72 Bench&Bar of Minnesota ▲ May/June 2014 www.mnbar.org
Tips&Traps Tips Traps ▲ ▲
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 laws, which
have always allowed jury trials.
Additionally, state law claims heard
in federal court, either as diversity-of-citizenship actions or ancillary to
pending federal claims, have been
entitled to jury trials under the 7th
Amendment. Kampa v. Whole
Consolidated Industries, Inc., 115
F.3d 585 (8th Cir. 1997).
Minnesota’s new jury trial provision takes effect on August 1 and
will likely enhance the value of
some discrimination and harassment claims by plaintiffs. In some
instances, defendants may find it
advantageous to opt for a jury trial
if they feel that the claimant is unlikely to make a favorable impression. The identity of the judge to
whom the case is assigned also may
be a factor for both sides in assessing whether to seek a jury trial.
The new statutory right leaves
some questions unanswered. One
issue could be the scope of damages
that may be awarded by juries, such
as civil fines allowed under the reinstatement law, and front pay, which
is reserved to judges under the various federal discrimination laws.
Marshall H. Tanick
Hellmuth & Johnson, PLLC
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:
1. Implement a clear communication policy that informs clients of the
acceptable forms of communication for your law firm and the expected turn
around time for responses. Clients are now using Twitter, and Facebook
direct messaging to contact lawyers who’ve not responded “quickly” enough
to their inquiries. If you are connected with clients on these platforms,
do not respond in this manner. Email or phone them, and reference the
communication policy, which should provide that your firm does not accept
social media communications.
2. Consider limiting client communication to a client portal system
available through most law practice management services. Not only does
the portal provide more security for client messaging, it also allows you to
streamline communication in one place. No more worry about overlooked
or incorrectly filtered email messages.
3. Review your operating procedures and identify
additional ways to streamline communications.
For instance, you should
only receive client
documents in one place.
Choose whether you will
accept by email or your
client portal—but not
communications is critical. Be proactive.
Develop operating procedures and systems that
minimize ethical disasters.
Matthew Tollin, CEO
Patrice Perkins, National Social Media Director
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 in reversal of the order.
In the past 12 months the court of appeals has reversed the
issuance of two separate HROs based on Due Process violation(s).
See, State v. Brown, A13-1092 (Minn. App. 12/30/2013); Dillon v. Burton,
A12-1369 (Minn. App. 05/06/2013).
During contested OFP or HRO hearings, the court must afford both parties a
full and fair hearing which includes the following basic due process rights: a) The
right to testify on your own behalf and to complete your testimony; b) The right
to call witnesses, or in the alternative to make an offer of proof as to what the
witness’s testimony would be if allowed by the court; c) The right to cross-examine
the other party and any witness that testifies.
Failure to provide litigants with those basic due process rights will usually result
in a reversal of the order. State v. Johnson, 755 N. W.2d 758 (Minn.App.2008).
Judge Alan Pendleton
10th Judicial District, Anoka