Practice Tips

March 2021 - ABA Formal Opinion 495 Clarifies the Unauthorized Practice of Law under Model Rule of Professional Conduct 5.5
         Summary: The ABA recently published Formal Opinion 495, which clarifies Model Rule 5.5 pertaining to the unauthorized practice of law and allows lawyers to work remotely in jurisdictions in which they are not licensed so long as other conditions are met.

January 2021 - Avoid Rejected Court Filings or Confidential Information Becoming Public By Understanding and Following the New Rules Effective January 1, 2021:  
         Summary: Effective on January 1, 2021, the Minnesota Rules of Civil Procedure and the General Rules of Practice were amended governing the protection and filing of confidential information, restricted identifies and non-public information.  This tip summarizes the Rule changes and provides additional detailed materials relating to the important Rule changes.

 December 2020 -
Lessons Learned as We Navigate Through Remote/Virtual Depositions and Hearings:  
         Summary: Remote depositions and hearings will likely be a regular part of civil practice in Minnesota in 2021.  The tip provides a number of lessons learned over the past seven months to better prepare you for future remote depositions and hearings.

October 2020 - 
Remote Depositions, Satisfying the Two-Prong Standard During COVID-19:  
         Summary: Discussion of the H & T Fair Hills, Ltd., et al. v.  Alliance Pipeline L.P., Civ. No. 19-1095 (D. Minn. September 14, 2020) decision and application of the two prong standard for ordering depositions by remote means under Rule 30, including, first, demonstrating a legitimate reason to conduct the deposition remotely, such as COVID-19, and second, demonstrating prejudice or hardship if opposing a remote deposition.

April 2020
Suspension of Deadlines in Minnesota’s District and Appellate Courts
On April 15, 2020, Governor Tim Walz signed into law a bill that, among other things, addresses Minnesota’s COVID-19 policy as it relates to the extension of district court and appellate court deadlines.  This practice tip addresses the new bill.

March 2020 (b) - 
         Summary: The Minnesota Supreme Court has issued several orders concerning ongoing court operations given Governor Walz’ March 13, 2020 declaration of a peacetime emergency. Individual state court districts also have issued orders concerning their ongoing court operations.  This tip addresses those issues.

March 2020 (a)
Timing Can Mean Everything When Bringing a Motion to Compel Arbitration
In Stern 1011 First Street v. Gere, 937 N.W.2d 173 (Minn. Ct. App. 2020), the Minnesota Court of Appeals addressed the issue of waiving a right to compel arbitration.  The Court of Appeals determined that Defendants waived their right to compel arbitration because they brought a motion to dismiss the complaint on the merits before they brought the motion to compel arbitration.  The Court of Appeals also noted that expense and delay are sufficient forms of “prejudice” when considering that element of the waiver defense.

December 2019
Procedure Rules Go Into Effect January, 2020
Summary:  Effective January 1, 2020, new procedural rules go into effect under the Minnesota Rules of Civil Procedure, the Minnesota General Rules of Practice for the District Court and the Minnesota Appellate Rules of Civil Procedure.  The effective changes are to several rules to adopt new deadlines based on a "7-, 14-, 21-, and 28-day system," in place of the current 5-, 10-, and 20-day deadlines.  The specific changes can be found at at 6/20/19 Orders.

November 2019 - 
An Updated Understanding of Rule 702
Summary:  In Kedrowski v. Lycoming Engines, A17-0538 (Minn. Sept. 11, 2019), the Minnesota Supreme Court discussed the concept of “foundational reliability” in the context of an expert opinion under Rule 702 of the Minnesota Rules of Evidence in Minnesota.  The Court reiterated the point that expert opinions must have foundational reliability and that courts should consider both the “reliability of the underlying theory” and “the reliability of the evidence in a particular case.” Finding the wholesale exclusion of the plaintiff’s expert’s opinion constituted an abuse of discretion, the Court noted that there were aspects of the opinion that “presented non-speculative grounds” for proving causation.

October 2019 - "Some Damage" Rule of Accrual
Summary:  In Hansen v. U.S. Bank Nat'l Assoc., A17-1608 (Minn. Sept. 25, 2019), the Minnesota Supreme Court revisited the “some damage” rule of accrual used to evaluate when the statute of limitations begins to run in Minnesota. “Some damage” may be “created either by financial liability or the loss of a legal right.” Id. For the loss of a legal right to cause some damage to accrue, “the wrongful conduct must have allowed the claimant’s legal rights to be adversely, immediately, and irredeemably changed involuntarily.  The change to and harm resulting from the change in a legal right must be concrete, locked in, and certain to occur.” Id. If the "some damage" is created by financial loss, the exact amount of the loss need not be ascertainable for damage to have accrued. Id.

May 2019Taxation of Costs for Prevailing Party
Summary:  Although the rule has been set for some time, many attorneys still have questions or confusion over what costs may be “taxed” by a prevailing party against its opponent.  This may be because the authority on this subject is found in various places in the rules and statutes, or because some attorneys rarely handle a case that goes all the way to a final judgment.  

 January 2019 
Minnesota’s “New” Rule of Evidence
          Summary: Recently, the Minnesota Supreme Court adopted several recommendations of its Advisory Committee on the Rules of Evidence for amendments that recently took effect on January 1, 2019.  One of the adopted recommendations is a new rule: “Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver.”  The Court found that a “gap” existed between Minnesota law that “precludes testimony by an attorney only in certain instances” and the court’s “precedent” on waiver.

March 2018
“Delivery” has a “Special Meaning” when commencing an action in Minnesota State Court.

