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PRACTICE POINTERS SHAMELESSLY STOLEN FROM WIL FLUEGEL

Copyright 2005 MAJ and T. Joseph Kane Crumley

In this, the first issue written, edited and published under the reign of our new president Wil Fluegel, your editor felt it only appropriate to pay tribute to his legal knowledge. And what better way to pay tribute than to steal some of his great thoughts?[1]

Since the inception of the listserv, your editor, along with many members, has kept a small electronic library of particularly helpful and high quality postings. These gleaned tidbits often prove quite valuable in practice as well as when writing this column.

A cursory review of your editor’s library reveals that an overwhelming plurality of the saved postings tidbits originate with the man known as “MAJ’s Lawyer,” Wil Fluegel. Your editor alone has collected at least 106 such Fluegel treasures. There are probably more where the important index words “by Fluegel” were unintentionally omitted.

President Fluegel’s postings, while frequent, also tend to be the most substantive. Some list serve members typically type a one or two line response to inquiries, such as “I think the Court of Appeals took care of that issue 2-3 years ago… was the case something like Ortiz?” While certainly helpful, these postings pale in comparison to the miniature legal briefs posted by Professor Fluegel.

When asked to review this article, President Fluegel requested your editor remove the ‘gushing’. He noted that “no one person is more valuable than another and we need to encourage everyone to pitch in with their ideas.” He is indeed correct that the rest of us need to pitch in and share our knowledge, as he has shared so generously.

So, here are some of Wil’s Greatest Hits:

Loss of Consortium

A member asked about the scope of the damages for a spouse of an injured person, and Wil replied:

[I]f a tort injury deprives one spouse from being able to provide services that they used to - - or would have expected to be able to - - provide, it is compensable as a loss of consortium.

Loss of consortium is any injury to the marital relationship that impairs "the mutual and reciprocal privileges and duties of the marriage relationship," Huffer v. Kozitza, 375 N.W.2d 480, 482 (Minn. 1985), and while a "predominant element" is "the loss of a sexual relationship," Thill v. Modern Erecting Co., 284 Minn. 508, 510-11, 170 N.W.2d 865, 868 (1969), it includes all "rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other." Id. at 510, 170 N.W.22d at 867-68. Given the diversity of these elements courts have been "reluctant in past cases to set aside even the most generous awards for loss of consortium." Busch v. Busch Const., Inc., 262 N.W.2d 377, 399 (Minn. 1977).

Serving Dead Defendants

Another member asked about the procedures to follow when the defendant has predeceased the lawsuit. Wil’s lengthy and detailed response qualifies as a primer on the subject:

1. Identify the Personal Representative (PR) if one exists. A probate may be started in the county in which the decedent lived at the time of his death, or in a county where they owned real property. A credit report may yield locations of property, and the death certificate will indicate his residence at death if you don't know it. Check with the probate court in those counties to see if a probate has been opened for the decedent' s estate. If a probate was begun, the identity of the personal representative can be obtained.

2.If a PR exists. If a PR has been appointed, serve the PR in his/her capacity. Minn Stat. § 573.01 permits a plaintiff to maintain an action against a defendant after he dies "as against his personal representatives." Under § 524.3-104 "no proceeding to enforce a claim against the estate of a decedent . . . may be . . . commenced before the appointment of a personal representative."

3.Time frame. There is a conflict in the statutes on timeliness of service. Section 541.05 gives 6 years from the date of accident to sue a PI claim, but section 524.4-108 limits the time to 3 years from the date of the decedent' s death to start any action against an estate, so the shorter of the two limits likely applies.

4.If no PR exists. If no PR has been appointed, a Special Administrator can be appointed with the limited power to accept service of process. Section 524.3-108 allows "formal appointment of a special administrator" if no PR has been appointed, as a Special Administrator is defined as a PR with limited authority to accept service of process under section 524.1-201(36). Most practitioners have a form accepted by the courts for this purpose. Traditionally, Plaintiff's attorneys appoint Special Administrators using this form (usually a secretary or friendly attorney to serve as a "straw man" to accept service and mail the papers into the decedent' s insurer).

