MSBA Civil Litigation Section History
- Last Updated 5/14/02 -

Part I:
Historical Overview.

Table of Contents

A. In the beginning…

In the late 1970’s, Minnesota’s legal community faced an era of change. Some developments, such as tort reform proposals before the Minnesota Legislature and proposed changes to the ABA Code of Legal Ethics, had significant ramifications for civil litigators. It was against this backdrop that attorneys acting as individuals or through their professional organizations sought to have a clearer and more influential voice in the public policy debates that were shaping the landscape of civil litigation.

In 1978 the Minnesota State Bar Association (MSBA) was organized primarily into Sections, just as it is today. Sections charge individual attorneys membership dues, bring issues before the MSBA Board of Governors or the House of Delegates, and sponsor programming of interest and benefit to their members. The MSBA also had a number of Committees, not to be confused with the myriad of committees and subcommittees within each Section. MSBA committees have a mandate from the Board of Governors to study and report on issues of interest to the MSBA as a whole.

One MSBA committee in 1978 was the Committee on Civil Litigation. Some members belonged to the Minnesota Trial Lawyers Association (MTLA); others belonged to the Minnesota Defense Lawyers Association (MDLA). Discussions in the committee could be rancorous. As one former member recalls, "Whoever showed up with a majority would pass some resolution disliked by the other association."  Phillip Cole (C 79) chaired that committee and made heroic efforts to quiet that discord.{1}
 


Marc Whitehead

In 1978, a group of about half a dozen ambitious and energetic young litigators approached Mr. Cole about establishing a permanent Civil Litigation Section. Among them were G. Marc Whitehead (C 80), Robert King, Sr., and Duane Peterson (C 81-82). These litigators – and other founding members of the CLS – were members and leaders of both MTLA and MDLA, but saw a clear need to establish an organization with a mandate to bridge the gap between civil legal specialties. In the words of Mr. Whitehead, "[The CLS founders felt that] Minnesota had an outstanding trial bar, but our effectiveness at all of the activities that the Bar Association engaged in had been muted because we were all in our separate enclaves. Some people who were active in more than one niche practice wanted to communicate on overarching issues of trial practice."

The founders of the Civil Litigation Section exhibited a clear interest and passion for engaging public policy decision makers. Mr. Whitehead, for one, believed that "the bar had lost credibility with the legislature and in the public arena" and that "the trial bar in particular could regain that credibility if we could speak with a unified voice instead of cutting each other down in the newspapers or ignoring other practice areas."


Phil Cole


Ron Martell

Within a matter of weeks of the decision to create the Section, the Section charter and bylaws were drafted and a petition submitted to the MSBA Board of Governors to recognize the new Civil Litigation Section. The petition submitted to the Board of Governors on April 26, 1979 named Phillip Cole as the provisional chair with Ron Martell, Theodore Stone, and Marc Whitehead as vice chairpersons and listed 75 charter members from the ranks of the MSBA – and no doubt from the ranks of the founding officers’ law firms. Since all MSBA requirements for founding a new Section were met, the Board of Governors approved the Section.

A few weeks later Marc Whitehead was elected the first chairman at the first meeting of the CLS Governing Council. Few records indicate who sat on the original Council, except Ron Martell, Theodore Stone, Clifford M. Greene, Norman Perl, Richard Mahoney, Phillip Cole, and perhaps Catherine Cella, David Herr (C 85), Allan Saiks, and Elton Kuderer. Complete records of Council membership and officers are not available before the summer of 1981.

Mr. Cole helped convert his committee into a full-fledged Section and served on the early governing Council. Part of the process involved figuring out how to pursue the founders’ desire to influence public policy while avoiding the partisan divisiveness evident within the Civil Litigation Committee. Indeed, many of the contemporary legal reforms that sparked interest in founding the CLS were points of friction between plaintiffs and defendants. The solution to this problem was to commit the nascent Section to the goal of pursuing only neutral efforts to improve the quality and efficiency of civil litigation.

However, this constraint was not viewed as an impediment so much as an opportunity. As explained by an early member of the governing Council, Charles Hvass, Jr., Mr. Whitehead and the others concluded that in fact there was a need for "some moderate input regarding the public policy of trial law that wasn’t tainted by plaintiff or defense bias." The goal of non-partisan influence on legislative and bar association policy was from the outset the main vision and purpose for the CLS. As Duane Peterson recalls, "We [who founded the Civil Litigation Section] thought that the bar association should be neutral between defense and plaintiff members.  The idea was to try to find issues common to all litigators and to try by court rules or legislation to promote such [issues]." Rather than approach this task from a pro-plaintiff mindset like the MTLA or a defense mindset like the MDLA, the CLS would try to fix bad laws and procedures that harmed all parties.

A prominent issue of such non-partisan character that was on the horizon in 1979 was the creation of an intermediate Minnesota Court of Appeals. The CLS’s support for this initiative (the state Constitutional amendment permitting the Court of Appeals was passed in 1982) encouraged litigators of all stripes to join the ranks of the new Civil Litigation Section. Special term procedures for Minnesota judges was another "neutral" issue, since lawyers on both sides of the bar wanted to discourage "judge shopping." In 1982 the Court Rules Division, led by Janie Mayeron (C 88, 89), sent questionnaires and held panel discussions on special term procedures and making motion hearings more efficient, then submitted proposals to the Council. These efforts helped establish a precedent for when and how the CLS could bring its influence to bear on problems.

 


David Herr

David Herr (C 86) was in his first year or two of practice when he became involved in the leadership of the CLS. He recalls that the founders felt that the interests of a broad contingent of civil litigators "were not adequately represented by existing organizations such as the Minnesota Defense Lawyers Association (MDLA) or the Minnesota Trial Lawyers Association (MTLA)." They felt that the MDLA and MTLA focused narrowly on the field of personal injury law. For commercial litigators like Mr. Whitehead and attorneys practicing in more than one niche of civil law like Mr. Herr, the CLS could "fill the void." Mr. Herr and Mr. Whitehead also recall that the American Bar Association’s (ABA) Section of Litigation was a model that the founders had in mind when conceptualizing what the new CLS would do. However, it was also a negative model to some extent, as many felt that the ABA’s Litigation Section was partial to defense interests. The vision of the CLS’s impartial nature was the clearest, most consistent organizational theme of the CLS from the very beginning.


Joan Morrow

B. Structure

In its early incarnation, the CLS was composed of five divisions. The Legal Systems Division, chaired first by Joan Morrow and then James Samples, studied the cost of litigation, how the intermediate court of appeals would be set up, and the possibility of certifying "civil trial specialists" in Minnesota. The Communications Division, first chaired by Catherine Cella, put out the Section newsletter and coordinated information the CLS wished to place in other publications. The Legislation Division, led by Stan de la Hunt (C 83) monitored pertinent legislation and would coordinate lobbying and testifying before the Legislature. The Education Division, chaired first by Jeff Keyes (C 86, 87), was added in 1982. It organized opportunities for lawyers and judges to obtain supplemental professional training. Finally, the Court Rules and Procedure Division sought to improve the rules of all levels of the Minnesota civil court system.

At the mid-year meeting of 1981 at the Curtis Hotel in Minneapolis, the CLS board identified appellate court reform, civil litigation specialization, and the high cost of litigation as the main issues of concern to members.{2}  The CLS established an Intermediate Appellate Court Committee chaired by Wayne Popham to study and make recommendations about proposals for the operation of such a court.{3}  In November 1982, a state referendum altered the Minnesota Constitution to permit an intermediate appellate court, and several members of the CLS Council helped draft the rules for the new court as members of the Intermediate Appellate Court Rules Subcommittee chaired by Eric Magnuson. 1982 also saw the first official discussion of hiring a part-time staff person to support the activities of the CLS.

C. The High-Flying 80’s

Given the public policy orientation of the CLS founders, legislative lobbying was naturally a high priority the Council. This was probably also a function of the specific issues of the day that interested the CLS, and the mix of experience, interests, and talents of the first Governing Council. During his year as chair, Marc Whitehead recalls that he "probably set a record for being called on the carpet [by the MSBA], formally or informally, because of positions the Section took." Whitehead and the CLS Council wanted to be able to react quickly to events before they grew stale. That necessarily meant bypassing the rest of the MSBA on the way. 

This slightly maverick attitude may have inspired a 1980 MSBA policy prohibiting Sections from contradicting the legislative policy of the MSBA, surprising the MSBA with public announcements of positions on pending legislation, or adopting positions on legislation outside the scope of the Section’s declared sphere of interest. The CLS Council responded with a series of compromises with the MSBA leadership that was privately known as the "thousand flowers" policy, referring to a Chinese proverb about "letting the flowers bloom," meaning that diversity, promptness, and speed of response are more important than uniformity and conformity.

The goal was to keep the peace but still give the Section the flexibility to achieve its goal of impacting the public and legislative dialogue in a meaningful and timely way.

In the long run, the MSBA need not have worried too much about the CLS overstepping its bounds. Since those initial years the CLS has exhibited a cautionary attitude about ascertaining the proper role for the Section to play and little inclination to become directly involved in legislative affairs. In 1982, the Legislative Division decided to oppose legislation dictating how courts should conduct business and interact with attorneys. In 1984, the Division decided it was also appropriate to take positions on proposed laws that both affected plaintiffs and defendants equally and affected either the substance or the procedure of how lawyers work to resolve clients’ disputes.

Despite these careful efforts to provide an ethical framework for weighing in on legislative affairs, there are few records of the CLS actually doing so. In 1981, Tad Jude of the Minnesota House Judiciary Committee spoke at the mid-year meeting about certain pertinent bills before the House. In 1982, Stan DeLaHunt (C 83, 84) organized the Legislative Division into four three-lawyer panels reviewing bills on subjects related to civil practice like the 12-person jury and the Superfund bill. There is no record of CLS action on those bills. That year the division also recommended that the CLS support an increase in the budget for judges’ salaries, though the MSBA was itself already lobbying the Legislature to the same effect. Aside from that, the CLS did little more than occasionally include a description and analysis of pending legislation in the newsletter.

 


Larry Commers

In the early 1980s, the Council made recommendations for streamlining discovery, improving judges’ special term procedures, judicial selection, jury instruction guidelines (JIGs), legislation, and studying the "Kutak Report."{4}  In July 1986, the CLS newsletter, Litigation Law News, reported that Janie Mayeron would soon co-chair a seminar on new technology for presenting evidence, featuring Marc Whitehead as the main speaker.{5}  This appears to be the first time that the CLS moved into the realm of legal education. Minnesota Continuing Legal Education (CLE), the arm of the MSBA most associated with this type of work, did not assist in the seminar. Throughout its early history, the CLS has continued to offer seminars on dozens of subjects to its members, often in conjunction with Minnesota CLE.

