Trial lawyers have been the object of criticism and calumny ever since trials — and lawyer jokes — were invented. Sometimes, those observations have come from members of the bar.
In his notes for a law lecture, Abraham Lincoln mulled the stereotypes. “There is a vague popular belief that lawyers are necessarily dishonest,” Lincoln wrote. “I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal.”
Of course, Lincoln’s ruminations were made long before McDonalds sold hot coffee at drive-through windows, and the “vague popular belief” has long since been ensconced as an article of faith in the popular culture.
It’s against that backdrop that the Minnesota Association for Justice works to advance the contrary view.
These days, the organization — which was formerly known as the Minnesota Trial Lawyers Association — casts itself as an advocate for the rights of consumers. With a criminal section and a family law section, MNAJ leadership says, it is not just about personal injury verdicts, but also about continuing legal education, mentoring new lawyers and peer support.
At its recent convention at Arrowwood Resort in Alexandria, incoming MNAJ President Peter Schmit took the gavel, libations flowed and honors were doled out to a trio of veteran practitioners. Former MNAJ president and veteran Meshbesher & Spence litigator Mark Streed was recognized as Member of the Year, TSR Injury Law partner Chuck Slane garnered the Excellence Award and medical malpractice specialist Robert P. Christensen received the Lifetime Achievement Award.
Before that, Minnesota Lawyer editor Barbara Jones met with Schmit and outgoing president Steve Terry to catch up on MNAJ’s efforts to improve the civil justice system, educate consumers about law and bring new lawyers into the fold.
Minnesota Lawyer: Let’s talk about this organization for people who are new to it. It used to be called the Minnesota Trial Lawyers Association and now it’s called the Minnesota Association for Justice. Can you talk a little bit about what you’re doing? Why do we have a trial lawyers’ association?
Schmit: Our main mission is to protect consumers’ rights. How we get there is a variety of means. We work at the Legislature to pass consumer-friendly laws and to defeat non-consumer-friendly laws that tend to be produced by certain parties.
ML: And to be clear, when you’re talking about consumers, you’re including consumers of health services, right? Are the members all personal injury lawyers?
Schmit: Primarily, but we’ve got a criminal law section and family law. There are some workers’ comp lawyers, there are some disability lawyers. We’re the only organization in the state that advocates in the Legislature and in the courtroom for injured folks. The other side has a lot of people speaking for it. [By the other side I mean] the American Medical Association, the Chamber of Commerce, the Insurance Federation — there’s a long list of folks who will donate their time and their money to advance their interests.
Terry: The Koch brothers…
Schmit: Yes, the Koch brothers. And often we’re the only ones there advocating for the people who will be adversely impacted by laws.
ML: Let’s talk about a few of the laws. What’s going on with comparative fault?
Terry: Joint and several liability got changed several years ago with the supposed edict that you should only pay your fair share. Over time [public policy] shifts from “we want to help the injured parties; they did nothing wrong and we want to protect them,” to the at-fault drivers saying “we only want to pay our fair share.” So as a society, it’s [a question of] do we want to protect the victim or do we want to protect the tortfeasor? When joint and several got changed, it shifted back to “we want to protect the tortfeasor.” And who really benefited from this was the bars.
What the law used to be was if you were a certain percentage at fault and the other “bad people” —bars or other tortfeasors — could not pay their part, their liability got reallocated to the tortfeasor who could pay. And if the emphasis is on helping the person who did nothing wrong, that’s a good policy. But over time that changed, and now if a bar over-serves somebody and that driver goes out and kills somebody, usually jurors will only blame the bar 10 to 20 percent. So that almost eliminates the ability to blame the bar because if you can only collect [that 10 to 20 percent of the bar’s insurance coverage] it would cost more than that to pursue the claim. That’s why it is so devastating.
Certain people at the Capitol want caps on damages. That’s a fight we often have but we so far have won that fight. They want the caps to prevent frivolous lawsuits but the most injured people are the ones most hurt by caps. It’s the complete inverse of reality.
The Staab case looked at the question of allocation. A husband was pushing his wife in a wheelchair and she got hurt. The jury came back and blamed the husband, even though he wasn’t on the verdict form. [The wife cannot collect on the husband’s or the couple’s insurance, even if he was at fault.] He essentially has no assets so they were trying to reallocate back to the church. That reallocation effort failed.
So as a practical matter, the answer is to put everyone on the verdict form.[Editor’s note: The case is Staab v. Diocese of St. Cloud, where in 2014 the Supreme Court said, “[A] party who is severally liable under Minn. Stat. § 604.02, subd. 1, cannot be required to contribute more than that party’s equitable share of the total damages award through the reallocation-of-damages provision in Minn. Stat. § 604.02, subd. 2.”]
ML: What’s coming up at the Legislature for MNAJ?
Terry: There are two issues that Peter’s going to be dealing with when he’s over at the Legislature 30 hours a week. One is called drop-downs and the other is survivorship. We tried to work on these this year and they got bogged down. These are issues where consumers have no understanding of what’s going on.
