Civil litigation can be a minefield. When I worked at a district court in Minnesota, I saw attorneys and parties make mistakes that were embarrassing, harmful, unethical, and potentially illegal. These mistakes lost cases and harmed reputations.

The purpose of this article is to help people learn from the mistakes of others. You should strive to identify potential issues and resolve them before they impact your case. The principles in this article apply to many types of litigation, including business, real estate, and construction disputes. They could also apply to many other types of civil cases in Minnesota courts, federal courts, and in other jurisdictions.

Here is a list of 100 common mistakes that people and their civil litigation attorneys make in Minnesota courts, along with applicable law for each issue. This should be a starting point for any research, as there may be further authority and cases on the issue. 

Plaintiff's Pleading Mistakes

1.  Failing to Establish Jurisdiction.

Generally, a Complaint only needs a short and plain statement showing that the plaintiff is entitled to relief. It is not necessary to include every last detail of your case. But you need to allege the basic facts, including those that provide a basis for a court's jurisdiction over your case. If the court lacks jurisdiction, it cannot decide the case. That's why it is important to explain in the Complaint where the events occurred, who the parties are, where they reside, where they have an office or a registered agent, and how the court location connects to the case. It is a mistake to omit these details. The defendant could use this problem to dismiss or transfer the case to a court that is more favorable to him or her.

Applicable Law: Minn. R. Civ. P. 12.02 (presenting defenses and objections); Minn. R. Civ. P. 12.08 (preservation of defenses); Minn. Stat. § 543.19 (long-arm statute); Minn. Stat. § 484.01, et seq. (MN court jurisdiction).

2.  Failing to Name the Proper Plaintiff.

It seems obvious, but the plaintiff must properly identify himself, herself, or itself in the Complaint. Failing to list the proper plaintiff can prevent the plaintiff from gaining relief, and can waste valuable time and resources. Usually, the plaintiff will be obvious to the attorney and client. However, problems can arise when contracts are unclear, real estate records have chain-of-title issues, corporate entities and subsidiaries are involved, and in other cases. The lesson is for the attorney to do the homework before commencing the lawsuit. This means reviewing any relevant contracts, corporate registrations, corporate formation documents, talking to the client and other pertinent witnesses, and doing legal research.

Applicable Law: Minn. R. Civ. P. 8 (general rules of pleading); Minn. R. Civ. P. 10 (form of pleadings).

3.  Failing to Name the Proper Defendant.

A plaintiff and her attorney must also name the proper defendant(s). This can be more challenging, as information about prospective defendants may not be fully available. As with naming an improper plaintiff, naming the wrong defendant can waste time, waste money, and result in dismissal. In some circumstances, a defendant that has been wrongly sued may be able to recover costs and even attorney's fees from the plaintiff. As stated above, the key is to do the homework before commencing the case. If you later learn information, you may be able to amend the complaint to add or dismiss defendants. But doing it right the first time can avoid this problem, especially in business and real estate litigation.

Applicable Law: Minn. R. Civ. P. 8 (general rules of pleading); Minn. R. Civ. P. 10 (form of pleadings); also see the Minnesota Secretary of State website for search of corporate registrations. 

4.  Failing to Plead Enough Facts.

Minnesota and federal courts generally require a plaintiff to allege basic facts that put the defendant on notice of the legal claims. This usually means a short and plain statement of the alleged facts. However, cases involving fraud, mistake, or other issues must be pled with “particularity”, meaning you must be very specific about the facts. The attorney must be aware of these types of claims. Often, it means reviewing some case law, jury instructions, and doing further fact investigation before commencing the case. If these claims are not pled with enough detail, the defendant can make a motion to dismiss for failure to state a claim. If successful, the plaintiff's claim will be lost.

Applicable Law: Minn. R. Civ. P. 8.01 (claims for relief); Minn. R. Civ. P. 12.02 (how to present defenses and objections).