Another major initiative of the mid-1980s was the push for a recognized professional specialty in civil litigation. The first proponent for this idea on the CLS governing Council was Elton Kuderer, who suggested it at the 1982 midyear meeting. However, Mr. Kuderer was absent when the issue came up at the May 1982 meeting, and the quorum declined to make a proposal about certification at the annual meeting. When the MSBA hired Susan Hedin to coordinate all attorney certification programs in 1985 the CLS Council, spurred by Rich Cesario, expressed renewed interest. The requirements for certification were approved at the 1987 annual meeting.{6} 

The Civil Trial Law specialty would go on to be a self-sustaining success. 101 lawyers were certified in 1988, 74 in 1989, 37 in 1990, 28 in 1991, and 23 in both 1992 and 1993. Though the numbers of new certifications declined after the initial surge of applicants, the certification expired after six years, bringing each class back for the re-certification course. Rich Cesario was unanimously nominated by the CLS for the MSBA Professionalism Award for his work on the certification program.

The mid-80s was a period of structural change within the Civil Litigation Section. In 1987, the units formerly known as "divisions" became "committees," apparently to differentiate the CLS from the ABA’s Section of Litigation. CLS Council members served on a Tort Reform Task Force that formed in response to the legislative agenda, the first of several task forces the CLS assisted.{7}  This denoted the beginning of a gradual shift away from standing committees broad responsibility (i.e. "Court Rules") toward groups formed to address a specific issue on an ad hoc basis.


David Lillehaug

A Pro Bono Committee was also formed between 1984 and 1987 with the support of future Section chair Jan Symchych (C 92). Under co-chairs David Lillehaug and Susan Nelson, the Pro Bono Committee ambitiously considered becoming a clearinghouse for pro bono litigation in Minnesota, publishing its own newsletter, taking on its own pro bono cases, and donating money to existing pro bono organizations. The committee also directed CLS funds to assist worthy pro bono causes, organized an asylum law project in 1988 (involving 40 attorneys), and organized 45 attorneys to assist the Legal Aid Society of Minneapolis’s Volunteer Family Law Program in the early 1990s. However, Council interest in pro bono work declined over time as its original champions left the Council and other organizations that were better equipped to coordinate large-scale pro bono initiatives, such as the Minnesota Justice Foundation (MJF), took on increased importance. 

The Governing Council gave renewed consideration to the question of its own composition in 1987. Several efforts were made to get more outstate members of the CLS actively involved in the leadership of the Section. Charlie Hvass played a role in trying to coordinate regional meetings in Duluth, Rochester, Moorhead, and Willmar. Ironically, when Council members Chuck Reite and David Lillehaug attended a Duluth Bar Association meeting, they reported that the Duluth bar expressed positive feedback about a new project called the Minnesota Advocacy Institute, grumbled about the complexity of the Civil Trial Specialist certification requirements, and were indifference about the state of communication between outstate and metro members of the CLS.


Judge Jim Morrow

1987 was dominated by preparation for the launch of the Minnesota Advocacy Institute (MAI).  The MAI planning committee included Jim Morrow, Jeff Keyes (C 87), and Jan Symchych. The Council pitched the idea to the general membership in the March, 1987 issue of Litigation Law News, describing MAI as an intensive, hands-on, week-long training experience. MAI would use the training techniques pioneered by the National Institute for Trial Advocacy (NITA) whereby students (attorneys) perform in a mock trial setting and are critiqued by experts in order to improve their courtroom skills.

"Major downtown law firms," MSBA, CLE, and the CLS contributed at least $155,000 to fund MAI. The MSBA also agreed to loan the Institute up to $60,000 if matching grants could be raised from law firms. Professor Roger Haydock of William Mitchell Law School became MAI’s Director in April 1988. MAI was officially founded in July 1988, offering courses in Trial Advocacy and Negotiation and planning to offer half a dozen other skills courses. Classes consisted of 8-10 student attorneys, with 2-3 faculty. Both students and faculty earned CLE credit, and MAI classes helped fulfill the civil trial specialist certification requirements. During its most successful years, according to Frank Harris of CLE, MAI trained over 400 registrants annually, more than any other "learning by doing" legal education program in the United States. Although MAI drew national attention as the only one of its kind, it was not financially self-sustaining over the long term and was abandoned in 1994.

Janie Mayeron and Charlie Hvass organized another lawyer education project called "eavesdropping on the jury" for the 1988 annual meeting, attended by 220 people. It began with two attorneys conducting voir dire and (out of the jury’s presence) described to the audience which jurors they would strike and why. The attorneys then presented opening and closing arguments before a panel of paid jurors selected from the official pool. After closing arguments, the audience watched the deliberations on closed circuit T.V. to see whether the lawyers’ strategies influenced the jury.


Peter Riley

The late 1980s and early 1990s were a period of substantial change for the Civil Litigation Section. As a letter to Section members in April 1991 put it, "We’ve been dreaming up and implementing projects at a breakneck pace the last few years – and frankly we’re running out of steam. Some of our projects have reached fruition, some are nearing conclusion – and others aren’t working." Turnover on the Governing Council was a factor: It appears that only three members of the 1987-88 Council (Jan Symchych, Peter Riley, and Chuck Reite) were still on it in 1992-93. The interests of the Section’s members were also changing. The 1994 member survey indicated that some of the high priorities in the early ‘80s such as pro bono work and support for Minnesota’s high school mock trial tournament were last in the list of priorities.

Some projects that demanded a great deal of time and energy from the CLS governing Council at the outset no longer did. For example, an independent board now handled the Trial Specialist Certification (though it was and is populated with current and former members of the CLS governing Council). Similarly, issues of funding and administrating MAI eventually passed from the CLS to MAI itself and to CLE. Some of the major issues and initiatives of the 1980s had passed with the times. It was imperative that the CLS find a renewed sense of purpose in the new decade.

D. The next Generation

Any attempt to encapsulate periods of the Section’s history into a few thematic periods is necessarily a rough approximation. That said, CLS began as the gazelle of the legal Serengeti, quick, alert, responsive to events in the headlines and before the legislature. This later gave way to developing civil litigators’ skills. The Council’s search for new projects slowly shifted the Council’s attention once again in the early 1990s, this time from the litigators to the courts. The notable achievements of the CLS in the 1990s would be in that realm, rather than in lawyer education and certification.

The activities of the CLS in the 1990s may be grouped into three rough categories. First, Council activities related to ongoing operations of the Section such as CLS luncheon meetings, the newsletter, assisting with the Civil Litigation Institute, and planning the annual meeting and Council retreat. The next group consists of short-term projects that did not deeply involve most of the Council, including assorted pro bono efforts, drafting a diversity plan, lawyer public relations, legislative issues, and drafting an amicus brief policy. Third, the creative energy of the Section was dominated by half a dozen long-term projects designed to enhance the underlying effectiveness of the civil courts and the jury system. Chief among these initiatives were the Discovery Task Force, the Jury Project and the plain language JIGs (which at one point or another involved half the Council), Judicial Evaluation, and Judicial Election.

Ongoing Section Operations. In August 1991, the governing Council rejected a proposal to re-start a Section newsletter because responses to the annual survey expressed little interest in one. For six or eight years formal communication between the Council and Section members was ad hoc. However, in August of 1996 surveys revealed that the sentiment of the Section changed and the Council introduced Civil Litigation News. The new newsletter appears to be a success, and by turning away from a "law review" format it has become significantly easier to produce.


Steve Rau

In July of 1993, Minnesota CLE contacted the chair of the CLS governing Council, Steve Rau (C 93), about starting something called the Civil Litigation Institute (CLI). CLE had been working for some time on the idea of running multi-day seminars in several areas of legal specialty. The first CLI was offered in December of 1993, with dozens of faculty lecturing or leading discussions on topics like "the strategic use of objections," "the growing irrelevance of relevance," "cases that need media files," "how to win cases during discovery," and "junk science." Many Governing Council members helped organize the first CLI and served as instructors and discussion moderators.{8}

The Council identified the CLI as a high priority in 1994, and Tim Eiden (C 97) and Ken Bayliss (C 00) attended CLI planning meetings on behalf of the Council in 1994 and 1995. However, the Council’s direct involvement declined each subsequent year because, as a repeat operation, CLE was better prepared to handle the planning itself. Attendance at the CLI declined from around 150 in 1993 to 95 attendees despite an excellent curriculum, but bounced back to 212 in 1995. The CLI is still offered annually by Minnesota CLE, with modest financial assistance from the CLS.

1993 marked the first year that the CLS held regular luncheon programs throughout the year with speakers on issues of interest to civil litigators. The idea was not only to update lawyers on recent events in the law and the profession, but also to provide regular opportunities for members of the civil trial bar to meet in a collegial atmosphere. One of the first luncheon programs was "The Use of Technology in Litigation" in May 1994. Between two and four luncheon programs have been offered subsequently in the winter and spring of every year.


Charlie Hvass, Jr.

Another now-routine function of the CLS governing Council is to select a winner of the Advocate Award that is presented at the annual meeting. Charlie Hvass, Jr. came up with the idea for the Award in 1991 and the council adopted it in 1992. As he explained in a letter to then-chair Steve Rau in 1993, he thought it unfair that only pro bono work earned official recognition from the MSBA.{9}  Since then, the Council has solicited nominations from members and presented the Award at the Section’s annual meeting. For the sake of consistency and to guide members in their nominations, in November 1997 the Council adopted a set of written criteria for evaluating candidates.

Planning the annual Council retreat in September and the annual Section meeting in the spring have been on the agenda of the Council every year since the Section was founded. The annual retreat, traditionally held at the Nicollet Island Inn, features a dinner speaker of interest to civil litigators and opportunities for socializing. About 100 Section members usually attend, though the Council periodically makes efforts to boost the number.

The Council retreat is held at a different location every year. Recent locations have included Wabasha, Red Wing, Fergus Falls, St. Cloud, Mankato, and Duluth. The Duluth retreat in 2001 set a record for creativity. The Council stayed in the famous Congdon mansion bed and breakfast and entertained as their guests the prosecutor and defense counsel who handled the well-known Congdon murder case.

Small Projects. Part of the Council’s agenda over the past decade has been driven by an eclectic group of projects of varying intensity and significance. For example, in 1990 the Council responded to a solicitation for feedback from the Supreme Court Task Force on ADR by supporting public funding for ADR efforts in Minnesota. For a short time in the early 1990s a task force studied the idea of implementing Edward Deming’s philosophy of Total Quality Management (TQM) in the court system. The work of CLS Council members on groups like the Civility Committee (1991), and the Complex Litigation Task Force (1992), led to recommendations to the CLS governing Council or the MSBA regarding what position, if any, should be taken on reform proposals. In 1993, the Council produced a plan for encouraging diversity in the Section in response to MSBA president Robert Guzy’s request. There is no evidence before or after the drafting of the plan indicates of dissatisfaction with the Section in this regard. No formal study on the subject has been conducted, either.


