Attorney fees: A bill passed by a House committee late last month would pressure attorneys to accept early settlement offers and to avoid steering plaintiffs toward trial.
House File 923 passed in a 9-6 party-line vote of the Civil Law and Data Practices Policy Committee on Feb. 21. Its author is Rep. Jim Knoblach, R-St. Cloud.
Knoblach’s bill would bar judges from making defendants pay attorney fees in cases where a civil plaintiff’s final, post-trial monetary award is smaller than the defendant’s initial offer.
“This is to encourage settlement early on, instead of encouraging a situation where it might be in the attorney’s interest to bring a case all the way through trial and then rack up significant attorney’s fees,” Knoblach said.
Unsurprisingly, plaintiffs’ attorneys do not like that idea.
Joshua Newville, a Minneapolis employment law attorney, said it would hurt litigants facing job, age or race discrimination by pressuring their attorneys to accept low-ball offers early on rather than take a case to trial and putting their fees at risk.
“The incentive is to settle this thing out for some nuisance value rather than getting this individual what they deserve,” he said.
Ron Elwood, supervising attorney for Mid-Minnesota Legal Aid, agreed. He said the bill would expose low-income and vulnerable adults to scammers who he said tend to nab only $1,000 to $3,000 from their victims.
“Because of the small amount of damages sought and attained, this bill would effectively prevent private attorneys from taking those cases,” Elwood said.
Opponents earned one small victory. The original bill included a proportionality provision requiring judges to “take into consideration the reasonableness of the attorney fees sought in relation to the amount of damages.” Since that already exists in statute—though often is ignored, Knoblach contends—he removed it.
That didn’t resolve all concerns. Real estate attorney Jonathan L.R. Drewes said the remaining provisions might impinge on equitable-relief cases where the goal is not monetary—halting a sheriff’s sale, for example.
Drewes said the law favors the powerful, incentivizing rich defendants to offer nominal monetary settlement offers to poorer plaintiffs—perhaps as little as $100, he said—instead of the relief actually sought.
“If I don’t take that offer but I end up winning and stopping the sale, apparently I am not going to be able to acquire any of my attorney fees,” he said.
Knoblach disagreed. “This only applies to money-damages cases,” he said. “So I don’t think this is a relevant line of argument.”
Shortly before the committee vote, Rep. John Lesch, DFL-St. Paul, gave the bill a skeptical summary. “You can get justice,” he said, “just as long as you don’t have to pay your lawyer.”
The bill now heads off for an eventual House floor vote. Senate File 1210, the companion bill from Sen. Jerry Relph, R-St. Cloud, has yet to be acted upon.
Freezing out trespassers: For a bill that doesn’t seem to do very much, House File 985 generated a lot of heat during recent committee hearing.
The bill was approved Feb. 14 in a straight 8-6 party-line vote of the House Civil Law and Data Practices Policy Committee.
According to supporters, the bill merely freezes into statute longstanding common law that limits trespassers’ ability to sue landowners if they get hurt while intruding on a property.
“What we would like to do here is basically protect landowners from what I would consider to be frivolous lawsuits,” said the bill’s author, Rep. Dan Fabian, R-Roseau.
The issue was raised, supporters said, by publication of the third edition of the American Law Institute’s Restatement of Torts. Highly influential in judicial circles, the book was published in 2013.
Bob Johnson, president of the Insurance Federation of Minnesota and board chair of Minnesotans for Lawsuit Reform, said the institute’s latest guidance jeopardizes landowners.
“Landowners now owe a duty of reasonable care to all entrants on their lands,” Johnson said. “That would dramatically expand trespassers’ rights to sue landowners.”
Joel Carlson, the Minnesota Association of Justice’s chief lobbyist, countered that the bill is based on model legislation from the conservative American Legislative Exchange Council (ALEC). While its language is “extremely unclear,” he said, the bill raises separation-of-powers issues, using legislation to limit judicial choice.
GOP lawmakers would not likely endorse a similar bill drafted by a liberal interest group, he suggested.
“If I appeared before you and told you that I want you to freeze the law on, pick an issue—abortion rights, privacy, insurance rates—you would laugh at me and shoo me off this witness podium,” Carlson said. “But that’s exactly what you’re being asked to do here.”
Mike Steenson, a professor at the Mitchell Hamline School of Law and an American Law Institute member, said the bill does little to improve landowners’ protections. The Restatement of Torts already refuses “flagrant trespassers” any right to recover damages, he said.
While that phrase is left undefined—the institute wants to preserve judges’ interpretive latitude, Steenson said—the latest restatement denies a trespasser’s right to seek relief after, say, crawling through a basement window and getting cut on broken glass.
Challenged by Democrats to cite any examples of germane Minnesota cases filed in the wake of the restatement’ publication, supporters could not. But that is not the bill’s point, Johnson said. “Why the bill is here is because current Minnesota law in this area is solid,” he said.
The bill now moves to the House floor for an eventual floor vote. There is no Senate version.
Booze on Sunday: In a move guaranteed to generate business for retailers and lawyers alike, the Minnesota House on Feb. 20 passed a bill to legalize Sunday liquor sales. The vote was 85-45.
“It’s time,” bill author Rep. Jenifer Loon, R-Eden Prairie, said during floor debate. “I want Minnesota retailers to be able to have that business and to keep those tax revenues here at home.”
House File 30 includes a few compromise provisions that helped swing the votes of lawmakers who previously voted against Sunday sales. It limits sales to the hours of 10 a.m. to 6 p.m. on Sundays, for example, and prohibits retailers from accepting alcohol deliveries on Sundays.
Rep. Laurie Halverson, DFL-Eagan, said Loon’s efforts to strike compromise with opponents like the Teamsters Union and the Minnesota Licensed Beverage Association helped swayed her vote. “I think that it is a great lesson for all of us in terms of where we can go if we give a little bit on either side,” she said.
An amendment to use new sales taxes from Sunday sales to fund addiction treatment programs was dropped prior to the vote. Loon promised to push for that as a separate bill.
Opponents, though unsuccessful, were vocal on both sides of the aisle. Rep. Glenn Gruenhagen, R-Glencoe, said granting Sunday liquor sales sends a bad message to Minnesota’s children.
“We have embraced a new type of freedom or liberty—I call it a licentious freedom” he said. “Sometimes we use the word ‘liberty.’ I prefer the word ‘libertine.’”
Rep. Jack Considine, DFL-Mankato, said Sunday sales paves the way for big chain retailers to muscle mom-and-pop shops out of business. “I think we are on the road where everybody’s children and grandchildren will end up working for a big box store,” he said.
The bill is said to face a tough uphill climb in the Senate, where Majority Leader Paul Gazelka, R-Nisswa, is among its skeptics.
Nonetheless, it passed it first test, clearing the Senate Commerce and Consumer Protection Finance and Policy Committee on Feb. 21 by a 7-4 vote.
The full Senate plans to take up the bill for a final floor vote during its 11 a.m. session on Monday.