5.  Omitting Prayers for Relief.

Prayers for relief are your ultimate legal requests. If you want an injunction, be specific. If you want damages, list them. Whatever your requests, make them clear and also ask for “any further relief the court deems just and equitable.” You may have some flexibility to work with in your requests as the case changes. But if you have a judge with a strict interpretation of the rules and interprets your Complaint narrowly, you may not be able to get the relief that you want. The key is to be specific about what you want to happen.

Applicable Law: Minn. R. Civ. P. 8 (general rules of pleading).

6.  Making False Allegations.

The attorney and client have a duty to reasonably investigate the facts before making allegations in a Complaint. The plaintiff cannot simply make any allegation he wants – the allegation must have some basis in fact. Often, the attorney will have the client sign the Complaint in order to verify that the allegations are based upon the knowledge of the client. If the plaintiff make false or reckless allegations, he and his attorney could each be sanctioned for bringing frivolous litigation. If the party is not completely sure about a fact or reasonably believes it to be true, the rules provide some flexibility. On uncertain matters, a party may state in the Complaint that the allegation is based “upon information and belief . . .” or “based upon reasonable investigation . . .” The bottom line is that the plaintiff must properly investigate the matter and be accurate in drafting the Complaint.

Applicable Law: Minn. R. Civ. P. 11 (sanctions); Minn. Stat. § 549.211 (sanctions in civil actions).

7.  Inaccurate Damages.

As stated above, the plaintiff must make requests for relief in the Complaint. This includes the damages claimed by the plaintiff. Failing to calculate or state your damages can be costly. You generally must state the specific amount of damages if less than $50,000. If greater than $50,000, you can simply say that you want “reasonable damages in an amount greater than $50,000.” (Note: the number is higher in federal court.) If your damage figure is ultimately lower than the $50,000 you included in the Complaint, it is not a problem. But if you list a number under $50,000 and your damages turn out to be much higher, you should consider amending the Complaint. If not, a strict judge might not award you the full damages you are owed.

Applicable Law: Minn. R. Civ. P. 8.01 (claims for relief).

8.  Failing to List Your Legal Theories.

You generally must list each and every legal claim you have against the defendant. This puts the defendant on notice of the claims to defend. The best course of action is to separately list each legal claim and, for each one, include the alleged facts that support the claim. The rules allow a plaintiff to allege claims that are different or inconsistent with each other. But failing to list your legal theories and support for them can be fatal. You may not be able to amend the Complaint at a later time, and you cannot generally start a later case with those additional claims. Do it right the first time by doing your homework and listing all available legal theories.

Applicable Law: Minn. R. Civ. P. 8 (general rules of pleading); Minn. R. Civ. P. 9 (pleading special matters); Minn. R. Civ. P. 10 (form of pleadings).

9.  Omitting Elements of Claims.

Each legal claim has certain requirements called “elements” of the claim. For example, a negligence claim requires the plaintiff to prove (1) duty, (2) breach, (3) causation, and (4) harm. If the evidence is lacking on any of the four elements, the plaintiff will lose the claim. Likewise, if the Complaint fails to allege facts that meet each of the elements, the defendant can make a motion to dismiss the case. Therefore, allege facts that touch on each element of each theory you bring. Your attorney may need to consult the civil jury instructions (MN CIVJIG) or case law to identify the elements. Failing to connect alleged facts to elements can lead to dismissal, so be careful.

Applicable Law: Minn. R. Civ. P. 8.01 (claims for relief); Minn. R. Civ. P. 12 (defenses and objections).

