 2010 removed the requirement that injuries during the retroactive period be incurred in Operations Enduring or Iraqi Freedom.

Thus, TSGLI coverage applies to active duty members, reservists, National Guard members, funeral honors duty and one-day muster duty servicemembers. To be eligible for payment of TSGLI benefits, the servicemember must meet all in series of legal requirements: First, the servicemember must be insured by SGLI when the traumatic event occurs (on or after October 7, 2001 to present). SGLI coverage is available through a servicemember’s respective branch of service.

Second, the servicemember must incur “a scheduled loss,” and that loss “must be a direct result of a traumatic injury.” A scheduled loss is an injury or “loss” that is suffered as a result of a traumatic event, and is listed on the Schedule of Losses. The Schedule of Losses outlines the injuries covered under TSGLI, and the amount payable for each injury. Scheduled losses are divided into two categories: Part I Scheduled Losses and Part II Scheduled Losses. Part I Scheduled Losses include injuries such as facial reconstruction, paralysis, burns, sensory losses, amputation, etc. Certain injuries listed in this Schedule may be combined and awarded as a single scheduled loss. By contrast, Part II

Scheduled Losses revolve around the inability to perform certain activities of daily living: (1) bathing, (2) continence, (3) dressing, (4) eating, (5) toileting, and (6) transferring. Under the ADL provisions of 38 USC § 9.20(6)(vi), a servicemember will be considered eligible for TSGLI benefits if the member is unable to independently perform at least two of the six previously mentioned ADL activities, and the member’s inability lasts for at least 30 consecutive days in increments of 30 days up to 120 days in duration. If a member applies for benefits under the ADL provision, a “medical professional” must sign two specific application forms (known as “Part B”) to supplement the application. In so doing, the medical professional certifies that the applicant meets the medical criteria set forth in the “TSGLI Procedures Guide” – or is otherwise unable to independently perform two of the six listed ADLs. Under both Schedules, payments range from a minimum of $25,000 to a maximum of $100,000, and increase in increments of $25,000 depending on the duration of the qualifying loss.

Third, the servicemember must have suffered the traumatic injury prior to midnight of the day that he or she separate from the uniformed services.

Fourth, the servicemember must have had suffered a scheduled loss within 2 years (730 days) of the traumatic injury. Finally, the servicemember must survive for a period of not less than seven full days from the date of the traumatic injury.

If a servicemember satisfies all five of these elements, the servicemember may initiate a claim for TSGLI benefits by submitting a “SGLV 8600 Application for TSGLI Benefits” form to their respective military branch for consideration.

Benefit determinations are made by each specific military branch of the Department of Defense.

For instance, a traumatically injured member of the United States Army would have their claim initially decided by the Army TSGLI Office out of Fort Knox, Kentucky. United States Marine Corps (USMC) and United States Navy claims are decided by the Navy in Tennessee. United States Air Force claims are decided by the Air Force in Texas. Once filed, the respective TSGLI office reviews the claim. The claim is then either granted, granted in part, or flat-out denied. Unfortunately for our servicemembers, the latter tends to be notably and significantly more frequent.

>>

Pitfalls of the Program The overarching problem with the TSGLI program, military-wide, is that most time these claims are denied without any legal and factual basis to support it.

Rather rely on facts and evidence, the TSGLI offices often relay on the TSGLI Procedures Guide in denying benefits.

While the TSGLI Procedures Guide does evidence the view of the Secretary with respect to program benefits, it does not carry the force of law.

The initial denial letter looks virtually identical for all servicemembers, regardless of their branch of service or injuries. When a servicemember’s claim is denied, they have the right to appeal their case. However, the administrative appeal process takes the servicemember back through the same agency that denied their claim in the first place. The administrative process involves multiple stages, and can add several years to a servicemember’s claim. Moreover, its often the case that the agency will maintain its systematic “rubber-stamp” approach in denying claims all the way up through the final level of appeal – the Board for Correction of Military Records.

Servicemembers with wrongfully denied TSGLI claims have the right to sue their cases in Federal District Court to seek judicial review of the agency decision-

making process during any time of the process. However, this does little to solve the issue of time. Having to litigate a claim in Federal Court can add a year or more of additional time to the claim process, on top of the previous years the servicemember spent working on appealing through the administrative process.

On Demand...

Additionally, discovery is rarely and narrowly granted in TSGLI litigation by the Federal District Courts. Typically, the agency is required to provide a complete copy of the claim file, but servicemembers’ attorneys do not get the chance to conduct detailed discovery.