Ken Bayliss

Another project of the early 1990s included the CLS’s first amicus brief to the Minnesota Supreme Court in the case of Uselman v. Uselman on the use of Rule 11 sanctions. Council member David Lillehaug prepared the brief. The Council has been asked to write several amicus briefs on other issues. The Council considered declined them all on an ad hoc basis. In 1999 the Council adopted a policy evaluating amicus requests drafted by Ken Bayliss (C 00) but has not accepted a request since then.

Beginning in 1992, Charlie Hvass, Jr. led efforts to establish a Worker’s Compensation specialty certification modeled after the Civil Trial specialist certification. The project, targeted for completion by 1994, eventually succumbed to administrative and financial difficulties without bearing fruit. The primary problem, according to Mr. Hvass, was that it was cost prohibitive for the CLS to take on alone and unlike the earlier Civil Trial certification effort did not receive assistance from the MTLA and the MDLA. As a result, an exam was never written and no certification board was created.

In 1994, the Council considered projects based on the subjects "MSBA as ADR provider" and "Cameras in the Courtroom." They were rejected after because Minnesota already had enough ADR providers and the Council was tired of being reminded of the O.J. Simpson trial. The Council considered getting involved with the MSBA’s public relations campaign in 1994. The MSBA sought to make role models of lawyers who had performed outstanding service to clients or their community. Ty Bujold opined that it would be better to find clients who had been satisfied with the civil justice system rather than a specific attorney or firm lest the P.R. plan become an advertising gimmick. The Council took no action.


Ruth Harvey

Pro bono activities have never been the Council’s top priority. However, pro bono projects have never completely disappeared, either. The Council has championed several pro bono activities and initiatives over the years, but the level of enthusiasm for pro bono work waxes and wanes depending on the specifics of the project and Council members’ interests. One of the first pro bono efforts of the 1990s (led by George Soule and Jerry Snider) was to collaborate with the Legal Aid Society of Minneapolis’s Volunteer Family Law program. 45 attorneys handled 111 cases between 1990-93. In March 1992 the CLS donated $5000 to fund a pro bono MJF summer clerkship and ongoing Legal Aid Society projects. In 1994 Lynn Starkovich, Steve Rau, and Ruth Harvey explored the possibilities of a Children’s Project such as encouraging attorneys to serve as guardians ad litem. The idea was quashed because the substantial training and time commitment involved made it too ambitious. Since that time the CLS has made a small annual donation of $500 (usually over some objection) to the Children’s Law Center, but records do not indicate that the Council has taken any further action.


Terry Moore

An effort to improve Judicial Education was launched in November 1994, paralleling the concurrent Judicial Evaluation project. Norm Baer, Judge Carol Person, Brett Olander, Mark Peterson, and Ruth Harvey sought to make professional development resources more accessible for judges. The committee considered joining the Supreme Court Office of Education to develop an interactive computer program or series of videotapes that judges could use to educate themselves on various topics, but discarded those ideas as cost prohibitive. In 1996, after Terry Moore (C 01) became the committee chair, the committee established a lending library for judges consisting of two sets of MILE and Minnesota CLE materials. No records indicate how intensively judges have used these resources.

Major Projects. The CLS established the Discovery Task Force in January 1992 under the leadership of George Soule and Judge Robert Carolan to examine the effectiveness of the discovery rules and make recommendations for their improvement. Over fifteen months the committee consulted four attorney focus groups, a group of district judges, and the Corporate Counsel Association. In April 1993 it presented ten recommendations to improve civil discovery in Minnesota to the CLS governing Council, which adopted them all and presented them to MSBA Board of Governors, which did the same and presented them to the Minnesota Supreme Court in June 1993.

According to Mr. Soule, four of the Discovery Task Force recommendations – increasing judges’ pre-trial management roles, having mandatory scheduling conferences, identifying complex litigation early, and using telephone conferences to resolve disputes – are widely practiced today. Others, like the development of a series of "recommendations for effective and efficient discovery" by the CLS and changing Minnesota’s Rules of Civil Procedure to require mandatory affirmative disclosure of discoverable information, have not.


Steve Rufer


Judge Martha Simonett


Bob Feigh


Rosemarie Park

In 1994, the CLS Council established a Committee on Civil Juries, commonly called the Jury Committee. Members included Steve Rufer (C 96), Ty Bujold, Kathleen Peterson, Mike Milligan, and Peter Riley along with Judges Roberta Levy, John Stanoch, Martha Simonett, and Kathy Weir. The committee formed in response to a controversial presentation at the 1993 MSBA Convention that suggested that jury trials were outdated and ineffective. The Jury Committee set out to prove otherwise, but also to examine the system’s weaknesses and improve them.

After 18 months of talking to experts and running focus groups of ex-jurors from around the state, the Committee submitted its report to the CLS Council in June 1995. The Council adopted the 21 recommendations, many of which dealt with subjects already within judges’ discretion, some of which did not. They included ideas for controlling voir dire to make it efficient and effective and recommendation that courts permit jurors to ask questions and take notes (with certain safeguards) and permit alternate jurors to sit for deliberations. The project then moved into its implementation phase. Leo Stern and Bob Feigh carried the lion’s share of the load with help from Steve Rufer, advocating the committee’s recommendations to gatherings of lawyers and judges around the state. Bob Feigh described it as "our traveling dog and pony show."

Five of the recommendations required rule changes by the Minnesota Supreme Court, so the Council decided to bring them to the attention of the MSBA House of Delegates for ratification. Mr. Feigh and Mr. Stern first made the pitch to the Board of Governors, where the proposals survived several attempts to sink some of them with unfriendly amendments. The House of Delegates adopted all five as recommendations to the Supreme Court. Mr. Stern then argued before the Minnesota Supreme Court on behalf of the MSBA in support of amending the Rules of Civil Procedure to reflect the recommendations.

The Supreme Court ultimately left the decision on most of the recommendations in the hands of trial judges. Many of the recommendations are now widely practiced throughout the state today. One of the recommendations – to create a set of civil jury instruction guidelines (JIGs) written in plain English – led the CLS Council to hire Professor Rosemarie Park in November 1996 to work with the committee of district court judges to write "JIG 4" in plain English. Mr. Feigh recalls that though the judges were initially reticent about giving an outsider influence in drafting the JIGs, "she literally charmed them into letting her be part of the process." The JIGs were completed in 1999 and became effective in January, 2000, making Minnesota the first state in the country to have plain language civil JIGs. The CLS governing Council subsequently awarded Professor Park the Advocate’s Award for her outstanding (and underfunded) work.

From 1989-1990 the CLS had a Judicial Evaluation Committee chaired by Peter Sipkins (C 90). The committee was one of several state and county bar organizations studying the contentious issue of whether and how to create a system for giving judges feedback on their effectiveness. As reported in the February 1990 issue of the MSBA’s "In Brief" newsletter, the MSBA voted to adopt the recommendation for a pilot project of its Judicial Administration Committee over the recommendations of the CLS’s Judicial Evaluation Committee. The decision turned on the issue of public disclosure: The Judicial Administration Committee called for complete confidentiality and the CLS wanted to defer the question for a later time. Though improving the quality of sitting judges came up in of focus group sessions run by the Discovery Task Force in 1991 and Judge Jim Morrow kept the Council abreast of developments in the pilot judicial evaluation project in 1992, the issue remained dormant for several years.

 


Helen Meyer


Judge Jill Halbrooks

The Judicial Evaluation Committee was revived in 1994-95 under the leadership of George Soule and Helen Meyer (C 95), when the CLS Council reestablished it to establish a "state-wide, confidential, and mandatory system of periodic judicial evaluation." In January 1995, the CLS Council approved the committee report, calling for essentially the same thing as the1990 proposal. The MSBA Board of Governors "wholeheartedly" endorsed the proposal in February 1995, and Mr. Soule set about lobbying the Supreme Court for speedy implementation.

The cost of such a program remained a main point of contention and many judges feared that lawyers grading their performance could adversely affect their ability to get re-elected. Yet the alternative suggestions of using jury surveys or retired judges as observers were ruled out as cost ineffective. The initiative languished for several more years despite getting a new name (Judicial Development) and despite the efforts of the new committee chair, Terry Moore, Judges Betsy Martin, Marilyn Justman-Kaman and Jill Halbrooks, and others who ceaselessly lobbied for implementation.

Eventually, the cost argument was overcome in part because the district judges found they could model a cost effective system of judicial development used by the Administrative Law Judges. Other concerns, like confidentiality and the effect on judicial elections were addressed in the CLS Judicial Evaluation Resolution, adopted in April 2000. According to Mr. Moore, it was not until the CLS was able to get Chief Justice Blatz of the Supreme Court, the Conference of Chief Judges, and the Minnesota District Judges Association (with "encouragement" from Judges Martin, Halbrooks, and Kaman of the CLS Council) all on board in 2001 that the program could be implemented.{10} 

 


George Soule

The Judicial Election Committee was launched in 1996 after a controversial election brought the issue to everyone’s attention. Led by George Soule, the committee surveyed 500 Minnesota voters about their familiarity with judicial elections. The results were not surprising: The voters were clueless. In 1997, the Committee added members from outside the CLS and became the MSBA Judicial Selection Task Force. After a year of study, the Task Force concluded that as a nonprofit corporation, statute prohibits it and its component organizations from endorsing candidates, and focused its attention on trying to liberalize the rule and informing the public by encouraging media coverage of judicial elections. Though the issue of judicial election died out mostly of its own accord, in 1998 George Soule was appointed the chair of the Judicial Selection Commission to advise the governor’s office on judicial appointments.

 

Part II: Sustaining and Improving the Judiciary

Table of Contents

 

A. The Intermediate Court of Appeals

An item on the Civil Litigation Section agenda when it was formed in 1979 was the creation of an intermediate Minnesota Court of Appeals. The CLS Council’s support for this initiative helped attract litigators of all stripes to join the ranks of the new Civil Litigation Section. The importance of the issue to Section members was emphasized at the 1981 mid-year meeting at the Curtis Hotel in Minneapolis. That year the CLS established an Intermediate Appellate Court Committee to recommend proposals for the operation of such a court chaired by Wayne Popham. Jim Samples, chair of the Legal Systems Division, reported in June 1982 that the committee was planning to study the more highly evolved appellate court system in Wisconsin as a model for Minnesota.

 


Eric Magnuson


Janie Mayeron

The state Constitutional amendment permitting the Court of Appeals was passed in 1982. No documentation indicates how much impact the CLS Council’s efforts had on the structure or the operations of the Court of Appeals. In November 1982, after the referendum passed, several members of the CLS Council helped draft the rules for the new court as members of the MSBA Intermediate Appellate Court Rules Subcommittee chaired by CLS Council member Eric Magnuson. Apparently that committee had considerable influence over the rules adopted by the Court of Appeals.

