We are all too familiar with the banking industry phenomenon of “Too Big to Fail”.  I wonder now whether the legal industry may be at risk of developing a corollary notion – “Too Small to Succeed”?

Two recent actions of the Minnesota Supreme Court may raise this possibility, depending upon how the bar and lower courts choose to respond to them.  In two separate and unrelated actions, the Supreme Court recently affirmed the importance of considering “proportionality” when conducting civil litigation.  By “proportionality”, I refer to the idea that efforts to win a small case (discovery, motion practice, expert use, etc.), should be scaled to assure the level of effort bears a relationship to the amount in dispute.    The Court’s actions raise the question, when is a case too small to warrant the litigation effort needed to bring it to a successful conclusion?

One of the Court’s recent actions was to amend the Minnesota Rules of Civil Procedure to highlight this notion of proportionality in litigation management.  In an amendment to the Rule 1, the new Rule includes a statement that “It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy . . . “.  Additionally, the court included the notion in an amendment to Rule 26.02, describing and limiting the scope of permissable discovery.  In another recent Court decision, they ruled in Green v. BMW, a case brought under Minnesota’s “Lemon Law”, that statutory attorney fee cases also require consideration of the size of the claim when awarding attorney’s fees to the successful claimant.

All is not lost for the plaintiff with the small claim.  There are things that their lawyers can do to reduce the risk that these actions by the Supreme Court will undermine the prospects for such plaintiffs to obtain justice in the future.

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Over the years I have handled many types of civil litigation.  My experience has run the gamut, from class action anti-trust and ERISA, to Labor Law, Environmental Law or Civil Rights, just to offer a few examples.  I loved the challenge and interest that came with a diverse civil practice.  But when I hung out my own shingle I decided to focus my practice on my “first love”, personal injury law.  There are a lot of reasons for that, but one frustration has been the attitude of many good lawyers I respect that personal injury law is an “easy” practice.  A recent Court of Appeals decision is a reminder that personal injury law is fraught with complexities and should serve as a reminder to even the most capable lawyers that personal injury cases are not something in which one should occasionally dabble.   Even seemingly clear cut cases often present tricky choices that pose traps for the unwary.    They are not so elementary.

The Court of Appeals, in Russell v. Haji-Ali,   recently held that settling an underinsured motorist claim prior to resolution of an underlying liability claim, will result in a “collateral source” reduction to the liability verdict in the amount of the underinsured coverage payment.  Oops. Had the liability claim been resolved first, this would not have occurred.  By settling with the underinsured motorist insurer first, the plaintiff had created an offset to liability verdict that would eventually reduce the potential amount to be collected from the liability insurer.

Now, if you are not an injury lawyer, the preceding sentences may be baffling for its unfamiliar jargon, so let me unpack it.  First, a bit of background is needed to better understand what the Court of Appeals was doing.

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A recent article in the Star Tribune reported on a lawsuit involving an interesting suit by a former employee of HealthEast’s Woodwinds Hospital.  The employee alleges that while working as a patient advocate she was instructed to destroy certain patient grievance records that could create liability problems for the hospital.  According to the news report, a hospital spokesperson didn’t just simply deny the allegation, but rather claimed it was false because the employee had only been asked to remove duplicative materials from the file.  Hmmm,  duplicative  or duplicitous, that is the question.  An outright denial might have served the hospital’s interest in avoiding liability and bad publicity much better.  Their qualified response, acknowledging some kind of request for record destruction, really makes one wonder.  My experience as a malpractice lawyer has taught me that paranoia about legal liability is often unreasonably high in the health care industry.  Such paranoia can lead to business practices that run contrary to the core ethic of the medical profession in which concern for the patient’s welfare is supposed to be the highest value.

I offer some examples from personal experience.