Wil’s excellent posting then continues to describe some potential pitfalls, which are best left for private discussion.

Wrongful Death Primer

One young lawyer asked for some advice on how to handle his first wrongful death claim. Again, Wil responded with a valuable primer:

1. Start by appointing a trustee. Begin by appointing a trustee to start a wrongful death claim. Under Minn. Stat. § 573.02, the only person who can sue for the death of another is a trustee appointed by the court. Often, the surviving spouse or other relative is appointed and the court will let them serve without bond. You'll need the trustee to sign a retainer to hire you and to sign authorizations to secure the police investigation, medical records and coroner's report.

2. Visit with the troopers and decide about hiring an accident reconstructionist. While the state patrol usually will do an accident reconstruction in any traffic-related death in Minnesota, they may take months to complete it, and it may not always be helpful. Depending on the facts, you may want to consider retaining a private accident reconstructionist, particularly one familiar with the state patrol’s approach to problem solving. The MAJ website has an "expert witness referral bank" you can access for suggestions at:www.mntla.com/mntlamembers2000/expert_witness_referral_bank.htm

Many reconstructionists are former state patrol officers or familiar with police procedures. A reconstructionist can be expensive and may or may not be necessary depending on the state patrol’s determination of how the accident happened.

3. You may need a pathologist to help establish cause of death. Often the coroner will do an autopsy to establish cause of death in a serious traffic accident. Since your decedent "ended underneath the semi truck," if she would have survived but for being struck by it, you may have a claim against the truck as well as against the driver of her vehicle. That will depend on whether the semi had any chance of avoiding her, as its driver would have the benefit of the "sudden emergency rule" to reduce his/her duty of care. You can check that out in CIVJIG 26.35, in case you're not that familiar with it. Some coroners will serve as expert consultants on cause of death.

4. Put the car's owner on notice of a liability claim. Under Minn. Stat. § 170.54, the owner of a car is the one who has the first exposure to pay compensation for an injury, not the driver. There is a rule called the "sub-permittee" rule that says that when an owner gives permission to B to drive and B gives permission to C to drive, that the owner is responsible for C's driving. Western Nat’l Mut. Ins. Co. v. Auto-Owners Ins. Co., 300 Minn. 401, 220 N.W.2d 362 (1974). This can even be true when an owner expressly gives limits on driving that the user exceeds, see Jones v. Fleischhacker, 325 N.W.2d 633 (Minn. 1982) (authority given to move two cars 60 feet, and son took one on joy-ride ending in injury), or when the owner denies the user permission to allow any one else to drive and the user violates this directive and gives it to a sub-permitee. See Lange v. Potter, 270 Minn. 173, 132 N.W.2d 734 (1965) (daughter told not to allow her friends to drive car and accident resulted when she disobeyed).

5. Consider an MAJ case evaluation. For a relatively modest cost you can get further input from three experienced MAJ members once you get your information together. You can contact the administrator Sandy Benson at sbenson@mntla.com Your colleagues may be able to suggest other approaches or special damages witnesses, such as economists or family counselors, that may be appropriate.

Wrongful Death/Dramshop Pleadings

A similar question relating to a dram shop death case lead to this Fluegel posting:

Wrongful death dram-shop claims are treated differently from common law wrongful death claims, such that for the dram shop component of the case, a trustee is not used, and indeed the case is subject to dismissal if styled as a trustee versus a dram shop. See Beck v. Groe, 245 Minn. 28, 33, 70 N.W.2d 886, 892 (1955)(proper party plaintiff in a dram shop action is the individual injured party who must sue in their own name, rather than through a trustee).

There are potentially inconsistent decisions in the Supreme Court as to what happens when you use the term "trustee" improperly. In Ortiz v. Gavenda, 590 N.W.2d 119 (Minn. 1999), the court held in a common law claim that the failure to appoint a trustee before expiration of the statute of limitations rendered a common law wrongful death case a nullity, whereas in the context of a dram shop claim in which the plaintiff improperly sued the dram shop claim by a trustee, rather than individually in Haugland v. Mapleview Lounge & Bottleshop, Inc., 666 N.W.2d 689 (Minn. 2003), they did allow the erroneous caption to relate back based on a "notice pleading" rule. If the two decisions are conformable it may be because the claimants in the latter case were children who would have had to be represented by a "conservator" anyway.