B. Special terms procedure and other misc. court rules

Since both plaintiff and defense lawyers have incentives to discourage "judge shopping," another issue the Council investigated was special term procedures for Minnesota judges. From June 1982 to February 1983 the Court Rules Division, led by Janie Mayeron, studied special term procedures used by Minnesota trial courts. The Division sent questionnaires and held panel discussions on the subject, then submitted its proposal to the Council. The most significant suggestion was that once assigned, judges should see cases through to conclusion and thereby manage the cases more effectively. Although the Council adopted the Division’s recommendations, records do not indicate whether or how they were implemented.

During the same period, the Court Rules Division also examined the problem of variations in local court rules across Minnesota that could create disparate outcomes for similarly situated litigants and headaches for attorneys practicing in multiple judicial districts. CLS Council Chair Duane Peterson worried that perhaps the Council should adopt a set of guidelines for taking positions on court rules as protection against favoring plaintiffs or defendants similar to the legislative lobbying guidelines. It is not apparent what action, if any, took place at that time.

Unifying local court rules re-emerged as a CLS Council initiative in the late 1980s. Roger Johnson chaired the CLS Local Federal Rules Committee in 1987-88 that submitted recommendations to the 8th Circuit late in 1988. It is not clear whether the federal court noticed. Charlie Hvass, Jr. led a CLS subcommittee that worked with the MSBA Court Rules Committee. They issued a joint recommendation that the MSBA establish a Task Force to develop a uniform set of state trial court rules. The CLS did no further work on the issue, possibly indicating that the Task Force was not formed.

C. Complex Litigation Task Force

MSBA President Tom Tinkham appointed the Task force on Complex Litigation in 1991. Four of the nine members (Chair David Herr, Phillip Cole, Heidi Hoard, and Jan Symchych) were current or former Council members. The Task Force made four recommendations: Complex cases should be handled by a single judge from start to finish (changing General Rule of Practice 113), judges should use special procedures to better manage complex cases, a panel of experienced lawyers should serve as Rule 52 special masters, and a formal mechanism should exist to transfer and consolidate multiple related civil actions (changing General Rule of Practice 146).

These recommendations were reported and discussed by the CLS Council in April, 1992 but no apparently did not take formal action to endorse or oppose the recommendations. The Council may have been adopting a wait-and-see approach. However, since the Task Force is not mentioned again in CLS records, it appears that its recommendations had little effect on civil practice in subsequent years.

D. Judicial Development

From 1989-1990 the CLS had a Judicial Evaluation Committee chaired by Peter Sipkins. The committee was one of several organizations including the Hennepin County Bar Association, the District Judges Association, and the MSBA Judicial Administration Committee studying the contentious issue of how to give trial judges effective feedback on their performance.

A special meeting for all Section members was called on January 6, 1990 to discuss the proposal that the Section would submit to the MSBA House of Delegates for a pilot judicial evaluation program.{12}  The Judicial Administration Committee submitted a competing proposal supported by the District Judges. Council chair Janie Mayeron wrote to all CLS members explaining the proposals and inviting them to attend.

The CLS proposal called for jurors, civil litigants, and attorneys who practiced before the judge to rate judges on their judicial management skills and temperament, not legal competency. Judges would be informed of the results of these surveys annually and the data would be tallied over a period of years, upon which a rating of "satisfactory" or "unsatisfactory" might be released to the public. The CLS left the decision of public disclosure in the hands of the Supreme Court committee that would oversee the pilot program. The district judges were not amused. They supported the Judicial Administration Committee’s proposal largely because it provided for strict confidentiality in the pilot program as well as any subsequent permanent program.

In February 1990, the House of Delegates voted 125-93 to adopt the Judicial Administration Committee’s version of the pilot project over the recommendations of the CLS’s Judicial Evaluation Committee. The decision turned on the issue of public disclosure. After this showdown, the CLS Council did not address it for several years as the pilot program was implemented. The pilot program was completed in 1992.

The Judicial Evaluation Committee was re-born in 1994-95 under the leadership of George Soule and Helen Meyer, when the CLS Council reestablished it to pursue a "state-wide, confidential, and mandatory system of periodic judicial evaluation." According to Mr. Soule, there was "almost unanimous feeling on the Council that [judicial evaluation] would be the number one priority" because "it [had] languished in the court system since the pilot project in the early ‘90s and needed some impetus to get back on track." In January 1995, the CLS Council approved the committee report calling for essentially the same thing that had been called for in 1990. The MSBA Board of Governors "wholeheartedly" endorsed the proposal in February 1995, and Mr. Soule set about lobbying the Supreme Court for speedy implementation.


Judge Betsy Martin


Terry Mandel

Cost remained the main point of contention, and many judges – led by Chief Justice Sandy Keith and Chief Judge Burke – feared that lawyers grading judicial performance could create problems for good judges up for re-election. Yet the alternative suggestions such as using retired judges as observers were ruled out as cost prohibitive. The initiative languished for several more years despite getting a new name – "Judicial Development" – and the efforts of Judges Betsy Martin and Jill Halbrooks, the new committee chair Terry Moore, and others.

The main problem facing implementation was administrative inertia – nobody seemed to have both the will and the means to turn plans into action. This was resolved when Helen Meyer, Judge Terry Stoneburger, and Terry Mandel persuaded the District Judges Association to encourage each district to develop its own evaluation system in 1997. While this approach was hardly uniform, it got the ball rolling. Eventually, the cost problem was overcome in part because the Administrative Law Judges already had a cost effective judicial development system in place that the district judges could model. In April 2000 the CLS Judicial Evaluation Resolution stressed both uniformity and confidentiality for the permanent evaluation program.

By keeping the issue of judicial development alive for over ten years, the CLS accomplished two things: It outlasted some of the most vociferous opponents and gave many people the chance to hear the arguments on both sides and reach an informed conclusion. According to Mr. Moore, it was not until the CLS was able to get Chief Justice Blatz of the Supreme Court, the Conference of Chief Judges, and the Minnesota District Judges Association (with "encouragement" from CLS Council members Judges Martin and Kaman) all on board in 2001 that the program could be implemented.

E. Discovery Task Force

The CLS established the Discovery Task Force in January 1992 to examine the practical effectiveness of the discovery rules and make recommendations for their improvement. George Soule and Judge Robert Carolan co-chaired the task force of about a dozen CLS members. The Task Force first surveyed all members of the CLS, MTLA, and MDLA. The committee then met with at least four attorney focus groups, a group of district judges, and a delegation from the Corporate Counsel Association. In April 1993 the Governing Council adopted the committee’s ten recommendations to improve civil discovery in Minnesota and presented them to MSBA Board of Governors, which did the same and presented them to the Minnesota Supreme Court in June 1993.

According to Mr. Soule, four of the Discovery Task Force recommendations – increasing judges’ pre-trial management roles, having mandatory scheduling conferences, identifying complex litigation early, and using telephone conferences to resolve disputes – are widely practiced today. Others, like the development of a series of "recommendations for effective and efficient discovery" by the CLS and changing Minnesota’s Rules of Civil Procedure to require mandatory affirmative disclosure of discoverable information, have not.


Norm Baer


Ruth Harvey

F. Judicial Education efforts

An effort to improve Judicial Education was launched in November 1994, paralleling the concurrent Judicial Evaluation project. Norm Baer, Judge Carol Person, Brett Olander, Mark Peterson, and Ruth Harvey set out to find ways to make professional development resources more accessible for judges. When it became apparent that the committee’s work would not lead to actual "face time" and schmoozing with judges, some members left the committee.{13}

The committee seriously considered joining the Supreme Court Office of Education to jointly develop an interactive computer program or series of videotapes that judges could use to educate themselves on various topics, before discarding those ideas as limited in value and cost prohibitive. After Terry Moore became the committee chair in 1996, the committee established a lending library for judges consisting of two sets of MILE and Minnesota CLE materials. This involved minimal cost, was easily implemented, and is widely regarded the kind of common-sense assistance the CLS can offer judges when they have difficulty looking after themselves. No records indicate how intensively judges have used these resources.

G. Jury Task force / JIGs

In 1994, the CLS Council established a Committee on Civil Juries, commonly called the Jury Committee. Among the members were Steve Rufer, Ty Bujold, Kathleen Peterson, Mike Milligan, and Peter Riley along with Judges Roberta Levy, John Stanoch, Martha Simonett, and Kathy Weir. The committee formed in response to a controversial presentation at the 1993 MSBA Convention that suggested that jury trials were outdated and ineffective. The Jury Committee set out to prove otherwise, but also to examine the system and repair its weaknesses.

After 18 months of talking to experts and running focus groups of ex-jurors from around the state, the Committee submitted its report to the CLS Council in June 1995. The Council adopted the 21 recommendations, many of which dealt with subjects already within judges’ discretion. Among the committee’s recommendations were ideas for making voir dire more efficient and effective, a recommendation that courts permit jurors to ask questions and take notes (with certain safeguards), and recommendation that courts permit alternate jurors to sit for deliberations. The project then moved into its implementation phase. Leo Stern and Bob Feigh carried the lion’s share of the load with help from Steve Rufer, advocating the committee’s recommendations to gatherings of lawyers and judges around the state in a "traveling dog and pony show."

Five of the recommendations required rule changes by the Minnesota Supreme Court, so the Council decided to bring them to the attention of the MSBA House of Delegates for ratification. Mr. Feigh and Mr. Stern first made the pitch to the Board of Governors, where the proposals survived several attempts to sink some of them with unfriendly amendments. Victory was finally won when the House of Delegates adopted all five as recommendations to the Supreme Court. "When that happened," says Mr. Feigh, "both the MDLA and the MTLA filed amicus briefs in opposition to the proposal that alternate jurors should deliberate, so we knew we were doing something right." Mr. Stern then argued before the Minnesota Supreme Court on the MSBA’s behalf supporting the petition to amend the Rules of Civil Procedure.


Michael Steenson

The Supreme Court ultimately left the decision on most of the recommendations in the hands of trial judges. Many of the recommendations are now widely practiced throughout the state today. One of the suggestions was to develop a set of civil jury instruction guidelines (JIGs) written in plain English, though many legal professionals thought it couldn’t be done. Ruth Harvey and Terry Wade introduced Michael Steenson, the reporter for the committee of district court judges assigned to rewrite the JIGs, to Prof. Rosemarie Park.  Prof. Park, who was a British elementary school teacher before earning an Ed. D. from Harvard, teaches at the College of Education and Human Development at the University of Minnesota. She showed Steenson how JIGs could be drafted in plain language, and the two of them hit it off. When the CLS Council hired Prof. Park to work with Steenson’s committee to write "JIG 4" in plain English in November 1996, as Ruth Harvey recalls, "They could hardly say they were NOT in favor of juries understanding their instructions."

