Official Publication of the Minnesota State Bar Association

Vol. 62, No. 10 | November 2005
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Tips & Traps

Attorney Fees.  Certain federal and state statutes provide for an award of attorney fees to the prevailing party.  State and federal standards are identical.  The “lodestar” standard multiplies a reasonable hourly fee times the hours expended.  If you are a plaintiff, make careful, accurate and contemporaneous track of your time.  If you have multiple claims or multiple clients, indicate whether the task applies to all.  If the task applies to only some claims or some clients, specify this in your time entry.

If you are the defense, be aware of the substantial federal law which reduces attorney fees because of only partial success. The concept of “prevailing party” is not an all or nothing proposition.

Stephen C. Rathke
Lommen, Nelson, Cole & Stageberg PA
Minneapolis, MN


Age Discrimination. Younger employees are protected against age discrimination in Minnesota and a number of other states.  Although the U.S. Supreme Court has ruled that the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621, et seq., does not prohibit age discrimination against younger employees, the Minnesota Human Rights Act (MHRA) was recently construed by the 8th Circuit Court of Appeals to provide such safeguards.  In General Dynamics Land Sys. Inc. v. Cline, 540 U.S. 581 (2004) the Supreme Court, noting that the ADEA specifically applies to employees 40 years of age or older, ruled that it does not prohibit preferential treatment of older employees at the expense of younger ones.  But the 8th Circuit, in Ace Electrical Contractors, Inc. v. IBEW Local 292, 414 F3d. 896 (8th Cir. 2005) viewed the MHRA differently.  Affirming the decision of U.S. District Court Judge Paul Magnuson, the appellate court invalidated a provision of a collective bargaining agreement that sought to maintain a ratio of one employee over 50 years of age for every four employees under age 50 in the workplace. The court reasoned that the Minnesota statute, which does not have an age threshold, was intended to apply broadly to any discrimination on account of age, whether favorable or unfavorable to older employees. As a result, Minnesota joins a handful of other jurisdictions that bar discrimination against younger employees under their own state antidiscrimination laws.  The decision could have bearing on the hiring and firing of employees, how employers advertise for positions, as well as perfecting decisions regarding promotion, salary increases, and perhaps even severance plans that are more beneficial to older employees or those with more longevity in the workplace.

Marshall H. Tanick
Mansfield Tanick & Cohen, PA


Attorney-shopping Clients. Should you take a client who is searching for their second, third or fourth attorney for their pending family law case? It’s best to be very selective. Inquire in detail about problems the client had with the former attorney so you’re confident you can offer something more or different; otherwise you too may disappoint the client. If you agree with the former attorney’s approach, or can see that the client’s dissatisfaction is due to misunderstanding why the former attorney did certain things, take the time to explain.  I encourage such clients to try again with the former attorney, both to save the expense of starting over and out of respect for professional colleagues. I am no more magician than any other attorney.

If you do agree to be a subsequent attorney, explain what you will try to do in the representation and be sure to follow through with the plan. Encourage the client to deal with the former attorney directly on any fee disputes, complaints, etc., but make it very clear that you will not get sidetracked into those issues. Focus on the case for which you are retained.

Deborah N. Dewalt
Dewalt Law Office
Burnsville, MN


Products Liability. Winning a defective product case is never easy, but why make it more difficult by bringing such a case in federal court?  According to recent research by Ned Miltenburg, senior litigation counsel for the Center for Constitutional Litigation, PC (formerly ATLA’s Legal Affairs Department), plaintiffs lose 70 percent of Daubert motions to exclude expert testimony.  Moreover, Daubert rulings are overturned on appeal only 5 percent of the time. Miltenberg’s paper is available from Independent Counsel Resources,

Ron Schneider
Schneider Law Firm
Willmar, MN


Trust Fiduciary as Counsel.  Many lawyers act as trustee or personal representative for clients and also retain themselves or their law firm as counsel. This dual role is permissible. However, if the lawyer/fiduciary is asked by a beneficiary or creditor of the trust or estate to also represent them in a matter then the utmost caution should be exercised. The issue of the lawyer serving as a fiduciary and concurrently representing a beneficiary or creditor of the client’s estate or trust was addressed in ABA Formal Ethics Opinion 02-426  (May 31, 2002).  Given the potential for conflicts that this arrangement poses it is recommended that the lawyer/fiduciary avoid representing a beneficiary or creditor of an estate or trust while the lawyer is serving as fiduciary, whether the matter is related or unrelated.

William S. Forsberg
Parsinen Kaplan Rosberg & Gotlieb
Minneapolis, MN