          Summary: Review of Cox v. Mid-Minnesota Mutual Insurance Co., __ N.W.2d __, A16-0712 (Minn. Jan. 24, 2018).  Plaintiff’s home was destroyed and her insurance policy denied coverage. She was required to commence an action to dispute denial within two years.  She faxed the summons and complaint to the sheriff within two years but they were not delivered to the insurance company until after two years.  The Court said faxing to the sheriff does not count as “delivery” under Minn. R. Civ. P. 3.01(c). The Tip says to be aware of this to avoid dismissal due to a technical defect in service. 

February 2018 Judges’ Courtroom Preferences: Find them Through the MSBA.

           Summary: This Tip explains that each judge has individual preferences for trial procedures and practices that litigators should know before appearing. It explains how to navigate to these preferences and shows screenshots of relevant pages.

August 2017 Requesting Attorneys’ Fees: When and How?

           Summary: Litigators need to be aware of the different procedural and substantive issues surrounding attorneys’ fees— how to pursue attorneys’ fees depends on whether a litigator is in state or federal court, and whether attorneys’ fees are being pursued through a statute or contract.  

May 2017 Depositions and Instructions Not to Answer: Either Improper or Risky, Unless Based on Privilege.

           Summary: Lawyers sometimes instruct witnesses not to answer during a deposition. This Tip informs attorneys that the only safe reason to instruct a deponent not to answer is to preserve a privilege. Everything else potentially exposes the attorney to sanctions. If an attorney does instruct a witness not to answer, the attorney should immediately move for a protective order. This issue arises more frequently in expert depositions.

February 2017 Attorneys Beware: Trying to Resolve Out-of-State Dispute may be Unauthorized Practice of Law.

           Summary: Reviews a recent Minnesota Supreme Court opinion that affirms discipline for an attorney licensed in Colorado, and not Minnesota, that exchanged emails with his family and their attorney related to a Minnesota collections case. The Supreme Court agreed this was “unauthorized practice of law” and allowed the attorney to be admonished by the Minnesota Office of Lawyers Professional Responsibility. This tip cautions lawyers exchanging emails to out-of-state individuals to be careful not to engage in authorized practice of law.

January 2017 Judgment of Dismissal with prejudice for failure to file within one-year of commencement of the action may be vacated, but there is no guarantee.

           Summary: If an action is dismissed with prejudice under Minn. R. Civ. P. 5.04 because it was not filed within a year of commencement, a judge may vacate the judgment under Minn. R. Civ. P. 60.02.  However, the movant must show the following four factors are met: 1) has a meritorious claim or defense; 2) has a reasonable excuse for failure to act; 3) has acted with due diligence after notice of entry of judgment; and 4) shows that no substantial prejudice will result to the other party. If all four factors are shown, the judge may vacate the judgment.

           Updates: This Tip is an update from the October 2015 Tip. 

December 2016 Auto Accident Double Recovery May Depend on the Order of the Actions.

           Summary: State Farm Mutual Auto. Ins. Co. v. Lennartson considered whether a personal injury claimant may seek the same damages twice if they are pursued first against a tortfeasor, and then against the claimant’s own no-fault insurer. The Court said the claimant can proceed—even if it results in double recovery—because the statute does not forbid double recovery in this situation.

March 2016 Appeals from Administrative Decisions – District Court or Court of Appeals.

           Summary: Attorneys should proceed with caution when appealing an administrative decision. Rochester City Lines, Co. v. City of Rochester, determined that an appeal of a denial for a public contract must be filed with the Minnesota Court of Appeals because the denial was quasi-judicial. The court distinguished quasi-legislative and quasi-judicial. Quasi-legislative decisions affect the rights of the public and quasi-judicial affect the rights of a few individuals.

January 2016 July 1, 2015 Amendments to Minnesota Rules of Civil Procedure.

           Summary: This Tip lists the new versions of amended rules. The following rules are included: Rule 3.01, 5.02, 5.04, 11.01, 11.02, 33, and 45.06.

March 2015Authenticating Electronic Signatures Takes More Than Just One Click.

           Summary: In 2000, most states, including Minnesota, signed the Uniform Electronic Transactions Act. This allowed legal enforcement of contracts signed with an electronic signature. However, it is unclear how these documents are authenticated if they are offered into evidence. While no Minnesota case has directly addressed the issue, a California case interpreting the same language found in the Minnesota rule held the contract inadmissible because the manager in question did not thoroughly describe the employer’s digital system, its security measures, or the accuracy of the timestamp. Minnesota attorneys should take care to establish, in as much detail as possible, the circumstances surrounding the electronic signature when attempting to introduce them into evidence.

February 2015Caution: Attorney Communications with Clients are Not Always Privileged.

           Summary: Discussion of a recent federal case out of New York, Koumoulis v. Independent Financial Marketing Group, Inc., which allowed discovery of communications between a client and its attorney because the information discussed was primarily business advice, not legal advice.

January 2015Rule 30.02(f) Deposition of an Organization: A Powerful Tool.

           Summary: Every litigator should be aware of the unique aspects of Rule 30.02(f), which allows an attorney to depose an organization. Minn. R. Civ. P. 30.02(f) is unique because it requires the individual to be ready to discuss certain topics on behalf of the organization. There are unique procedural aspects attorneys should consider before invoking Rule 30.02(f).

           Updates: The citation to Prokosch v. Catalina Lighting has a typo. The reporter citation should read: 193 F.R.D. 633.

December 2014Motion to Dismiss is Not “Responsive Pleading” for Purposes of Rule 15 Right to Amend.

           Summary: A Minnesota Court of Appeals decision reversed a district court’s decision that a plaintiff’s amendment to its complaint was untimely.  The court of appeals agreed with the appellants that it was allowed to amend its complaint under Rule 15 as a matter of course.

           Updates: The citation to Sharkey v. City of Shoreview should read: Sharkey v. City of Shoreview, 853 N.W.2d 832 (Minn. Ct. App. 2014).