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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

‘What would a lawyer 100 years from now think of this decision?’

An interview with Justice David Lillehaug of the Minnesota  Supreme Court

Justice David Lillehaug was appointed to the Minnesota Supreme Court in 2013 by Gov. Mark Dayton. Immediately prior to joining the Court, he was a shareholder at Fredrikson & Bryon, P.A. with a diverse and exciting litigation practice. Justice Lillehaug left private practice for several years to serve as the United States Attorney for the District of Minnesota. After law school at Harvard and before starting in private practice, he was a law clerk to U.S. District Court Judge Harry MacLaughlin. 

Justice Lillehaug came to the Supreme Court with about 25 years of private practice experience, a record of public service, and a passion for justice. When he is not asking interesting hypotheticals during oral argument to test the boundaries of a case, Justice Lillehaug can be seen throughout the state at MSBA bar events, listening to communities’ concerns about the judicial system, and judging law, college, and high school students in moot courts and mock trials. Justice Lillehaug and I recently discussed subjects ranging from his time on the Court to the skills that he gained growing up as the son of a band director.

Jon Schmidt: What surprised you the most when you joined the Court? 

Justice David Lillehaug: The emotion arising out of responsibility. Before joining the Court, I knew plenty about its constitutional role, its history, and how it worked. I certainly knew intellectually that the judicial responsibility was a heavy one. But I really felt it viscerally on my first day on the Court.

I was sworn in at 8 a.m. and, an hour later, was donning the black robe for the first time to hear my first case. At oral argument, I waited for all of my more senior colleagues to ask their questions, and then I jumped right in. Good enough. The big surprise came in the deliberations immediately after oral argument, when it appeared that my vote would decide an important case.

In that moment, my stomach dropped and my lips went dry. I remembered that, in private practice, I had cited Supreme Court cases from the 1860s and 1870s. The thought flashed into my head: What would a lawyer 100 years from now think of this decision? And would it prove to be right or wrong? At that moment, I truly felt the weight of the robe. 

There’s an anticlimax to the story. It turned out that I wasn’t the deciding vote; in fact, I ended up writing a dissent. But I try to recapture the emotion of that day to remind myself what a privilege it is to serve on a court of last resort. 

Schmidt: What do you miss—and not miss—about private practice?

Lillehaug: What I miss is the flip side of what I love as a justice.

I miss being an advocate, but I love being a decision-maker.

I miss the adrenaline rushes from litigating, but I love the quiet time to think and write.

I miss the clients (mostly), but I love deciding—not just for a party, but for the rule of law.

I miss my law firm colleagues, but I love working with the other justices.

And, okay, I’ll admit it: I don’t miss keeping my time. I love letting the work flow without interruption. 

Schmidt: You are the son of a band director. What did your dad teach you about music (and band) that has carried with you throughout your personal life and legal career? 

Lillehaug: My dad believed in “practice, practice, practice.” And he extended that idea to other, non-musical matters. He was always prepared and organized. He walked fast and talked fast. His diligence and his energy inspired me.

Most importantly, my dad was a person of great integrity. When he was young, he had his own father sign an autograph book. My grandfather wrote: “Always remember: honesty is the best policy.” My father took that to heart. When confronted with ethical or moral dilemmas, I ask myself: Which decision would make my dad proud of me?

Although your question is about my father, I learned as much from my mother. She’s 90 years old and sharp as a tack. She follows current affairs closely, and has a remarkable ability to cut to the heart of a matter. I know I inherited my early-onset white hair from her and, I hope, a lot more. 

Schmidt: During oral arguments, you often ask hypothetical questions. How do you come up with these creative hypotheticals? What are you looking for from the attorney in response to those hypothetical questions?

Lillehaug: Yes, I do use hypos. It’s the way I think about legal issues. We’re not just deciding one case; usually we take review not to correct a specific error, but to announce or clarify a rule of law. So I identify rules of law from our precedent, apply them to the case before us, and then consider the potential consequences of extending or limiting the precedent. Hypos help me establish the boundaries of the rules. And I look to the attorney to mark and justify the boundaries. 

How do I come up with my hypos, creative or otherwise? Sometimes they come from my own experience; I’m lucky to have litigated in both civil and criminal arenas. Sometimes they come from the morning newspaper. And sometimes I take them from TV or the movies. 

