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

Social Media Discovery

Researching the backgrounds of parties has always been an essential aspect of litigation.  Now social media can provide fodder for depositions and settlement strategies. Individuals (and companies) share a great deal of information that could be useful in litigation.  For example, Twitter “tweets” have virtually no privacy protection and can be easily googled, revealing potentially […]

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OFP Hearing Testimony

It is a well-known legal axiom that an out-of-court statement made by a party-opponent is admissible against that party as nonhearsay in any subsequent legal proceeding. MN Rule Evid. 801D(2). However, a respondent’s OFP testimony cannot be used against him in his subsequent criminal trial. Minnesota law clearly states: “Any testimony offered by a respondent […]

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Digital Dexterity

Minnesota’s Rules of Civil Appellate Procedure were amended effective July 1, 2014.  The changes anticipate the digitization of all court records.  One important change: no more appendices.  There was a sense that appendices had become too long—and aren’t needed, now that the appellate courts have full electronic access to the lower court record. Without an […]

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Wrongful Death

Damages for wrongful death can be hard to obtain in Minnesota, where the law requires establishing “pecuniary loss.”  The difficulty was reflected in a recent ruling of the Minnesota Court of Appeals upholding a zero-damage jury verdict in Holtegaard v. Soo Line R.R. Co., 2014 WL 3396871 (Minn. App. 07/14/2014)(unpublished).  The jury refused to award […]

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Cross-Examination

Here are ten rules for cross-examination every attorney should know: Consider whether to cross-examine at all. Has the witness testified to anything that injures your case? Keep it short and simple. Use short, simple, leading questions with four to six words (if possible). Convoluted questions may lead the jury to conclude you are trying to […]

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Depersonalize Advocacy

In litigation and in disputed transactional work, it is the clients, not the lawyers, who are adverse.  Some litigation and transactional documents and arguments, however, seem to suggest otherwise.  They are phrased in personal terms, as though the dispute was all about the lawyers. We all have received letters from lawyers improperly referring to us […]

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Defamation Damages

Those seeking or defending against remedies for defamation, consisting of harm to reputation, face a number of issues not encountered in other torts, as reflected in Green v. Kellen, 2014 WL 2178783 (Minn. App. 2014)(unpublished), which affirmed denial of general damages and remanded for determination of special damages. The remedy of injunctive relief generally is […]

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Human Rights Act

A recent amendment to the Minnesota Human Rights Act allowing a jury trial at the option of any party may affect how lawyers and their clients evaluate, negotiate, and resolve claims of discrimination and harassment under state law.  Minn. Stat. §363A.33, subd. 6, brings the Human Rights Act into conformity with federal discrimination and harassment […]

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OFP & HRO Hearings

The hearing requirement for a Harassment Restraining Order (HRO)  or Order for Protection (OFP) includes the right to testify on your own behalf, to examine and cross-examine witnesses, and to produce documents. Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995). Failure to provide a party with a full and fair hearing will result […]

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Client Communications

Client communications today include social media, text messaging, and volumes of emails. Thus the odds of important client communications falling through the cracks are huge. Here are three strategies to tame the communication beast and limit potential malpractice issues: Implement a clear communication policy that informs clients of the acceptable forms of communication for your […]

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