Delegating on a Deadline: Motions to Dismiss

Everybody knows the longer a case goes on, the more money you spend, and that the closer you get to trial, the faster you spend it. If it’s a case you don’t want to try, or believe you shouldn’t have to try, dispositive motions offer a way out. Dispositive motions—motions to dismiss, motions for summary judgment—are the kind that make or break the case. You get one good shot, and your motion must make it obvious to the court why the case should proceed no further. Since the U.S. Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal in 2007 and 2009, respectively, motions to dismiss under Federal Rule 12(b)(6) have experienced a renaissance. These motions are directed to the allegations of the complaint, and may be filed instead of an answer within the 21 days provided by Rule 12. Let’s say your client gets served with a federal complaint and must choose—soon—whether to answer or dismiss. Research into current pleading standards is critical. Ideally, you’ll need cases with similar factual allegations that were dismissed under Rule 12(b)(6). Compare those allegations to your complaint; if similar cases get dismissed, there may be grounds for a motion. Remember that procedural posture matters: cases dismissed after discovery on motion for summary judgment, or after trial, or on appeal, will provide little support for the argument that a claim was not properly pleaded. Done right, a motion to dismiss can quickly end a case that has no chance of success. If not well supported by proper authority, however, it can be an expensive shot in the dark. Because sophisticated research is essential and time is short, motions to dismiss can be a great project to delegate to an associate or a freelance attorney. Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal...

Minnesota’s New Appellate Rules: Top 5 Things to Know

Minnesota litigators: new appellate rules went into effect on July 1. Here are the highlights of what you need to know. Don’t prepare an appendix, but your addendum can be longer. As of July 1, 2014, no party may attach an appendix to its brief. Appellants are still required to prepare an addendum with the relevant order included. Both parties are also allowed 50 pages of discretionary content in the addendum. See Minnesota Rules of Appellate Procedure 130.01, 130.02. You (probably) don’t need a cost bond. Under the new rules “[n]o cost bond is required for any appeal, unless ordered by the trial court on motion and for good cause shown.” See Minnesota Rules of Appellate Procedure 107.01. Don’t file as many copies of the brief. The rule stating the number of paper copies of a brief to file with the appellate courts has been changed to refer to standing orders from each court. As of July 1, both the Minnesota Supreme Court and the Minnesota Court of Appeals require five copies of briefs. Leave two unbound for the supreme court and one unbound for the court of appeals. See Minnesota Rule of Appellate Procedure 131.03; Standing Orders from Minnesota Supreme Court and Minnesota Court of Appeals. You don’t need to get a certified copy of the order. The relevant order or judgment must still be filed with the appellate court, but it is no longer necessary to have the document certified. See Minnesota Rule of Appellate Procedure 103.01, Advisory Committee Comment – 2014 Amendments. E-filing for all appellate documents is on the horizon. Other changes to the appellate rules have been made to accommodate electronic filing in the appellate courts. There is a pilot project in the works, but e-filing is not allowed in the absence of a court order. See Minnesota Rule of Appellate Procedure 125.01. If...

MFAN Holds Summer Social

On July 9, 2014, MFAN members gathered at Sweeney’s Saloon in St. Paul for a fun summer outing. Those in attendance enjoyed catching up on one another’s practices and brainstorming ideas for MFAN’s next year. Special thanks to everyone who made it, and here’s to another great year for MFAN! Effective June 1st 2016, Lynn Walters is no longer accepting assignments as a freelance attorney. Lynn’s new company, Blackstock Walters, LLC, offers litigation support services such as legal research, motion preparation, and document summaries on a project basis. MFAN Bio | Email | Web | LinkedIn | MFAN...

Why Law Firms Need Freelance Attorneys

In a recent post, the Wall Street Journal Law Blog discussed findings from the 2014 Law Firms in Transition survey, an annual report compiled by a national legal consulting firm. Highlighting the average $160,000 starting salary for new associates at large law firms, the WSJ Law Blog poked fun at law firm leaders for their delayed response to a changing market where clients and competition are demanding more cost-effective legal representation. Despite the WSJ Law Blog’s conclusion that new associates at large law firms are “too expensive and often misaligned with client value perceptions,” the blog post poses an important question for all law firms, large and small: what is the best way to deliver cost effective yet high quality legal services in a changing and competitive marketplace? One of the primary pieces of advice proffered by the 2014 survey suggests that law firms of every size need to “align staffing with profitability.” Specifically, the survey admonishes law firms to stop assuming that a new associate is needed whenever work volume is pressing, and instead consider conserving expenses by using “different kinds of lawyers.” And what type of “different” lawyer might fit the bill? Answer, a freelance attorney. Freelance attorneys are independent contractors who can be hired by law firms on a contract project basis to work on a specific case, transaction, or project when extra but temporary help is needed. Experienced freelance attorneys require a minimal investment of time and training by the law firm, but produce high quality output and add value to the end result of any case or transaction. Plus, the cost of using a freelance attorney is economical because the freelance attorney will be the least expensive attorney billing on the file. The end result is an efficient win-win for both the law firm and the client that doesn’t adversely impact the quality of...

Freelancing: Declaring Independence

One benefit of freelancing is that you’re suddenly part of a large and growing entrepreneurial group. Last year I registered my freelance law practice at the Freelancers Union, a New York-based nonprofit dedicated to improving the lives of all independent workers, not just freelance attorneys. I’ve found the Union’s tips translate well into freelance law practice. This week’s example, by business coach Justine Clay, is a post called The Secret to Nailing Your Marketing Message. “Message” is marketing-speak for your pitch, your elevator speech, the short description of your practice that communicates what you do in a way that sets you apart from others. Because freelance lawyering is a new niche, people are always asking me, “what exactly do you do?” And so I get hundreds of opportunities to refine my message, but usually without any feedback on what potential clients actually care about. Can I do better? Here’s Clay’s advice: this summer, reach out to a handful of your very best clients. Ask them to help you sharpen your message by chatting with you for 20 minutes. When you meet (or call), ask why they came to you, why they’ve stayed with you, what effect working with you has had on them, and what they need that you don’t offer (yet). Try a live, real-time chat rather than an email questionnaire, because you want spontaneous feedback. Listening to your clients? What a concept! I’ve never sought out this kind of feedback before, mainly because I’ve worried that my clients are too busy. Clay assures me people are more receptive to this approach than I might think. So this summer, I’m going to ask for—and listen to—client feedback. Because we’re independent, but not alone. Have any of you interviewed your clients? What did you learn? Karin has been a litigator at Debevoise & Plimpton; a law clerk to three...

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