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I have been representing plaintiffs in personal injury matters for 30 years.  I rarely get to work alongside other plaintiff lawyers and learn how they do their practice.  I am much better acquainted with defense lawyers, than I am with plaintiff lawyers.  I assume, since I have enjoyed some success over the years, that how I do things must be about right and similar to how everyone else does those things.   I recently had an “ah-hah” moment that reminded me of the many different ways there are to approach the practice of law.  Not all of them are what we would hope for.   Since what I learned went against my grain, I thought I would share this story and my view of the matter in the hope of discouraging those tempted to take undue advantage.

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My experience with the election, and particularly Election Day, this year,  has led me to a new appreciation for Minnesota and the power of law.  I started the day getting up while civilization slept, since my biological clock has still not adjusted to the return of Standard Time.  While waiting for the coffee to brew and the delivery of the morning paper, I started watching “Way Too Early With Willie Geist”.  (The lead- in program for “Morning Joe” on MSNBC).   Willie always offers up some factoid he says will make us look smart during cocktail conversation.  On Election Day morning this conversation tidbit was that Minnesota had the highest voter turnout in the nation for the past three Presidential elections!     What a great way to start the day.

As I arrived at my polling place when it opened at 7am sharp,  I got in a long line and waited to vote.  I learned I was voter number 113 after the machine swallowed up my ballot.  Despite being there as the doors opened, there were 112 intrepid Minnesotans ahead of me in the line. 

I thought about a phone call from my daughter in Pennsylvania the day before.  She reported seeing an advertisement in Spanish, on the side of a public bus.  Translated, the message in Spanish told voters that they had to have an ID if they wanted to vote.  This was objectively false. Weeks before the courts had ruled that Pennsylvania could not require ID to vote this year.  This false ad could only have been intended to discourage the Latino vote among those who lacked ID.   A shocking and cynical dirty trick, it was made all the more offensive because the Public Transit Authority was evidently willing to run the ad on its buses. 

The day was still young when I arrived at work and my calendar reminded me I had signed up as a volunteer for a non-partisan effort called “Election Protection”.  For four hours I took a break from daily commerce and answered phone calls from all over the States of Minnesota and Missouri.  To prepare for this, I had to study the election laws of both states.  What I learned from studying and answering the phones was that the Minnesota’s high turnout is no accident.  It was the product of thoughtful and extensive election laws that are designed to minimize the obstacles to voting.  I must have answered a dozen calls from people in Missouri who wished to vote, had the ability to prove they were otherwise eligible, but were still denied the right to vote  simply because they either  didn’t register or failed to update a registration with an address change one month before the election.   No same day registration in Missouri.  This, and countless other differences in the law, made Missouri much less hospitable to allowing folks to exercise their right to vote.  I was reminded of what a difference the law can make on such a basic level.

As I awaited the election results, I was feeling mighty proud to be a Minnesotan.  But I have to admit that pride would only grow as the night wore on and I learned, among other things, that Minnesota voters solidly rejected an effort that may have pushed our state towards the election restriction model of states like Missouri.  The “Voter ID” constitutional amendment seemed to have the notion of “government by the people” upside down.  As Lincoln reminded us, government derives its just powers from the consent of the governed.  How sad it would have been to make the right of the governed to give their consent, dependent upon their ability to produce a particular “government issued” ID to vote.  Once again, the people of Minnesota seemed to get this.  How lucky we are to live in a place where the law serves our community, and our community takes its obligation for self- government so seriously.

“First, Do No Harm”. This is the first principle attributed to Hippocrates as part of the ancient oath of the medical profession. It expresses a fundamental ethic that should guide the practice of every physician. Today, medical science and technology have evolved to permit medical practitioners to stop or slow the progress of many life threatening diseases. The advance of modern medicine, and its power to heal, is unlike anything that existed when our tort law was developed. Chief among the arenas of progress in treatment and healing is treatment of cancer, a leading cause of premature, non-traumatic
death today. The Minnesota Supreme Court recently heard an appeal in the case of Dickhoff v. Green that may determine whether professional accountability will be possible for the vast number of people who need cancer treatment.

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