Our firm presently represents several servicemembers with wrongfully denied TSGLI claims. While we have experienced some recent successes (e.g. Koffarnus v. United States, 175 F. Supp. 3d 769 (W.D. Ky. 2016)), its more often the case that those who are the most deserving are treated with the least respect. The TSGLI program forces traumatically injured servicemembers with meritorious claims, and who pay a premium for their benefits, to turn to the courts for their aide. Simply put, our servicemembers deserve better than what they’re receiving from the TSGLI program.

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MINNESOTA TRIAL Spring 2017 31

new lawyers Brief Overview of Rule 11 Sanctions: Frivolous Cases/Motions Background:

MATTHEW A. NOEL attended Syracuse University, where he founded the Vineyard Church Student Group and earned a Bachelor of Arts Degree in History.

He received his Juris Doctor degree from William Mitchell College of Law where he was the President of the Phi Delta Phi Honor Society, clerked for the City of Richfield’s Prosecutor’s office, for the Assistant Prosecutor for the City of Maplewood and for Aid to Injured Motorcyclists, where he exclusively worked on motorcycle personal injury claims. After graduating law school, Mr. Noel clerked for the District Attorney of Barron County, WI before becoming a clerk and attorney here at Woods & Thompson, P.A.

The word “sanctions” can be an attorney’s favorite word to intimidate or scare opposing counsel.

That threat however, usually has much more bark than it does bite because it is difficult to obtain sanctions against opposing counsel for two reasons.

First, the purpose of sanctions is to deter bad faith litigation. Second, the procedural rules allow an attorney to withdraw any submitted documents that are the subject of the sanction motion. As an attorney it is important to know the proper way to bring sanctions under Rule 11 of Minnesota Rules of Civil Procedure and how not to put oneself in the position to be sanctioned.

Authority: This article will focus on Rule 11 Sanctions for frivolous cases and motions; however, there are two rules that allow a party to bring a motion for sanctions. The first rule is under Rule 11.01 of the Minnesota Rules of Civil Procedure, and the second is under Minnesota Statutes § 549.11. Both contain the same language, however courts are more willing to sanction a party when a motion is brought under Minn. Stat. § 549.11. The reason for this preference is unclear; however, some have argued the court is more inclined to follow statutory authority when granting a motion for sanctions.

The Rule: When filing pleadings, documents or motions with the court, an attorney must certify that the documents are not being submitted for “for any improper purpose, such as to harass or to cause

Matthew Noel currently dedicates the majority of his practice to helping people injured in motor vehicle collisions.

When he is not in the office, Matthew enjoys attending sporting events, skiing, traveling to places he has never been before, volunteering as a Big Brother, for Big Brothers Big Sisters, and enjoys spending time taking his dog Cooper to the local dog park to play fetch in the warm weather.

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unnecessary delay or needless increase in the cost of litigation” and that “the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” Minn R. Civ. P. 11.02 (a) and (b). Additionally, under Rule 11.02 this certification applies to anything presented “to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other document....” Minn. R. Civ. P. 11.02. In other words, nearly every document submitted to the court can subject a party to sanctions.

Bad Faith: The courts will sanction a party if an attorney has acted in bad faith. Whether an attorney acted in bad faith is a question of fact that often is left to the trial judge’s discretion. To determine whether or not a party submitted documents to the court in bad faith, the court will evaluate the factual and legal underpinnings of the documents submitted. “In other words an affirmative duty is imposed on counsel to investigate the factual and legal underpinnings of a pleading” Uselman v. Uselman, 464 N.W.2d 130 (Minn. 1990). When determining whether or not an attorney acted in bad faith, the court will evaluate the alleged legal and factual underpinnings using the “reasonable attorney standard”. The “reasonable attorney standard” means the court will take an objective point of view when examining the alleged bad faith conduct.

When it comes to investigating the factual underpinnings, the court will look at the

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circumstances surrounding the alleged bad faith conduct. First, the court will look to see if the attorney has spoken with his/her client regarding the facts. Second, the court will determine if a reasonable attorney would believe the facts that were then presented to the court. Third, the court will look at the amount of time an attorney had to investigate the alleged facts before submitting the documents before the court. Fourth, the court will look at the resources that were available to the attorney to investigate the facts at issue.

Fifth, there must be evidentiary support that can be identified for the alleged facts. Lastly, the court will look at whether or not the evidentiary support will be available upon further investigation and discovery. After evaluating all the circumstances, the court will decide if an attorney acted as a reasonable attorney would have under the circumstances presented to the court.