We had an employment case the other day involving allegedly confidential information, so I proffered a hypo involving Kentucky Fried Chicken’s secret recipe of 11 herbs and spices. We had some fun with that. When we have an argument at a law school, I try to connect the case to something that might interest the students. One time I used a hypo inspired by the finale of Breaking Bad. 

Schmidt: What are your top three tips for attorneys preparing for oral argument before the Minnesota Supreme Court? 

Lillehaug: First, do answer the justice’s question. Here’s a tip on how to be ready to do that. Prepare your oral argument outline and then let it sit for a few days. Then, when your mind has cleared, ask yourself: “What are the five questions I fear the most?” You know your case’s vulnerabilities. Write down the five questions and then write out the answers. Make every answer start with the words “yes,” “no,” or “Your Honor, I can’t answer that question yes or no, and here’s why.” If you do that, we’ll let you explain your answer. If you don’t—if you duck, evade, or pivot—the justices will smell blood in the water. We’ll persist until you answer. Sometimes that’s not pretty. 

Second, do have a strategy in rebuttal. It’s tempting to use a canned rebuttal or, alternately, try to answer each and every point made by opposing counsel. Instead, pick a couple of key arguments; refute them or even turn them around to show the strength of your client’s position.

And third, do be prepared for my and others’ hypothetical questions. This answer won’t work: “Your Honor, that’s not this case.” Of course it’s not; we’re trying to settle on a workable and durable rule of law, not just for your case but for the enduring jurisprudence of the State of Minnesota. So, use our hypos to tell us what rule of law to adopt.

Schmidt: You have expressed some views about unpublished, or non-precedential, opinions from the Minnesota Court of Appeals. What caught your interest on that particular topic?

Lillehaug: I’m concerned that too many court of appeals decisions are unpublished, or non-precedential. Many seasoned litigators share that concern. Two experiences generated my interest. 

First, in private practice, I had cases on significant issues I thought were cutting-edge; yet they resulted in unpublished opinions. In a couple of those cases I had to work hard to persuade the clients to ignore the unpublished label, and allow me to petition (successfully) for review in the Supreme Court. Many active litigators tell me about similar experiences. 

Second, I put together the data that shows that about half of the petitions of review that we grant are from unpublished decisions. Yet the criteria for publication in the Court of Appeals and the criteria for granting review in the Supreme Court are pretty similar. So there seems to be a disconnect. 

We have a great court of appeals, but I think some members of that court are being too “Minnesota modest” about the importance of their opinions. In 2016, only 8 percent of the decisions were published; that’s a dramatic drop from the early years of the court. Fortunately, it looks like 2017 may be the year the trend turned around. 

Schmidt: What is your ideal vacation?

Lillehaug: Funny you should ask; right now I’m working hard to clear the decks to go on vacation for a week. In winter, my ideal vacation includes all of the following: time with my spouse and old friends, warm air (ocean or desert), playing some mediocre golf, hiking, and watching some March Madness. In the fall, I enjoy pheasant hunting in western Minnesota or at the old family homestead in South Dakota. 

A different version of my ideal vacation would involve at least a couple of weeks of foreign travel. More of that will have to wait a few years. I’m hoping to sit on the Court until mandatory retirement at age 70. 

Schmidt: You have been a great mentor to many younger attorneys. What has motivated you to spend so much time on mentoring lawyers?

Lillehaug: Thanks for noticing. It’s probably because mentors have been so important in my own life, and I’m now at an age when most of them have passed on. So I’ll pretty much have a cup of coffee with anyone who seeks some career advice. 

I’m sure I’ll err by omission, but I have to give a shout-out to two of my mentors important in Minnesota history. One is Vice-President Walter Mondale, with whom I traveled for a year and a half during his presidential campaign. I learned so much from him about integrity and grace. The other was one of the vice-president’s best friends, U.S. District Court Judge Harry MacLaughlin, who also served on the Minnesota Supreme Court. My clerkship with Judge MacLaughlin is directly relevant to what I’m doing now. Just the other day, while writing an opinion, I heard in my inner ear a piece of his wise advice. I hope someday my law clerks will be able to say something similar about me.

 

JON SCHMIDT is an Assistant Hennepin County Attorney in the Special Litigation Division—Appeals Unit, focusing exclusively on criminal appeals. Prior to joining the Hennepin County Attorney’s Office, Jon was a shareholder at Briggs and Morgan, P.A., with a varied appellate and litigation practice. He lives in St. Paul with his wife (Ramsey County Judge Sara R. Grewing) and their two kids.

 

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