Mr. Feigh recalls that though the judges were initially reticent about giving an outsider influence in drafting the JIGs, "she literally charmed them into letting her be part of the process." Committee members with CLS Council ties included Kathy Weir, Marilyn Kaman, and Duane Peterson. Ruth Harvey and Terry Wade served on the lawyers’ advisory committee. The project took two years to complete and became effective in January, 2000, making Minnesota the first state to have plain language civil JIGs. The CLS governing Council subsequently awarded Professor Park the Advocate’s Award for her outstanding (and underfunded) work.

 

Part III – Raising the Bar

Table of Contents

The CLS first considered directly assisting trial attorneys with the practice of law in August 1982. MSBA president Ted Collins asked the CLS to devise solutions to the perceived problem of young lawyers not getting enough courtroom experience. At the time, the CLS Council decided that CLE and other MSBA committees were better equipped to address that problem and declined to get involved, effectively deciding that it was beyond the scope of the Section’s mission.

The governing Council apparently did not revisit the issue again until July 1986, when the CLS newsletter reported that Janie Mayeron would soon co-chair a one-day seminar on the use of new technology to present evidence, featuring Marc Whitehead as the main speaker. {14}  This appears to be the first of many instances that the CLS Council devoted time and resources to furthering the cause of legal education. Minnesota Continuing Legal Education (CLE), the arm of the MSBA most associated with educating lawyers, did not assist in the seminar. The CLS has sponsored dozens of seminars alone or in cooperation with Minnesota CLE, sometimes for CLE credit.

A. The Minnesota Advocacy Institute

A major project in 1987 was the preparation for the launch of the Minnesota Advocacy Institute (MAI). The MAI planning committee included Jim Morrow, Jeff Keyes (C 87), and Jan Symchych (C 92). The Council pitched the idea members in the March, 1987 issue of Litigation Law News, describing MAI as an intensive, hands-on, week-long training experience based on Minnesota trial law. Classes were conducted in conference rooms and mock courtrooms in the basement of the old MSBA building on Nicollet Mall in Minneapolis. MAI used techniques pioneered by the National Institute for Trial Advocacy (NITA) whereby students performed in a mock trial setting and were critiqued by experts in order to improve their courtroom skills. MAI was intended for lawyers with at least three years of experience and responded to the need for a method to train young lawyers, though it also welcomed more experienced attorneys.

The MAI planning committee secured at least $155,000 from "major downtown law firms" as well as $25,000 from the MSBA, $10,000 from CLE, and $25,000 from the CLS budget.{15}  The MSBA also agreed to loan the Institute up to $60,000 if that amount could be raised in matching grants from law firms. To encourage this, the Institute offered seats on its board of directors to law firms that contributed at least $5000.

Professor Roger Haydock of William Mitchell Law School was selected to direct MAI in April 1988. In July 1988, MAI was officially founded, offering courses in Trial Advocacy and Negotiation and plans to offer half a dozen other practical courses. The Institute planned for class sizes of 8-10 student attorneys, with 2-3 faculty per class. Both students and faculty would be eligible for CLE credit, and participation in Institute courses could be counted toward obtaining certification as a civil trial specialist.{16} 

MAI developed classes of five levels of intensity ranging from eight full days (45 CLE credits, $1395 tuition) to two nights per week for a month (32.5 CLE credits, $1100 tuition) to two-day seminars (14 CLE credits, $425 tuition). MAI initially marketed its services as a supplement to large firms’ in-house training programs and stand-alone training for lawyers without access to such programs. However, by 1990 it was also offering to conduct in-house training for large Twin Cities law firms. MAI is probably the main reason the 1991 survey showed that Section members rated programs geared toward "education for members" as the most important endeavors of the CLS.

MAI was operated jointly by the CLS and CLE until 1994. In fact, over twenty former, current, and future CLS Council members served as lead or assistant MAI faculty.{17}  According to CLE director Frank Harris, MAI trained over 400 attorneys a year, more than any other lawyering skills course in the country. From October 1988 through June 1992 MAI published its own newsletter/brochure four times a year.{18} 

According to former MAI instructor Maury Landsman, the extended time commitment the Institute required was more likely to unexpectedly conflict with the needs of a student’s law practice than a regular CLE seminar. Although MAI courses were reasonably priced on a per-credit basis, solo practitioners and small firms were daunted by the large price tag for a 45-credit course. Although MAI drew national attention as the only one of its kind, economic realities eventually caught up with it and it was abandoned entirely in the mid-1990s.

B. Eavesdropping on the Jury

Another CLS endeavor in the realm of lawyer education was an "eavesdropping on the jury" presentation made at the 1988 midyear meeting attended by 220 people. David Maring, Janie Mayeron, and Charlie Hvass, Jr. were the key CLS Council members involved. It began with two attorneys conducting voir dire and (out of the jury’s presence) described to the audience which jurors they would strike and why. The attorneys then presented opening and closing arguments before a panel of paid jurors selected from the official pool. After closing arguments, the audience watched the deliberations on closed circuit T.V. to see whether the lawyers’ strategies influenced the jury. Due to its wild popularity, the program may have been repeated the next year before the law of diminishing returns took hold. Mr. Hvass notes that while it isn’t a program to be run every year, "eavesdropping on the jury" has strong potential for being repeated in the future since the subject matter never goes out of style.

C. Civil Litigation Institute

In December of 1993, the CLS co-sponsored the first annual Civil Litigation Institute (CLI) with Minnesota CLE.{19}  Unlike MAI, the CLI was the initiative of CLE. The Institute was envisioned as an annual seminar running several days to a week, covering dozens of topics germane to civil litigation. The first year, over two dozen faculty members spoke on or led discussions on topics like The Strategic Use of Objections, The Growing Irrelevance of Relevance, Cases that need Media Files, What the Trial Judge Wants and Expects, How to Win Cases During Discovery, Auto Product Liability Issues, Junk Science, Jury Selection. CLS Council members, Kathleen Peterson, Eric Magnuson, David Herr, Charles Hvass, Carolyn Chalmers, George Soule, Martha Simonett, and Jan Symchych served as faculty.

The first year’s program was a success, and at the annual Council retreat in September 1994 the Council designated CLI as one of the Section’s main projects. However, attendance at the second annual Civil Litigation Institute was down 50% from the previous year with ninety to one hundred attendees.{20}  The Council concluded that although the presentations were again excellent, the mid-week in December timing wasn’t ideal, or perhaps it ran too long. Plans were laid to hold the Institute for a third time in 1995, this time over a two-day stretch spanning a weekend. The August 1996 survey of the Section’s members revealed that the Civil Litigation Institute was one of the most popular programs in the history of the CLS.

Unfortunately, attendance continued to slide. Despite putting on yet another well-organized, interesting program, the Institute garnered only 70 attendees in 1997. The Council eventually decided to leave the business of providing lawyer education programs, feeling that the benefits of being involved in that arena did not justify the investment of time, money, and energy that it required. Minnesota CLE still provides seminars on issues of interest to civil litigators, but the CLS Council no longer plays an active role in the planning and preparation of those events.


Elton Kuderer

D. Professional Certification Programs

The CLS made two efforts to establish professional certification programs to benefit its members. The first, the Civil Trial Specialist Certification, began in 1985 and came to fruition in 1988, first championed by Elton Kuderer. The second, the Workers Compensation Specialist Certification, began in 1993 and concluded unsuccessfully in 1994. Charlie Hvass recalls, "Certification was an advertising issue." It became important "when changes to the ethics rules in the early 1980s permitted more aggressive advertising by lawyers" and practitioners began holding themselves out as "expert" litigators.

By taking control of certification programs, the MSBA acted to protect the legal establishment from the increased competition that less experienced lawyers presented with the aid of aggressive advertising. The MSBA also arguably acted to protect unsophisticated consumers of legal services who might otherwise be "duped" into hiring a less experienced attorney than they otherwise would or paying higher fees to a less experienced attorney than they otherwise would. For these reasons the MSBA sought to prevent attorneys from advertising themselves as "certified" experts unless they had literally and figuratively paid their dues. Establishing the specialty never had anything to do with excluding attorneys from civil trial practice or any other area of practice, and any suggestion to the contrary is a vicious rumor.

At the 1982 midyear meeting Elton Kuderer became the first proponent on the CLS governing Council for establishing a professional specialty in civil litigation. However, when the issue came up at the May, 1982 meeting, Mr. Kuderer was not present and the quorum opted not to make a proposal about it at the annual meeting. The initiative atrophied until 1985 when the MSBA hired Susan Hedin to coordinate all attorney certification programs. The CLS Council, spurred by Rich Cesario, then expressed renewed interest in establishing a Civil Trial Law specialty.

The greatest obstacle was devising a set of criteria that was both stringent enough that " not anybody who passed the bar exam would qualify" but flexible enough that practitioners with many years of legitimate litigation experience would be able to qualify even if they tended to settle nearly all their cases before a verdict was rendered. It took nearly a year of getting feedback from the Section and other organizations like MDLA and MTLA, negotiating, and re-drafting the certification requirements before an acceptable set of requirements were prepared. {21}  The final statement of requirements for becoming a certified Civil Trial Law specialist was approved at the 1987 annual meeting.{22}  The requirements may have changed again after 1987.

The Civil Trial Law specialty would go on to be a self-sustaining success. 101 lawyers were certified in 1988, 74 in 1989, 37 in 1990, 28 in 1991, and 23 in both 1992 and 1993. Though the numbers of new certifications declined after the initial surge of applicants, the certification expired after six years, bringing each class back for the re-certification course. Rich Cesario was unanimously nominated by the CLS for the MSBA Professionalism Award for his work on the certification program.

Charlie Hvass, Jr. spearheaded efforts to establish a Worker’s Compensation specialty certification, modeled after the Civil Trial specialist certification, beginning in 1992. The Council anticipated that 40-60 lawyers would apply for certification in the first year, with declining numbers in each subsequent year. The project, targeted for completion by 1994, eventually succumbed to administrative and financial difficulties. The $10,000 that the CLS put up to initially fund the program was never spent. The primary problem, according to Mr. Hvass, was that it was cost prohibitive for the CLS to take on alone and unlike the Civil Trial certification effort did not receive assistance from MTLA and MDLA. The state Workers’ Compensation Commissioner was concerned that the certification didn’t offer a benefit, given Minnesota’s no-fault system. The lack of a national exam to borrow from also hindered the Worker’s Comp certification effort. As a result, an exam was never written and no certification board was created.

E. Miscellaneous

In 1993, the Council began organizing several luncheon presentations for civil litigators each year. Though the luncheons featured speakers of local, state, or national renown, they were not efforts to educate so much as to engage CLS members in meaningful dialogue about the profession. These are discussed in more detail in Part V, "Strengthening the Social Fabric of the Bar."The Section also made efforts in the mid-1990s to improve educational opportunities for Minnesota judges. These are discussed under Part II, "Sustaining and Improving the Judiciary."