It is incredibly important for an attorney to point out evidentiary support for the facts alleged in any motion or pleading presented to the court. Without research or evidentiary support for alleged facts, the moving party and/ or the court could find that alleged facts could be better described as a personal opinion. If the court finds that the alleged facts are more closely associated with a party’s personal opinion, that party will likely be sanctioned.

After reviewing the factual underpinnings, the court will then look at the legal underpinnings of the pleadings, motion or other document submitted to the court. Rule 11 allows an attorney to make a good faith argument for extension, modification, establishment of new law, or a reversal of current law so long as another reasonable attorney would make such argument. With the rule allowing such a broad interpretation of law to be argued, it is more difficult to show that an attorney acted in bad faith in regard to investigating the legal underpinnings of his or her case. If a party’s legal underpinnings misconstrue the law in an unreasonable way or are presenting a legal argument no reasonable attorney would make, a party moving for sanctions would have a strong argument that the alleged legal arguments can better described as a personal opinion. Personal opinions presented in court will result in sanctions.

Another way to show that an attorney acted in bad faith in regard to the legal underpinnings is to review opposing counsel’s case history.

If the prior cases have issues that are similar to the one before the moving party, one could find opposing counsel’s previously tested, and failed legal argument for an extension, modification, establishment of new or a reversal of current law. If opposing counsel has a history of making the same failed legal argument, then the moving party would have a strong case for sanctions based on failing to investigate the legal underpinnings.

Procedure: Even if an attorney has concrete evidence that opposing counsel failed to investigate the factual and/or legal underpinnings for the pleadings, motions or other documents submitted to the court, they still will not be sanctioned unless the attorney follows the proper procedures. Opposing counsel must be served with a motion, pursuant to Rule 5 of the Minn. R. Civ. P., and that motion must describe the specific conduct that violates Rule 11.02. This motion cannot be filed with the court for twenty one (21) days and must be made separately from all other motions.

Safe Harbor Rule: After being served with the motion, opposing counsel has twenty-one (21) days to correct the specific conduct alleged in the sanction motion before the moving party can file it with the court. This twenty one (21) day period is known as the “safe harbor provision” and Minnesota courts have a robust history in denying a motion for sanctions if the moving party failed to wait the required twenty one (21) days. The purpose of the provision is to give opposing counsel a chance at correcting the alleged conduct. Should the moving party have sufficient evidence that opposing counsel failed to investigate the factual and/ or legal underpinnings of their arguments, a reasonable attorney should/would take corrective action.

Before bringing a motion for sanctions, it is important for an attorney to speak with his/her client about this rule. An attorney can spend hours, if not days, investigating the factual and legal underpinnings that opposing counsel

failed to, or blatantly ignored. This can result in high attorney’s fees for working on a motion that may never go before the court.

Hearing; Even though a motion for sanctions must be made as a separate motion, a hearing on the motion can be joined with another hearing.

Once a motion for sanctions has been filed, the court must give the non-moving party a chance to respond on the record. During the hearing the moving party will generally have the burden of showing the non-moving party acted in bad faith; however, the court could place the burden on the non-moving party if it chooses.

The court will move the burden to the nonmoving party when there is strong evidence it acted in bad faith.

The Ruling: An attorney won his/her motion for sanctions.

The court should award them all of the fees and expenses they can think of, right? Wrong.

The court has a duty to impose the least severe punishment necessary to deter future bad faith litigation. A judge has complete discretion in determining the punishment necessary to deter bad faith litigation. The court’s deterrence could be anything. For example, if an attorney places a person’s full social security number in public documents, that attorney could be sanctioned to pay for a credit monitoring service. When it comes to requesting fees and costs, a moving party will only be entitled to the fees and costs associated with defending the bad faith conduct and motion for sanctions.

Conclusion: In conclusion, a court will only sanction a party to deter bad faith litigation. Sanctions can be an effective tool for an attorney that is dealing with a party acting unreasonably or that is lying to the court about the law and/or facts. Even though it can be an effective tool, it can also be a costly one for a client with potentially little benefit. It is always important to speak with the client and weigh the benefits and costs of bringing a motion for sanctions.

Now you know if a threat of sanctions is bark or bite.

MINNESOTA TRIAL Spring 2017 33

family law report

Child Support Parenting Time

In re the Marriage of Shearer and Shearer (Filed February 27, 2017) (Court of Appeals)

Appellant Father sought review of a district court order that modified the parties’ parenting schedule and also modified child support. The divorce decree had awarded the parties joint custody of the minor children, with a schedule providing each parent with equal parenting time.