The safest course of action for a dram shop wrongful death claim is to sue in the name of the individual claimants whom you represent.

If the case has both a dram shop and a non-dram common law component (e.g., negligent driver) then the caption must list both a trustee and the individual dram shop claimants and the complaint should state two counts. For example, if AB was killed by a drunk driver who got illegally intoxicated at a bar, and AB left as heirs CD, EF and GH, and GH was appointed the trustee in the auto claim the caption would be:

CD, EF, and GH, individually and as trustee for the next of kin of AB, vs. Drunk and Bar.

A recent statute-of-limitations case is Miernicki v. Duluth Curling Club, 2005 WL 1545413, - - N.W.2d - - (Minn. App., July 5, 2005). There the court ruled that those relatives who had not timely begun a dram shop claim could not retro-actively “ratify” the suit brought by another victim, once the statute of limitations had expired. In that case one relative of a dram shop victim retained a lawyer just two days before the two-year statute of limitations expired. In that suit, the lawyer also named several other relatives as claimants even though they had never met with him (so as to attempt to preserve their rights if they wanted to sue). After the suit was begun - - but after the statute expired - - the other relatives “ratified” the suit with the hopes it would “relate back” to the timely suit started by the original plaintiff. Despite Haugland, the Court of Appeals in Miernicki refused to let the other relatives belatedly go back and be added as individual claimants even though the lawyer had listed them as putative claimants.

The way to avoid risk is to sue individually for those "heirs" whom you represent for the dram claim and through a trustee for any common law claim. Good luck.

Post Trial Motions

Wil’s reputation as an appellate attorney is unmatched. Many were thrilled to see his guidance on post trial motions:

The choice of post trial motions primarily affects two things: your time table and the standard of review on appeal.

A. Time table issue. If you make post-trial motions it extends or tolls the time for appeal until 60 days after the judge's post-trial ruling. If you don’t then what you would be appealing from would be the entry of judgment at the trial court - - giving you 60 days from that date to appeal.

B. Standard of review. The more important consideration is the standard of review. If you don't make post-trial motions, the Court of Appeals is limited to reviewing the entry of judgment. Essentially then a substantial evidence test applies, meaning if there was any evidence from which any jury could have conceivably found as this one did, the appellate court must affirm the award even if the members of the appellate panel themselves would have reached a different conclusion. You can't effectively challenge any errors you contend occurred during the trial that may have induced the undesired result.

Procedural rules require you to move for a new trial on the specific grounds you contend induced the undesired result - - giving the trial court the opportunity to "fix" things by ordering a new trial. Bear in mind that to do this you must serve and file a notice of motion for new trial within 30 days of the service on you of the verdict by your adversary and the hearing must be set within 60 days of that original date. The time limits are jurisdictional, and must be followed (though the judge has discretion to make an advance finding his/her calendar is too busy to hear the case in 60 days).

C. New Trial grounds. When making new trial motions you must generally specify the error you contended exists. Rule 59.01 specifies the seven exclusive grounds for granting a new trial.

1. Irregularity in the Proceedings. Rule 59.01(a) provides that irregularity in the proceedings may justify the grant of a new trial. This ground includes misconduct by the trial judge, denying to a party the right to know the content of the court's intended instructions to the jury in advance of final argument and to argue the issue in summation, as well as any error in giving any new instructions to the jury. Finally it includes any display by the judge of partiality or hostility to a party

2.Misconduct by the Jury or a Prevailing Party. Rule 59.01(b) provides for the grant of new trial for acts of misconduct by the jury or by prevailing counsel. Communications by a juror with a party, witness, or attorney may be misconduct that justifies a new trial, as will a juror's receipt of information outside the court process including a view of the scene of an incident, or juror test to determine the accuracy of testimony by testing an exhibit. Other irregularities justifying new trial include verdicts that are the result of compromise between liability and damages, those which suggest a quotient verdict, or those for which deliberations were too short to have arrived at a rational conclusion.