Part IV: Communication

Table of Contents

Communication issues for the CLS have generally fallen into three categories: the Section newsletter, trying to avoid a monopoly of Section leadership by metro-area attorneys, and institutional record keeping. Each of these will be addressed in turn.

A. The Section Newsletter

Like other organizations, the CLS has used regular newsletters to inform members of recent developments, give notice of upcoming events, and occasionally to attempt to win support for the Council’s agenda. The CLS newsletter in the 1980s was more like a mini-law review than the polished bulletin that developed in the 1990s. When the Section was first organized, one of the original subcomponents was the communications division, responsible for producing a newsletter and coordinating the distribution of information to Bench & Bar and other organs of the local legal press, as well as the mass media. Catherine Cella was the first chair of the communications division, but David Herr was largely responsible for producing the newsletter before he was elected CLS chair in 1986.

The earliest surviving communication to CLS members is a letter dated February 25, 1981 about the outcome of the mid-year meeting. The letter identified appellate court reform, developing a civil litigation specialization, and addressing the high cost of litigation as the main subjects the Section was interested in pursuing in the coming year. It also invited CLS members to attend a presentation by the chair of the Minnesota House Judiciary Committee on pending matters of interest to civil litigators.

Subsequent communication with members was done in a more formal pamphlet-formatted newsletter. The first newsletter distributed to CLS members, bears little resemblance to today’s professional looking documents. It contained no graphics and was created using old-style courier typeset instead of a laser printer. In the early 1980s, besides brief summaries of Section activities and plans, the newsletter also featured summaries and analysis of recent trials and legislative action pertinent to civil practice, much like a feature in a law review. The amount of work required to produce each edition is denoted by the fact that the first part-time staff person hired by the governing Council in 1982 reported directly to the chair of the communication division.

According to Mr. Herr, in those years there was no systematic attempt to identify what readers most wanted and needed out of the newsletter. Instead, the content was determined primarily by what members of the Council or division felt like writing about. While this may be a timeless truism, it seems that in the early years the newsletter’s content, form, and publication schedule varied more than in later years.


Jeff Keyes

Sometime between 1982 and 1986 the newsletter gained the moniker Litigation Law News, perhaps coinciding with the selection of Jeff Keyes as CLS Council chair. Two previous outsiders, Sue Kato and William Mitchell College of Law professor Eric Janus joined the governing Council in the fall of 1987 during Jeff Keyes’s second term as Council chair. Ms. Kato and Mr. Janus took over production of the newsletter from the other Council members. This may indicate that the "mini-law review" style of newsletter{23}  – which required the authors to read, summarize, and analyze many cases – was a heavy burden on the authors who also took part in other Council activities.

The 1987-88 Council identified communication with Section members as a high priority and gave some thought to determining how to most effectively use the newsletter. However, a survey of the members indicated a high level of apathy and antipathy toward the newsletter. This might be read to mean that few members of the Section wanted or needed to read legal analysis of the cases covered by the newsletter and were content to get that from other sources like the ABA or MSBA journals.

For reasons not apparent from available records, the Section stopped publishing a regular newsletter sometime in the late 1980s. Instead, the Council communicated with members by periodically sending letters describing its activities. In August 1991, the Council rejected a proposal to re-start a newsletter. It was noted that most respondents to the annual survey indicated no interest in a newsletter.{24}  For five years, there appears to have been no Section newsletter. However, in August of 1996 members of the Section once again ranked a Section newsletter as a high priority.

Subsequently, the CLS began producing Civil Litigation News with support from MSBA staff, which continues at the time this study was published. Civil Litigation News differs substantially from the old "Litigation Law News" in style and content. It sports a glossy cover framed in a red border, styled the same way as the newsletters of other Sections that are also produced with MSBA staff assistance. Issues typically contain a page of short updates about Section activities, summaries of relevant pending legislation, the Section survey, notice of upcoming Section-sponsored events, and at least one succinct substantive article that reads more like a magazine article than a law review note.{25}  It also features smartly formatted forms to nominate candidates for the Advocate’s Award or to register for events like the Section annual meeting. In short, the Section seems to have improved on the earlier model to offer a publication that effectively delivers needed information to members in a clear and accessible format.

B. Institutional Record Keeping

Along with the newsletter, Council meeting minutes and annual Section reports published by the MSBA in Bench & Bar form a record of the Section’s activities. Each year the MSBA publishes short reports from the CLS and other Sections in Bench & Bar. These annual reports usually contain a synopsis of the Section’s major projects for the year and initiatives for the coming year. In 1988 and in 1989 no report for the Section appears, though other Sections’ reports are printed. Available records do not indicate why the CLS did not publish a report in those years.

Council meeting minutes from the early years are, for the most part, unavailable for review. The process of compiling this report has revealed that for purposes of reviewing the past activities, such records are critically important in a service organization like the CLS. One reason is that unlike a law practice, there are very few outside sources that generate or keep coherent records related to the Section’s activities. There are, of course, a few exceptions, for instance when a major ongoing Section project is covered in Bench & Bar or Minnesota Lawyer.

Anecdotal evidence suggests that another reason for lapses in record keeping is that CLS activity is only a sidelight to the practice of law for even the most committed and involved Council members. As a result, they recall fewer details of major Section projects than they do from cases they have handled. It is therefore important for Council minutes to reflect not only the topics discussed and members present but, if possible, a brief synopsis of the substance so that in later years the course and flow of the projects will be evident in the record.{26} 


Ty Bujold

Most importantly, without meeting minutes there would be no record for posterity of innumerable Fun Historical Facts. For example, we would not know that in October, 1996 Council member Earl Singh caught a 52-inch muskie, and that the Council offered him congratulations.{27}  We also would not know that at the 1994 Council Retreat Ty Bujold was the only one of the fifteen members present to wear his name tag, or that at the 1999 retreat "Chair Feigh led us through self-introductions and everyone remembered his or her own name." We would also remain ignorant of the fact that Minnesota contains a "7-county Metropolitan Mosquito Control District" (Aug. 1991). Important anecdotal information about individuals can also be found in carefully kept minutes such as the fact that "outgoing secretary Betsy Martin was proclaimed the worst secretary ever (by herself); because she is a judge, no member of the committee was willing to disagree with her to her face" (Sept. 1999), and that she "liked being a waitress" at the 1999 Convention (Sept. 1999). Future secretaries take note!

 


Judge Duane Peterson

C. City Mouse, Country Mouse

Communication between metro-area and "outstate" members of the Council has also concerned the Council from time to time. The second elected chair of the Council, Duane Peterson, recalls that one of the reasons he was selected to serve as chair was because "the sentiment was that putting outstate attorneys in offices would attract more outstate memberships." In 1987, the Council considered holding regional CLS meetings in Duluth, Rochester, Moorhead, and Willmar to make it easier for outstate attorneys to be actively involved. Ironically, when metro-area Council members Chuck Reite and David Lillehaug returned from a Duluth-area Bar Association meeting in May 1988 they reported that members were generally ambivalent about being unable to participate more actively. Throughout the 1990s the CLS Council has periodically discussed the subject of encouraging membership and active participation by outstate members.

Certainly, developments in communication technology have had a positive impact on the ability of outstaters to serve as Council members without the burden of long commutes. Judge Peterson, who is from Winona, recalls, "When I was chair, I drove up to the Bar Headquarters for each meeting.  We had no technology to conduct conference calls around the State."  The Council began including "outstaters" in meetings by conference call around 1991.{28}  Meeting records indicate the Governing Council began using email to communicate official business late in 1998. Use of email was greatly facilitated when the Council acquired its own listserve through the MSBA in late 2000. Technological innovations have probably substantially assisted outstate members of the Section become actively involved in Council activities.

 

Part V: Strengthening the Social Fabric of the Bar

Table of Contents

The CLS Governing Council has periodically launched initiatives or organized events with the explicit goal of providing civil litigators of all stripes the opportunity to mingle in a congenial and relaxed social atmosphere. While these events have generally not been treated as the section’s main emphasis, members of the section and Council have nonetheless identified them as worthwhile. Former members of the Council frequently cite the friendship and camaraderie they felt as active members of the section as one of the most rewarding and memorable aspects of their experience.

A. Luncheons

1993 was the first year that the CLS held regular luncheon programs with speakers on issues of interest to civil litigators. Records do not indicate who first suggested the idea. Between two and four luncheon programs have been offered between January and June every subsequent year. The luncheons not only update litigators on topics of professional interest, but also provide opportunities for members of the civil trial bar to meet in a collegial atmosphere. Recently the price has been $15 for section members and $20 for non-members. Attendance has ranged from two dozen ("Gender Fairness in the Workplace") to almost 100 ("Federal Civil Justice Reform").

A review of some of the subjects of luncheon presentations is almost akin to a chronological guide to current affairs in civil litigation. One of the first luncheon programs was "Gender Fairness in the Workplace," coinciding with the MSBA’s requirement that sections submit formal "diversity plans" in 1993. "Use of Technology in Litigation" was offered in May 1994, around the time that law firms began to come to grips with how to practice law in the information age. The Jury Project, the Judicial Evaluation project, Judicial Elections, and other section initiatives have provided subject matter (and informed speakers) on several occasions. Other topics like "How to settle your toughest case," "Balancing Professional and Personal Life," and "Lawyer Misconduct During Closing Arguments" have addressed more timeless concerns.

In summary, section members have supported well-planned luncheon programs with interesting speakers by their attendance. The luncheon program is also one of the CLS’s main contributions to the Minnesota catering industry. While they may not eradicate the differences between plaintiff and defense lawyers, they at least further the CLS mission by getting some of them talking about contemporary legal issues of mutual interest in the same room.

B. Annual Meetings & Retreats

Planning the annual Council retreat in September and the annual section meeting in the spring have been on the Council agenda every year. The annual meeting, traditionally held at the Nicollet Island Inn, features a dinner speaker of interest and opportunities for socializing. About 100 section members usually attend, though the Council periodically makes efforts to boost the number. As a forum for encouraging fraternization between plaintiff and defense attorneys, the annual meetings may be more effective than luncheons because of the availability of cocktails. Annual meetings usually feature a high profile speaker, while luncheon meetings are less likely to do so.

The CLS annual meeting is usually not held in conjunction with the MSBA annual convention. This allows the Section to choose its own time and setting, something that some Council members find valuable. This tradition is representative of the CLS’s self-adopted role of "doing its own thing" relative to the rest of MSBA. However, the annual meeting has been held in coordination with the MSBA convention several times, possibly reducing the efforts required to organize the meeting. No data is available indicating whether one or the other encourages higher attendance by Section members.


