My Holiday Mice

Last year, a good friend had a holiday party. And the highlight for me was a special confection:  little chocolate mice made from a maraschino cherry dipped in chocolate and attached to a Hershey’s Kiss. The cherry stem makes a tail and the point of the Kiss makes a mouse snout, with sliced almonds for ears. I decided to make these chocolate mice for holiday parties and gifts this year. So I called the maker—Sid—to find out if she could make me some. And Sid told me, “You can make these yourself. It’s easy.” And she told me just how she does it. Part of it involved going to different locations—like Costco—to get specific ingredients. As Sid described her method, I realized I could do it. And I could do it well. But was that going to be a good use of my holiday time? My time was going to be spent on special trips to get ingredients, mobilizing equipment, and going through some trial and error to get the technique right. So I asked Sid to make the mice for me and she agreed. The mice were beautifully made. And I ended up with some extra time for work and for holiday festivities. Getting help was the right decision. Would you like help with your legal work? A freelance attorney can do work that you could do yourself but don’t want to. A freelance attorney can help free your time for other work. Or marketing. Or pleasure. What can you spin off? Research? Writing? Depositions? Let us know. Karen graduated from William Mitchell College of Law in 1986, first in her class. She then clerked for three years: one year for a Minnesota Supreme Court justice, and two years for a federal district court judge. Later she became a partner at two firms… MFAN Bio | Email |...

Delegating on a Deadline: Opposing Motions to Dismiss

One of my last posts considered a defendant making a motion to dismiss; now let’s consider the plaintiff who is facing one. Even after the U.S. Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, the Rule 8 pleading standard favors plaintiffs. There are no “magic words” for pleading a claim. What’s required now is more facts, and the best time to get them is in pre-suit investigation. Gather your client’s records and obtain authorization to get third parties’ records. Request publicly-available information. Visit everyone’s websites. If a physical location or physical evidence is important, find it and learn about it. Locate surveillance tapes and mobile-phone videos. If there are gaps in your client’s knowledge, speak to others. Compile your findings into a well-organized file that will help you build a chronological narrative of the facts. As you draft the complaint, keep Rule 12(b)(6) in mind. The court will take your allegations as true, so include facts establishing each element of every claim. Research recent cases that have survived 12(b)(6) motions, or where dismissals have been reversed on appeal, and focus on cases with comparable facts and legal theories. Wherever courts find similar allegations state a claim (or don’t), compare those allegations to yours. Where a court describes allegations as “conclusory,” be sure you don’t rely exclusively on similar allegations. Keep your research in a file—it will save time if a motion is made. When the motion is made, look to the federal court’s local rules and preferences for your time to respond (Local Rule 7.1 in the District of Minnesota). Time will be short. Your investigation and research files will help you respond quickly, whether you’re writing the brief yourself or delegating it to an associate or freelance attorney. Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal...

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