GERALD WILLIAMS practices family law at Williams Divorce and Family Law, P.A. in Woodbury (www. divorcelawyermn.com; www. minnesotadivorceblog. com). Jerry has served as co-chair of the Family Law Section and on the Board of Governors of MAJ and is a fellow of the Minnesota Chapter of the American Academy of Matrimonial Lawyers. He can be reached at gwilliams@divorcelawyer. mn.com.

Respondent Mother obtained an order from the district court granting her weekend parenting time (but without changing the number of overnights included in each parent’s custodial time). The district court revised child support based upon the record that recent history suggested that Appellant had the children in his care less than 45% of the time, even though the previous (and amended) parenting schedule provided for equal parenting time.

The Court of Appeals affirmed the modification of parenting time, ruling that the modification was proper because it was based on the best interests of the children, and did not restrict Appellant’s parenting time. But the Court of Appeals reversed and remanded the child support modification because the district court did not calculate child support based upon the courtordered parenting schedule.

Child Support

In re the Matter of Hansen and Todnem (Filed February 13, 2017) (Court of Appeals)

Appellant Father sought relief from a district court child support order. The court calculated child support based upon combined monthly income of the parents in the amount of $16,868, resulting in child support of $424 per month. Appellant asserted that the court should apply a $15,000 cap on combined income, which would have reduced

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the amount of Appellant’s statutory child support obligation. The Court of Appeals affirmed, ruling that the $15,000 cap applies to the child support obligation (which would be $1,883 per month for one child), not the combined PICS. Appellant had also requested to provide in-home child care during before and after school hours.

The court treated this as a request for additional parenting time, and denied the motion based upon what was consistent with the child’s best interests.

The Court of Appeals affirmed, ruling that the district court properly ruled on the request, and was not required to make explicit findings on all statutory factors because the change in parenting time would not have been substantial.

The Court of Appeals also ruled that the district court did not abuse its discretion in considering premiums, deductibles, and copayments in determining suitable health care coverage for the minor child; and in allocating the tax dependency exemption to a parent irrespective of the parent’s ability to claim head of household status.

Child Care Support

In re the Marriage of Beckendorf and Fox (Filed February 13, 2017) (Court of Appeals)

Appellant Mother sought review of the Child Support Magistrate’s reservation of child care support. The court reserved child care support because Appellant had not provided documentation of actual child care expenses incurred. Appellant had provided documentation of past and prospective child care cxpenses.

The Court of Appeals reversed and remanded, ruling that documentation of child care expenses includes documentation of prospective child care expenses.

workers’ compensation report Workers’ Compensation Court of Appeals Case Law Updates January 2017 through March 2017

Causation – Gillette Injury Peterson v. Midwest Machine Tool Supply, Incorporated, #WC16-6004 (WCCA 03/07/17)

JERRY SISK is a graduate of the University of Minnesota Law School and has been practicing in the area of workers’ compensation since 2003. Jerry is with the Law Office of Thomas Mottaz in Coon Rapids. Jerry also maintains an internet blog focused on current Minnesota workers’ compensation issues and general highlights about the work comp system.

You can find his blog at www.compwonk.com.

The employee in this case alleged that her low back symptoms were a consequence of her poor ergonomic set up, including the chairs that she used. She came under the care of Dr. Asmussen, who in his medical notes stated that “The rationale behind this being work related is very reasonable.”, and that prolonged sitting was a “risk factor for development of disc disease, disc bulging, etc.” However, there was no narrative report obtained by the employee’s counsel addressing specific causation and that the work activities were in fact a substantially contributing cause to her disability. The employer and insurer had an independent medical evaluation in support of their denial of causation. The compensation judge at hearing found the employee not to be credible and concluded that the opinion of Dr. Strand to be more persuasive. The employee appealed on the grounds that Dr. Strand did not have foundation because he did not review an MRI which had shown bulges in the lumbar spine. The employee alleged then that Dr. Strand was mistaken with regards

to the employee’s diagnosis and was without foundation. The Worker’s Compensation Court of Appeals disagreed. First, they indicated that there was no medical opinion offered by the employee that the findings on the MRI had anything to do with the employee’s symptoms or condition. The WCCA went on to state that even if the MRI had diagnostic significance, it did not address the primary issue in the case, that being whether the employee had a Gillette injury. The Court reiterated to prevail in her claim, the employee needed to present a medical opinion making a causal connection between the work activity and the low back complaints. In this case, the employee failed to offer any doctor opinions stating that the work activities were a substantial contributing cause to her disability.