Tim Eiden

The Council retreat is held at a different location every year. Recent locations have included Wabasha, Red Wing, Fergus Falls, St. Cloud, Mankato, and Duluth. At Council retreats the business meeting is often followed by unstructured time in which section members have done memorable things such as serve coffee to post-Homecoming high school revelers at Perkins in the middle of the night.{29}  Others have won the lottery and bought a round for everybody in a bar.{30}  Still others have returned to their rooms and been surprised to find cat excrement in unexpected places, while others have had returned to their rooms and been surprised to not find a bathroom in the expected place.{31}  The Duluth retreat in 2001 set a record for creativity. The Council spent the night in the Glensheen Mansion and entertained as their guests the prosecutor and defense counsel who handled well-known Congdon murder case.

Observes longtime MSBA staff member Mary Grau, "These councils always work very well together, which is very interesting because they are plaintiff and defense counsel and are supposed to disagree. I think the retreats contribute to that because people get to know each other and that contributes to how they work together."

C. Civility Committee

One formal project of the CLS governing Council directly related to the social relationships among members was the Civility in Litigation Subcommittee, established in early 1990. The subcommittee responded to the perception that civil trial practice had become more acrimonious than it used to be. Records do not state whether the subcommittee acted alone or in cooperation with a larger MSBA effort.

The subcommittee commissioned an extensive survey of section members to get a sense of how much of a problem incivility had become, and what aspects of civil practice were most affected by it. The responses indicated that most older practitioners were concerned about increased incivility during litigation while younger attorneys were less concerned. Available records do not indicate whether the subcommittee released a report or what the contents of the report might have been. The mere fact that the Civility Subcommittee was formed at all establishes an interesting precedent for the scope of the section’s mandate to "enhance and refine the advocacy system."

Part VI: Informing and Helping the Public.

Table of Contents

A. Pro Bono Work

Pro bono activities have never been a top priority for the CLS. However, pro bono projects have never completely disappeared, either. The CLS has championed a string of pro bono activities and initiatives over the years. The Council’s level of enthusiasm for pro bono work waxes and wanes depending on the specifics of the project and Council members’ interests. The following pages recount the major pro bono activities the Section has undertaken and the projects the Council has funded.


Jan Symchych

The Pro Bono Committee was formed between 1984 and 1987 with the support of future Section chair Jan Symchych. Under co-chairs David Lillehaug and Susan Nelson, the Pro Bono Committee ambitiously investigated becoming a clearinghouse for pro bono litigation in Minnesota, publishing its own newsletter, taking on its own pro bono cases, and donating money to existing pro bono organizations. Of particular interest were suggestions for helping newly arrived Hmong and Vietnamese immigrants, though no direct action was taken.

The Council did not attempt to take on the role of pro bono clearinghouse, probably concluding that it lacked the resources or commitment to be successful at that kind of endeavor. The Minnesota Justice Foundation (MJF) and other organizations devoted solely to pro bono work adequately meet that need today. The pro bono newsletter idea never came up for a vote. Instead, the Council took more modest steps, voting in 1987 to fund a summer clerkship to aid disadvantaged citizens. The Pro Bono Committee then made a serious effort to get members involved in a pro bono asylum law project in 1988 that involved forty CLS attorneys.

Pro Bono support reached its zenith before and during Jan Symchych’s tenure as Council chair in the early 1990s. Led by George Soule and Jerry Snider, between 1990 and 1993 the committee supported the Volunteer Family Law Program run by the Legal Aid Society of Minneapolis. An April 1991 letter to Section members stated the CLS had signed up over 50 CLS attorneys. CLS attorneys handled at least 111 dissolution and child custody cases during that period. According to Mr. Soule, the program still exists though the Council may not encourage it as aggressively as before.

At the Dec. 1991 meeting, the Christmas spirit (and Jan Symchych) moved the council to undertake the distribution to all Section members a directory of pro bono opportunities, work with Minnesota CLE to promote various pro bono opportunities at CLE seminars, and continue support for the Family Law Project. Committee co-chairs Ruth Marcott and Tim Eiden made plans to coordinate the CLS efforts with MSBA Director of Volunteer Services Nancy Kleeman. In April 1992 the Council donated $6000 to pro bono projects.{32}  In 1993 the pro bono committee discussed distributing to law firms a "model pro bono policy," write articles to Bench & Bar about pro bono efforts, and advertise pro bono opportunities at CLE seminars.

Since 1994, the role of the CLS in pro bono endeavors has declined as the Committee’s original champions left the Council and other initiatives have captivated the Council’s attention. In 1994 Lynn Starkovich, Steve Rau, and Ruth Harvey explored the possibility of a "Children’s Project" such as encouraging attorneys to become guardians ad litem. After months of research and discussion, the idea was quashed in January 1995 because the need seemed to have evaporated and because the required training and time commitment made it unfeasible for many litigators. The Council also considered pro bono ADR initiatives in 1994-95 and adopted a committee report supporting the work of the Twin Cities Community of Dispute Resolution Centers.

The Council discussed ideas related to the "Children’s Project" until the spring of 1996 when it cosponsored a seminar on advocacy for children at the Children’s Law Center. The same year Ruth Harvey and Earl Singh unsuccessfully proposed collaborating with the Children’s Law Center to train pro bono advocates for foster children. The council signaled a change from the Symchych days when, in response to the pro bono committee’s request for funds to support the Children’s Project, a contingent on the Council objected because the CLS "is not primarily a funding body" but rather should "further issues germane to litigation and to the membership."


Brett Olander

More recently (perhaps in 1998) the pro bono subcommittee including Brett Olander, Terry Wade, and Tim Eiden persuaded the Council to adopt a "leadership by example" stance. Each member of the Council agreed to take on at least one pro bono case that year, and the newsletter publicized that fact to encourage others in the section to do so as well. Mr. Olander considered that a good step in the right direction since actions speak louder than words. The council has continued to make an annual donation of $500 to the Children’s Law Center, but records do not indicate that the Council has taken any further action to assist pro bono causes.

B. Mock Trial Support

The CLS Council has supported Mock Trial competitions in Minnesota high schools since the mid- to late 1980s. The MSBA sponsors the competitions as an extra-curricular activity. Students compete in teams first at the state level, and the state champion continues to the national competition that his held in various locations around the country. The state championship is held at the Minnesota Supreme Court. 

In a letter to members in 1989, the Council detailed the nature of that support. Tim Eiden coordinated the Section’s efforts in the form of monetary assistance ($3500) and helping to formulate the case problem and provide coaches and judges for the competition. The 1994 member survey indicated that priorities had changed and support for the annual high school mock trial tournament was last in the list of priorities. The CLS still provides moderate financial support to Minnesota’s mock trial program.

C. State Fair Trial by Jury

From 1989 to 1991, the CLS coordinated a Trial By Jury extravaganza at the Minnesota State Fair. The Council felt that the Trial By Jury was a fun and painless way to present members of the general public with a positive image of civil litigators and educate them about the civil litigation system. A 1989 letter to members gives some details about how the project was presented. CLS members volunteered to play the roles of counsel, judge, parties, and witnesses. Some of the characters were funny and colorful. Audience volunteers served as the jury and rendered a verdict. The case was structured so that each night the jury might reach a different conclusion.


Mike Nilan

 

In 1989 Mike Nilan headed the project, and over 70 attorneys were involved in the production. The ABA Section of Civil Litigation, MTLA, and MDLA gave financial assistance. The State Fair Trial By Jury was a success, drawing 100-200 fairgoers each evening. That year, two of the performances were videotaped and may have been aired on WCCO cable television. Despite interest on the CLS Council to repeat the program again in 1992, the State Fair said "thank you but no thank you." Three years was at that time the longest run of any State Bar program at the State Fair.

Part VII: Advocating for the Advocates

Table of Contents

A. Legislative & Lobbying Efforts

From the outset the main vision and purpose for the CLS in the eyes of its founders was to exert non-partisan influence on legislative and bar association policy. As Duane Peterson recalls, "We thought that the bar association should be neutral between defense and plaintiff members.  The idea was to try to find issues common to all litigators and try to promote such [issues] by court rules or legislation." This focus may be due in part to the fact that Marc Whitehead, the first elected Council chair, was very interested in lobbying. However, lobbying the legislative branch has not been the most common or effective method for the CLS to achieve its goals.

The initial structure of the CLS Council included a Legislative Division devoted to tracking bills of interest to litigators and deciding whether the CLS should try to influence such legislation. Perhaps in part due to the CLS’s interest in lobbying, in 1980 the MSBA prohibited sections from contradicting the MSBA’s legislative policy, surprising the MSBA with public announcements of positions on pending legislation, or adopting positions on legislation outside the scope of the Section’s declared sphere of interest. The CLS Council responded with a series of compromises with the MSBA leadership that was privately known as the "thousand flowers" policy intended to give the Section the flexibility to achieve its goal of impacting the public and legislative dialogue in a meaningful and timely way despite the restrictions.33 

In the long run, the MSBA hardly need have worried about the CLS’s legislative activism. Since those initial years, a cautionary attitude about the Section’s proper role has tempered enthusiasm for direct involvement in legislative affairs. In 1982, the legislative division adopted a policy of discouraging laws that dictate how courts conduct business and how courts interact with attorneys. In 1984, it further limited its attention to proposed laws that affected plaintiffs and defendants equally, and affected how lawyers work to resolve clients’ disputes.

There are few records of the CLS actually getting involved in legislative affairs. In 1981, Tad Jude of the Minnesota House Judiciary Committee spoke at the mid-year meeting about certain pertinent bills before the House. In 1982, Stan DeLaHunt organized the Legislative Division of the CLS into four panels of three lawyers reviewing bills dealing with the 12-person jury and the Superfund bill, but there is no record of the CLS taking action on those bills. That year the division also recommended supporting an increase in the budget for judges’ salaries, though the MSBA was itself already lobbying the Legislature to the same effect. Aside from that, the CLS did little more than include descriptions and analysis of pending legislation in the newsletter.


Mark Gehan

Throughout the 1980s members of the Governing Council continued to monitor and report on legislative items of interest. Stan DeLaHunt, Mark Gehan, and Peter Riley each served a tour of duty as chair of the Legislative Division or Committee. A movement to once again take a more proactive stance came in 1991 under the leadership of Mark Gehan and Martha Simonett. Council minutes indicate that they planned to meet with Bill Luther to pursue "establish[ing] ongoing relationships with 4-5 of the influential legislators." After identifying legislators "who might be friendly to the Section," Mr. Gehan hoped to "make contact with those people to introduce them to the Section." Council member Ruth Marcott investigated whether the Section or Council members would have to register as lobbyists. No records indicate what she learned or whether this initiative was launched.

The Council has continued to follow legislative developments with varying degrees of diligence and interest. Some legislative agenda items, like tort reform, taxes on legal services, and medical malpractice law changes, have raised the interest level among civil litigators until the measure is defeated or passed. The legislative committee has been relatively quiet in recent years.