3. Accident or Surprise. Rule 59.01(c) provides for a right to new trial upon a showing that an unforeseen event developed during the trial and (1) the surprise was prejudicial, (2) the moving party's exercised ordinary prudence through the use of proper discovery devices that were calculated to avoid the surprise, and (3) the party surprised then has the option of a continuance to prepare for the new information at trial, a short recess to take the deposition of any surprise witness or to prepare a defense to the new information, or a restructuring of the order of proof to permit preparation against newly disclosed future evidence, or rebuttal testimony to address it.

4. Newly Discovered Evidence. Rule 59.01(d) provides for new trial when "newly discovered evidence" arises following the trial that would have had the potential to change its outcome. The evidence must be of a type that is: (1) admissible at trial, (2) more than merely cumulative, contradictory, or impeaching in nature, (3) material to the disposition of the case, and (4) of a character that would probably produce different results. Also, it must be shown that reasonable diligence was used to attempt to discover the evidence prior to and during the time of trial.

5. Insufficient Damages. Rule 59.01(e) provides that a new trial may be granted when damages are too small as the result of the jury's passion and prejudice. An extreme in the damages award without evidence that it came about by the exercise of passion and prejudice is not sufficient in itself to justify a grant of new trial. A trial court has the "broadest possible" discretion in deciding if passion and prejudice affected the jury's decision.

6. Errors of Law. The most common basis for new trial motions are under Rule 59.01(f) provides for a new trial if the verdict was affected by errors of law occurring during the trial. The errors most commonly alleged in motions for new trial are either errors in admitting or excluding evidence or erroneous jury instructions. The rule expressly requires that the errors be "objected to at the time or, if no objection need have been made under Rules 46 and 51, plainly assigned in the notice of motion." Errors include (1) Errors in the Form of Verdict, (2) Errors in Admission and Exclusion of Evidence, and (3) Errors in Use of Improper Instructions.

7. A Verdict Contrary to the Evidence or the Law. Rule 59.01(g) provides that a verdict may be overturned if it is contrary to the evidence or to the law, but in practice, a verdict is not overturned unless it is "clearly and palpably against the evidence." The test is also stated in terms of whether the preponderance of the evidence is so greatly against the verdict as to suggest clearly jury mistake, improper motive, bias, or caprice. Rule 59.01(g) empowers the trial court to grant a new trial on the grounds that the verdict was not justified by the evidence, and gives the court broad discretion to weigh the evidence and determine if it supports the verdict. This applies to considerations of liability as well as the internal consistency of the jury's verdict. This new trial motion is similar to moving to JNOV and often combined with it.

D. Why Standard of Review is so Important. Often the standard of review for new trial motions is whether the trial judge "abused their discretion" on a ruling so that significant deference is given to the trial court, but some matters involving legal issues are reviewed de novo and that's the standard that gives you the greatest chance to prevail on appeal. One's least likely chance of success is to take an appeal when the standard of review is "substantial evidence" or JNOV standard.

Closing Argument

Because of his reputation for appellate work, many lawyers are unaware of Wil’s formidable abilities in front of a jury. A member in trial was frustrated that the judge had allowed the jury to hear many negative things the decedent had done in his life. In response to the member’s request for help, Wil posted this:

.

This sounds like a truly challenging situation for your friend, with all the bad evidence being allowed after in limine fights. If nothing can undo those rulings, then I think that the best approach or theme is the "lost opportunity for redemption," though it requires working with some potentially very "religious" themes.

The argument would pick out some notorious "sinners" who turned their life around with the benefit of time that the decedent never got.

There are a number of historical examples:

Each of these people had credibility to their audience to convert others from their own ungracious past because of the prior experiences they had lived through. If the jurors are familiar with the series of films called "Scared Straight" where criminals confront "troubled youth" and inveigh against their past misdeeds to "set them straight," they may recognize that even "bad people" can "do good" if given the chance. The decedent was denied the chance to change his ways.

Our President Wil Fluegel is clearly MAJ’s Most Valuable Asset.









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