Causation – Temporary Injury Torgusson v. Lutheran Social Services, #WC16-6014 (WCCA 02/27/17)

The employee alleged to have sustained an injury to her low back after assisting a patient who was paralyzed. She went out and sought medical care and treatment and eventually had an MRI which showed changes at the L4-5 continued on next page

continued on next page

MINNESOTA TRIAL Spring 2017 35

WORKERS’ COMPENSATION REPORT continued from page 35

level. It was noted that the employee did have a significant history of low back complaints including an MRI that was done in 2008 showing bulging at the L5-S1 level. The employer and insurer had an independent medical evaluation done by Dr. David Carlson who opined that the employee had sustained a strain which would have resolved no later than eight weeks after the injury.

The employer and insurer filed a petition to discontinue benefits which was granted by the compensation judge.

He referred to the employee’s seven year history of chronic back pain and lack of any persuasive opinions from the employee’s doctors that the employee continued to suffer from the effects of the work injury. It should be noted that no medical opinions were offered by the employee or her attorney to support that the employee’s work injury had anything to do with the employee’s current

symptoms. Since Dr. Carlson was the only expert providing an opinion, the compensation judge accepted those opinions and the WCCA affirmed the judge’s decision. Again, this case establishes the importance of obtaining medical support to meet the employee’s burden of proof.

Evidence – Expert Medical Opinion Gianotti v. Independent School District #152, #A16-629 (Minn. 02/08/17)

The Minnesota Supreme Court had heard the appeal from the WCCA’s decision and reversed its findings.

Originally, the WCCA reversed a compensation judge’s finding that the employee did not sustain a concussion as a result of the work injury. The compensation judge in the case had

relied upon the employer and insurer’s independent psychiatric examination of Dr. Arbisi, who had determined that the employee did not sustain a concussion. On appeal, the WCCA overturned the decision on the basis that Dr. Arbisi lacked adequate foundation based on his expertise. This was appealed to the Minnesota Supreme Court who reversed the WCCA’s opinion.

First, they indicated that the original appeal did not raise the issue of Dr. Arbisi’s competence. Instead, it was an issue that was brought up by the WCCA. Because the Notice of Appeal and briefs to the WCCA failed to raise this issue, it was forfeited.

With respect to foundation, the Supreme Court overturned, indicating that Dr. Arbisi did have solid foundation.

The compensation judge’s Findings and Order were reinstated.

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36 Spring 2017 MINNESOTA TRIAL

Jurisdictions – Concurrent Ansello v. Wisconsin Central LTD., #WC16-5949 (WCCA 02/10/17)

The employee in this case sustained an admitted work related injury to his low back while performing longshoreman work. Benefits were initially paid under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The employee however later filed a Medical Request under the Minnesota Workers’ Compensation Act seeking payment of medical expenses. The matter proceeded to hearing where the judge denied benefits indicating that the employee’s claim for Minnesota Workers’ Compensation Benefits would supplant rather than supplement the benefits under the LHWCA. The judge denied the employee’s claim for lack of jurisdiction.

The WCCA provided an analysis of the LHWCA and the various cases that

have interpreted the Act. In summary, the Court evaluated Minnesota Supreme Court decisions and determined that the courts have allowed successive State Awards where Minnesota and another state pay for benefits for the same injury so long as the second Award is reduced by the amount of duplicate benefits paid under the other states Act. They determined that the compensation judge’s dismissal of the employee’s claims for lack of jurisdiction was clearly erroneous and reversed and remanded the case to the Office of Administrative Hearings for a hearing on the merits.

Intervenors Basting v. Metz Framing, Incorporated, #WC16-5971 (WCCA 01/05/17)

The employee in this case had sustained a work related injury and later filed a claim seeking payment of medical

bills, including those of an intervenor, Neurological Associates, who had failed to appear by telephone at the hearing.

The judge denied the claims of the intervenor, which had failed to appear by telephone for the hearing. The Court had previously heard a similar dispute in Fischer v. ISD #625, #WC16-5955 (WCCA 11/16/16) where the Court had determined that once a provider or other entity intervenes in a workers’ compensation case, it becomes a party and that the employee’s attorney may then only present the claims of the intervenor if it is unequivocally established at the hearing that the attorney represents not only the employee, but also represents the intervenor. In this particular case, no claim had been made by the employee’s attorney and as such the denial of the intervention interest was affirmed.

MINNESOTA TRIAL Spring 2017 37

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