B. Public Relations Campaigns

In the early years of the Section, the negative public image of civil litigators was one of the problems the Council wanted to address. Unfortunately no records survive from the Section’s first decade that recount any specific instances or efforts to achieve that goal. Since the mid-1980s the Section has supported the high school Mock Trial program partially to public goodwill. From 1989-91, the Section presented a Trial By Jury exhibition at the Minnesota State Fair.34  While this was done with an eye towards the public image of attorneys, it had even more to do with educating the public about the jury system and having fun. Over the years the Section also sponsored a number of CLE Seminars on subjects tangentially related to improving the public image of lawyers.

The only organized public relations campaign the CLS Council has been involved with was launched by the MSBA in the fall of 1994. The MSBA asked the Council to help identify lawyers who had performed outstanding service to their clients or community and could be held out to the public as a positive role model. Ty Bujold pointed out at the November 1994 meeting that any lawyer so identified would essentially received free publicity, paid for by the MSBA. He suggested it might be better to collect testimonials from clients about their satisfaction with the civil justice system. Records do not indicate if Mr. Bujold’s suggestion was adopted or what happened to the public relations campaign.

Despite being the only institution that represents the broad interests of all civil litigators, the CLS has done little to directly address the profession’s public image. This may be due partly to the Council concluding that it would not be cost effective to direct resources toward projects of that nature. However, given that the Council has seldom discussed public relations, it may be that other initiatives simply have a higher priority.

C. Judicial Selection

The election and appointment of Minnesota judges has always held some interest for the Section. In November 1982 Council chair Duane Peterson wrote to Governor-elect Rudy Perpich explaining that the CLS Council had unanimously voted to urge the new administration to continue Governor Quie’s policy of consulting the Council before making judicial appointments. There is no record of how Governor Perpich responded. Apparently judicial selection apparently did not warrant further action from the CLS and was not discussed in Council meetings for many years.

Contested judicial elections in November 1996 brought to the bar’s attention the question of how Minnesota judges are selected once again. Many CLS Council members were angered by the relative ease with which less qualified candidates challenged (and sometimes beat) candidates with more experience and skill. The Council quickly formed a Judicial Election Committee that evolved into a Judicial Selection Task Force with members from all parts of the bar, chaired by George Soule. Other Council members on the Task Force included Terry Moore and Brett Olander.

The Task Force first commissioned a survey of 500 voters that indicated that voters were clueless about judicial candidates. For the next few years, the Task Force considered ways that the MSBA or the CLS might use their stature as pillars of sound judgment to influence the outcome of judicial elections. The members wanted to find some way they could lobby or make contributions to influence the outcome of contested judicial elections, however, the statutes governing non-profit corporations like the MSBA prohibit outright endorsement of candidates. Plans were simultaneously made to use available resources to inform voters about the candidates and the issues involved.

While the Judicial Selection Task Force did not continue after November 1998, the CLS’s influence in the arena did. Most notably, Mr. Soule was appointed to head the governor’s Judicial Selection Commission. The Commission now carries out the job that Mr. Peterson was interested nearly two decades before – screening gubernatorial appointments to the bench.

 


 

MSBA Civil Litigation Section History
Table of Contents (Use your "back" button to return)

Part I: Historical Overview

A. In the beginning
B. Structure
C. The High-Flying 80’s
D. The next Generation

Part II: Sustaining and Improving the Judiciary

A. The Intermediate Court of Appeals
B. Special terms procedure and other misc. court rules
C. Complex Litigation Task Force
D. Judicial Development
E. Discovery Task Force
F. Judicial Education efforts
G. Jury Task force / JIGs

Part III – Raising the Bar

A. The Minnesota Advocacy Institute
B. Eavesdropping on the Jury
C. Civil Litigation Institute
D. Professional Certification Programs
E. Miscellaneous

Part IV: Communication

A. The Section Newsletter
B. Institutional Record Keeping
C. City Mouse, Country Mouse

Part V: Strengthening the Social Fabric of the Bar

A. Luncheons
B. Annual Meetings & Retreats
C. Civility Committee

Part VI: Informing and Helping the Public.

A. Pro Bono Work
B. Mock Trial Support
C. State Fair Trial by Jury

Part VII: Advocating for the Advocates

A. Legislative & Lobbying Efforts
B. Public Relations Campaigns
C. Judicial Selection

Appendix A: CLS Governing Council Roster, 1979-2002

Appendix B: Synopsis of Major CLS Projects


MSBA Civil Litigation Section History
Endnotes

1. Throughout this chapter, when individuals who served as chair of the Civil Litigation Section are introduced, their names are followed by a parenthetical reference to the year(s) of service in that role. (Use your "back" button to return)

2. A 1982 survey commissioned by the MSBA indicated that inflation and quality of life were the top issues of concern to members of the bar. The CLS never devoted any resources toward addressing them.

3. Joan Morrow reported in June of 1982 that the committee was planning to study the more judicially evolved appellate court system in Wisconsin as a possible model for Minnesota.

4. Legal Ethics Fun Fact: The ABA created the Kutak Commission in 1977 to revise the Model Code of Professional Responsibility. The ABA House of Delegates adopted the final draft of its report as the new Model Rules for Professional Conduct in 1982. Commission chairman Robert Kutak (deceased) was from Kansas City, Missouri.

5. The article was written by Mr. Whitehead himself, and in the article he congratulated Ms. Mayeron on her work as co-chair of the seminar. At the time Mr. Whitehead and Ms. Mayeron both worked for the same firm. No mention was made of who the other Co-chair might be.

6. For some reason, the annual meeting that year was held in Winnipeg, Manitoba (yes, in Canada). Apparently that was considered a more convenient location than Minneapolis for certain "outstate" members of the bar.

7. Records from 1984-86 are incomplete; it is not known exactly when the task force was formed or whether its membership was drawn from within CLS or the larger MSBA constituency, or what the task force achieved.

8. The list includes Kathleen Peterson, Eric Magnuson, David Herr, Charlie Hvass, Jr., Carolyn Chalmers, George Soule (C 94), Martha Simonett, and Jan Symchych.

9. You might supply your own tongue-in-cheek reference to "the slings and arrows of outrageous fortune" here.

10. The efforts of the CLS to implement a mandatory, uniform, statewide judicial development program are documented in the March 1998 issue of Bench & Bar, July 2000 issue of Minnesota Lawyer, and the April 2001 issue of Minnesota Lawyer.

12. This is the only such Special Meeting ever called in the history of the Section.

13. The names will be changed to protect the guilty. "Randel Trobet," for example.

14. Fun Minnesota Legal Trivia: At the time Mr. Whitehead and Ms. Mayeron both worked for the same large firm that no longer exists. What firm was it? Hint: The CLS Council roster provides a clue.

15. While fundraising certainly helped ensure the MAI's future, what really established the MAI as a permanent presence was the development of its very own trendy logo featuring, you guessed it, scales.

16. According to former MAI instructor Maury Landsman, lead instructors were also given CLE credit for the hours spent in prep time but students were not.

17. Those individuals included but were not limited to Phillip Cole, John Eisberg, Susan Hall, David Herr, Heidi Hoard, Charles Hvass, Jr., Sally Johnson, Jeff Keyes, Janie Mayeron, Joan Morrow, James Morrow, Michael Nilan, Mark Peterson, Wayne Popham, Peter Riley, Martha Simonett, Peter Sipkins, Jerry Snider, George Soule, Michael Stern, Jan Symchych, and Terry Wade.

18. The June 1989 newsletter credited faculty member and former CLS council member Heidi Hoard with the following inspirational quote about MAI: "The basic format of the course is excellent. I have talked to students ... who have completed the course and despite its grueling nature ... they felt it was an excellent experience." It must have been true, since the March 1989 newsletter quoted future CLE Council member Dan Boivin as saying, "Excellent experience ... I recommend it to all litigators, even seasoned ones, since it may be the only opportunity to get constructive criticism on one's trial techniques from one's peers."

19. The CLI was also advertised as the Upper Midwest Civil Litigation Institute in an apparent attempt to market the event to attorneys from neighboring states.

20. Reported at the January 1995 Governing Council meeting, which was the longest Council meeting on record. It was convened at 7:30 a.m. and finished at 9:10 a.m.

21. The March 1987 proposed requirements for Civil Trial Specialist Certification were as follows: Certification lasts for six years. Applicants have to be a good-standing member of the MSBA, have 5 yrs experience of which 35% spent in "active participation" in civil trial law (Being a good judge counts automatically), 100 days of trial (incl. 50 days of jury trial) or 15 cases tried (8 jury cases), six lawyer references not in applicant's firm, list of judges before whom applicant has argued, proof of being current on CLE credits (at least 20 credits), take written exam, perform the secret handshake, and body cavity search. Any requirement except the written exam can be waived "if circumstances so warrant."

22. The June 1987 final requirements were: 5 yrs full time practice with 50% in Civil Lit during the 3 yrs immediately preceding application (and being a judge counts), primary responsibility for 7 jury trials, completion of 75 "units" (3 units for taking a trial to verdict, 2 units for trial settled before verdict, 1 unit for every three days of trial beyond 2 days, 2 more units per trial if applicant was first chair, arbitration and admin hearings get 1 unit, one half unit for "handling contest matters.") Must also be current on CLE credits and pass the written exam.

23. Featuring a daunting phalanx of legal footnotes.

24. The 1991 survey question encapsulated the debate: "Should we start a newsletter? (Keep in mind that: Communicating with members is important, but there are already many publications and it's hard to find editors and lawyers who will contribute articles and news items but we're one of the few MSBA sections that don't have a newsletter and we're the second largest Section (of 25) and we can afford it but we've tried it before and it didn't work) (italics added for emphasis).

25. Meaning there is a blessed paucity of footnotes, especially frivolous ones.

26. It is also helpful if the meeting minutes are funny and use interesting fonts for clarity. Minutes recorded by Secretary Moore (1999-2000) and Secretary Kaman (2000-01) should be considered as examples.

27. A muskie (properly Muskelunge) is a species of freshwater pike, a carnivorous fish indigenous to the rivers of the upper Midwest and related to sharks and barracuda. 52 inches is almost a record-breaker.

28. In November 1991 members of the Council received a reminder that "the December meeting will be on December 13, 1991 at Popham, Haik so that Outstate members of the Council can participate by speaker phone." Subsequent meetings are often held there until the firm implodes.

29. Tim Eiden (C 97)

30. Helen Meyer (C 95)

31. Anonymous (but it happened at the Anderson House).

32. $2000 to MJF to fund a summer clerkship, $2000 to the Legal Aid Society for a computer to support ongoing projects, and $2000 to Southern Minnesota Regional Legal Services to assist their volunteer attorney program.