Drop-downs apply to non-basic auto policies. This is an excess policy like an umbrella policy, uninsured motorist or underinsured motorist. You can buy a certain amount of coverage but if the person who is injured is a family member, you are subject to this drop-down and you can go from a million dollars in coverage to $25,000.00.
Agents sell this stuff and it’s bad.
Schmit: I don’t practice in this world. Do the agents even know what they are selling?
Terry: I will tell you that my agent didn’t know on my motorcycle policy. The drop-down is a very secret, non-consumer-friendly event that nobody knows about. At a minimum the insured should have to sign off on it. The greater fight is going to be about survivorship because there are a lot of sound bites against survivorship.
ML: This is about a negligence claim surviving the death of the victim, not a wrongful death claim.
Schmit: [The rule is for cases where the victim dies from an unrelated cause.] It currently impacts elders and nursing home litigation.
Terry: There are cases [of abuse in nursing homes] where they’ve got videotapes, the guy could go to prison, but the family has no rights because if the person dies for unrelated causes the whole thing goes away. The way you defend the case is you just sit. These people are already vulnerable, they are in a nursing home for a reason. If you delay, the case can disappear.
People say why should the family recover, they didn’t suffer. First of all they did suffer [knowing their relative was abused] and the second thing goes back to, who do you want to help? Do you want to help the nursing home?
ML: So the argument against eliminating the survivorship law is why should the relatives get money?
Schmit: Correct, and that we’ll open the floodgates of litigation, the same thing we hear a lot.
Terry: We had this passed two years ago. Passed. And at the last second [Senate Majority Leader Tom] Bakk traded us.
ML: Minnesota is considered a progressive state. What’s your sense of what’s going on in the rest of the country?
Schmit: In the world I live in [medical malpractice] we have no caps, so even though we have very conservative jurors, we’re a lot better than a lot of other states.
Terry: The problem is when these anti-consumer laws are passed, voters are sold a bill of goods, but when you’re hurt and you have a legitimate case, no one will take it. Who does that hurt? That is the deep dark secret that nobody knows about.
Schmit: That’s reflected in this organization too. In 2007 or 2008 there were 1,200 to 1,400 members. We’re down to 880, I think, at last count. I think there’s not as many lawyers doing this kind of work because of the effect of some of these laws.
ML: Can you make a guess as to what percentage you accept of medical malpractice cases that come to you. Is it 10 percent?
Schmit: It’s less. It’s about 3 percent. That’s to get in the door to do an investigation, and of that 3 percent, maybe 50 percent make it to sending out for expert review and of those, maybe 50 percent go ahead.
Terry: Any malpractice firm in Minnesota has to have those kinds of numbers [of cases accepted] because you are going to lose the majority of them.
ML: Moving away from legislation and into litigation, are there issues you would like to see addressed?
Terry: I think it would be nice if the judges who are appointed at any level had any civil law experience. We’re finding that we’re paddling upstream trying to get basic things done with some of these judges because of their inexperience.
Schmit: MNAJ does a school for judges on tort law.
Terry: It’s to talk about concepts that we deal with daily so they have basic knowledge and then they can listen to arguments and go from there. The fight is that the judges are not overly aware of the issues and we feel the defense bar takes advantage of that and brings motions that we view anyone would know would not pass but they just take a free swing because you never know. We spend our time trying to educate judges.
Schmit: One other thing, and I don’t think it’s decreased, is the district courts using summary judgment to try and move their calendars. They are not fact-finders but you read these decisions, particularly on immunity issues, they are commenting that the weight of the evidence does not support x, y and z. That’s not the proper place for that. We raised it [with some judges] and I’m not sure what kind of response it got.
Terry: It was cold.
ML: The Minnesota Defense Lawyers Association is engaged in a push toward increasing diversity. Do you perceive that as an issue for MAJ?
Schmit: Certainly. Both Steve and I have been involved in the education and convention committees and it was a struggle for us to even find women to speak on a particular topic; certainly people of color. Part of it might me where we are and what we do. I don’t know that there are a lot of personal injury lawyers of color.
Terry: I’ve had meeting with young lawyers, women, minority groups — we’ve tried to bring them in with mentors and sometimes it works and sometimes it doesn’t.
Schmit: Steve and I know that mentoring is critical to helping young folks advance in this profession. I never could have done it without them. Terry Wade was one of my mentors, he [presented at the MNAJ convention] with Brandon Vaughan, a younger African-American lawyer with whom he has worked. Terry is a north woods Cloquet guy, and Brandon Vaughan is a Chicago suburbs guy, a young hipster. It works out great. That’s what it’s about this year.
ML: Do you have a formal program with assigned mentors?
Terry: Formal is a strong word. We definitely have been emphasizing it in the last few years, especially at the summer and winter conventions. Some firms sponsor first-time attendees financially. We have an event there where new attorneys meet other new attorneys. Once you have developed your own comfort level you take it to the next layer.
We want MNAJ to be a positive experience so that [new lawyers] want to show up, want to participate, want to volunteer.
Schmit: In the last 10 to 15 years we’ve worked hard to make it more appealing to younger folks. Before it was people who’d been around a long time and they all knew each other. It was tough to break in. We’re working to change that.