Do you think you are smarter than a litigator? Get ready to test your knowledge.
Did you sleep through Civil Procedure? Or do you think you are smarter than a litigator? Are you getting out-maneuvered by those young punks on the other side? Do judges laugh at your filings, while clerks snicker behind your back? Or can you recite in your sleep the intricacies of how to dismiss without prejudice?
Let’s test your knowledge. Three sets of questions follow—true or false, fill-in-the-blank, and short answer. Without even having to go to the appellate court, you can see if the judge, clerks, and the other side had it all wrong. But no cheating—you have to do this without consulting any outside sources.
Assume you have a civil case in Minnesota District Court but not in a division such as probate or family. Now, begin.
Answer true or false to each question. Score 1 point for each correct answer.
1. Your case is governed only by the Minnesota Rules of Civil Procedure.
2. A motion for summary judgment must be filed at least 10 days before the hearing date.
3. When you file a case, you toll the statute of limitations.
4. When serving a subpoena to produce documents only on a third party in lieu of a deposition, you do not have to notify the other side because the governing rule was changed in 2005.
5. Telephone hearings are permitted on motions only by permission of the court.
Thought that was easy? Okay, check out the answers.
1. False. Time to go back to school. Since January 1, 1992, Minnesota court cases have been governed by the Minnesota Rules of Civil Procedure (Civil Rules) and the Minnesota General Rules of Practice for the District Courts (General Rules). In most situations, you need to find the comparable General Rule, if there is one, and figure out the applicable times to act, motion procedures, and so forth. Both sets of rules are conveniently found in the Minnesota Rules of Court book you forgot to buy from Thomson West this year or can be found online.
The General Rules came about to replace, or supplant, the numerous local rules that were implemented in the various districts, along with other rules such as the Rules of Uniform Decorum. Don’t view the General Rules as a hindrance; without them you’d be whisked to those days of yesteryear when you could face the dreaded verbal, unwritten, and unknown-until-you-show-up local rule of court. It happened. Attempts by districts to promulgate new rules are governed by Rule 83 of the Civil Rules.
2. False, yet literally, true. You need to compare two rules—Rule 56 of the Civil Rules and Rule 115 of the General Rules. Rule 115 states that a dispositive motion must be filed at least 28 days prior to the hearing date. Rule 56 mandates a period no shorter than 10 days. Confused? Well, Rule 1.02 of the General Rules permits the judge to modify application of the General Rules “to prevent manifest injustice.” Thus, absent the court’s permission, use 28 days. If you need a shorter period, ask.
Because the question is literally true (read it closely, 28 days is more than at least 10 days), you get the point here no matter what you answered. But still, use the 28-day period.
3. False. If you got this one wrong, call your insurance carrier. You need to serve the party to commence an action in Minnesota and thus toll the statute of limitations. Mere filing is not enough. See Rule 3 of the Civil Rules. (Read the part about having the sheriff serve if you are in a bind.)
4. False. Busted again? Rule 45 of the Civil Rules permits attorneys to issue subpoenas. Unfortunately, the language mandating notice to the other side was difficult to interpret thus Rule 45.01(e) now mandates notice, except for subpoenas for trial. Sanctions are permitted for breach of the rule so watch your step.
5. True. Rule 115.09 of the General Rules gives the court discretion to permit telephone motions. Ask nicely, particularly if you have a minor dispute. Most courts have the capability to hear telephone motions and will permit the telephone hearing. Otherwise, enjoy the windshield time.
So, how did you do? If you stumbled in the first section, you have some serious catching up to do. The good news is that reading the rules for two hours regularly every Sunday afternoon is guaranteed to lengthen your life by two years because you will finally catch up on your sleep. Now on to Round 2.
Fill in the blank. Score 2 points for each correct answer.
1. Two types of cases need court approval before they can be settled and money distributed. They are cases for _______________ and _____________.
2. You may not bring a motion to compel sanctions for a violation of the discovery rules unless you have _________, under Rule 37 of the Civil Rules and Rule 115.10 of the General Rules, and then ____________ that you did so before the hearing.
3. Within 60 days of filing an action, you must file an ______________ statement with the court, after which the court will issue its ____________ order.
4. Now, time for a trick question. The two main parties to a civil suit in Minnesota are the _____________ and _______________.
5. Rule 68 of the Civil Rules was amended effective July 1, 2008. Under both the new and old version of Rule 68, an offer of judgment must be made _____ days before trial begins and is irrevocable for _____ days.
1. minor, incompetent. Rule 145 of the General Rules requires court approval to settle and disburse funds when you resolve these two types of cases. The trustee can settle a wrongful death case, but cannot distribute the funds without a court order. See Rule 145 and the comments.
2. conferred, certified. Rule 37 of the Civil Rules mandates that you certify you have conferred, or attempted to confer with the other side, before filing the discovery motion. Rule 115.10 of the General Rules says you can do this before the motion, but Rule 37 controls. The court really wants you to try and settle your differences, or at least narrow them down, before filing the motion. If things are at the point where you can’t talk to the other side, send a letter. Outline the problems. Sometimes these letters work. Watch your tone, however, because sometimes these letters end up attached to affidavits.
3. informational statement, scheduling. Rule 111 of the General Rules replaced things such as notes of issue. The informational statement is intended to advise the court of the nature of the case, and the parties’ suggestions for deadlines, trial dates, and so forth. The court then issues its scheduling order. In some cases, the court may call a conference to resolve differences before issuing the scheduling order.
4. plaintiff, defendant. Scared you with the trick question part, right?
5. ten, ten. The caution here is that Rule 68 was radically altered effective July 1, 2008. Because of the effects on costs, you are advised to “inform yourself” concerning the changes. Be careful with the new rule and when you serve your offer. It is possible to serve an offer of judgment more than 10 days before trial, but still have it accepted by the opponent the first day of trial. (How is it possible you ask? Hint: if the offer is served more than 10 days before trial, but the last day to accept is a holiday or weekend.)
Add up your points. Ten is the maximum for the last section. Now on to Round 3.
Short Answer. Score 3 points for each correct answer.
1. You serve a “Rule 30(b)(6) notice” on an opponent to produce a witness, “giving a general description sufficient to identify the person or the particular class or group to which the person belongs.” Your opponent calls and gives you a “raspberry.” What did you do wrong?
2. Your opponent files a motion for a protective order after you serve interrogatories. Opposing counsel claims your interrogatories contain more than 50 parts and subparts in violation of Rule 33 of the Rules of Civil Procedure. You move to compel. The judge finds for you. May the judge award you sanctions? Does the timing of the motions matter?
3. Your client is the plaintiff in a personal injury case and has alleged physical injuries and lost wages. The defendant serves authorizations for plaintiff’s medical records for which privilege has been waived, school records limited to the training for the job your client lost, and employment records for the employment you claim the client lost. Which authorizations does your client have to sign, if any, and why?
4. You draw the one judge you don’t want on your case. What, if anything, can you do?
5. On a summary judgment motion, affidavits based on personal knowledge can be used to put material facts before the court. Name at least three other methods of putting admissible facts in the record.
1. You used the federal numbering system, and your opponent caught it. What you wanted was a 30.02(a) notice under the Minnesota Civil Rules.
2. The timing of the motions does not matter. Under Rule 37.01(d) of the Civil Rules, the court can order sanctions. If the court finds that the response or objection was substantially justified, sanctions may be denied. If your opponent won, then sanctions could be awarded against you. Read the factors in the rule closely. And don’t serve more than 50 parts and subparts total for your interrogatories.
3. The client need only sign the medical authorizations. Nothing in the rules requires the client to sign other types of authorizations. (Note: the author has two orders from district court judges that are routinely sent when these other authorizations are requested.) The other records may be subpoenaed (with notice, of course.)
4. Now, time to learn the intricacies of Rule 63 of the Civil Rules. You get one, and only one, “automatic” removal under Rule 63.03, but you must exercise it in a timely manner. You must exercise it within 10 days of the judicial assignment in all events, but the time may be shorter. Once a judge has heard part of a case, you lose the automatic strike option.
Other motions are available, but they require a hearing in front of the judge you are trying to disqualify. Learn the rule and save yourself the embarrassment. You should also know that most judges are aware when you file to remove them. Don’t exercise your right to remove on a whim, and keep track, knowing that if you strike a judge in another case, you could end up in front of someone who knows you removed him or her in a different matter.
5. You can submit depositions, admitted facts (from the pleadings, or requests to admit, for example), and answers to interrogatories. Although it is sometimes the practice to provide minimal answers to interrogatories, keep in mind that you may want to load up your answers in anticipation of a motion, particularly where you might otherwise have difficulty putting facts before the court. (Not to mention the possibility that evasive answers might cost you evidence at trial.)
Add up the total from each round: 5 points available for the first round, 10 for the second, and 15 for the third, for a total of 30 points.
Under 10 points. You enjoy the practice of criminal but not civil law or are on inactive status. Do not go near the courtroom without local counsel.
10-20 points. Better, but the closer to 10, the more study you should do. Many good seminars are available; go.
20-29 points. You must practice civil law on a regular basis or be a very good legal secretary.
30 points. Your name is Kirsch, Herr, or Haydock, or you had to retire at age 70 because that is what the Minnesota Constitution mandates for sitting judges.
If you didn’t get 30 points, but you know why Kirsch, Herr, and Haydock are mentioned, then give yourself a bonus point. (Hint, go to the treatises.)
CHARLES T. HVASS, Jr., is an attorney at Hvass, Weisman & King, Chtd., in Minneapolis. He is a member of the board of International Society of Barristers, former president of the Minnesota Trial Lawyers, and on the General Rules of Practice Committee.