10.  Blowing the Statute of Limitations.

This is a deadly sin for a plaintiff and his lawyer. There is a deadline for almost every legal claim brought in civil court. The statutes in each jurisdiction specify the deadline for each type of case. The event that triggers the statute of limitations can vary. It could start when a plaintiff discovers a problem or injury, or when a plaintiff reasonably should have discovered an injury. Most statutes of limitation are between 2-6 years. However, some legal claims have rules that require quicker action (i.e., notifying a contractor of a construction defect). The bottom line is to take action or talk to an attorney as soon as you recognize an issue. Likewise, the attorney must do the homework and commence the lawsuit before the statute of limitations expires. Sometimes, disputes simmer up for months when attorneys are involved before a lawsuit is started. The attorney should identify the deadline at the beginning of the case. Missing the statute of limitations deadline means that the plaintiff will lose the case.

Applicable Law: Minn. R. Civ. P. 12 (defenses and objections); Minn. R. Civ. P. 56 (summary judgment); Chapter 541 of Minnesota Statutes.

11. Failing to File Within One Year of Commencing the Lawsuit.

Traditionally, a litigation attorney in Minnesota could serve a lawsuit and hold it in his or her “pocket” indefinitely without filing it in district court. This would give the parties time to negotiate, investigate the issues, and consider whether to start a lawsuit. However, Minnesota now has a one-year pocket-filing rule. Once you serve a civil lawsuit, you generally must file it in court within one year. If the deadline is looming, you could try to sign an agreement with the other party to extend the deadline for a specific period of time. If the deadline passes with no agreement, the plaintiff's case is automatically dismissed. Under very limited circumstances, the plaintiff can vacate the dismissal, but it is very limited. The lesson is to put the deadline on the schedule once you serve the Complaint and remind yourself to file it in Court.

Applicable Law: Minn. R. Civ. P. 5.04 (service and filing of pleadings).

12.  Failing to Amend a Pleading.

When you uncover information or documents that change your legal theories, you should amend the Complaint. If you don't, the court may not consider it and you probably cannot bring the additional claim in a later case. Amendment is usually a simple task and your opponent may simply agree to it. You usually get one free amendment before the defendant answers your Complaint. After that, you must get the defendant's consent or permission of the court. Amendments are “freely given when justice so requires.” As such, amendments are fairly easy to get. Failing to get the amendment can cost a plaintiff the case, so make sure the attorney does it.

Applicable Law: Minn. R. Civ. P. 15 (amended and supplemental pleadings).

Defendant's Pleading Mistakes

13.  Missing the Answer Deadline.

This is a deadly sin. The defendant generally must answer within 21 days, unless a different law or court rule applies. If the defendant fails to answer, the plaintiff can get a default judgment and win the case. A defendant has some ability to vacate a default judgment that is entered, but must show a reasonable excuse. If you have a looming deadline, seek an extension from the plaintiff. If you blow the deadline, you may lose the case. When in doubt, answer as soon as you can. If you hire an attorney, make sure he or she knows when you were served.

Applicable Law: Minn. R. Civ. P. 12.01 (when to present defenses); Minn. R. Civ. P. 55 (default judgment); Minn. R. Civ. P. 60.02 (relief from judgment).

14.  Failing to Plead Affirmative Defenses.

In many cases, the defendant relies on a “general” defense to the plaintiff's claim. For example, the defendant says that he didn't breach the contract. In such a case, the defendant doesn't generally need to plead anything special. He can simply deny the allegations and make the plaintiff prove the claim. However, some cases involve special defenses called “affirmative defenses.” These are fairly common and most cases involve an affirmative defense of some type. For example, a breach-of-contract defendant might argue that there was no valid contract (lack of consideration) or that the plaintiff waived any right to claim damages (waiver or estoppel). These are affirmative defenses that a defendant must include in the Answer. The defendant has the burden of proof on affirmative defenses, but if proved the defendant can win the case. The attorney must look to statutes, rules, and cases to understand what types of defenses are “affirmative defenses.” You can usually waive the irrelevant ones later in the case, so you should err on the side of asserting too many affirmative defenses in your Answer.

Applicable Law: Minn. R. Civ. P. 8.03 (affirmative defenses).

15.  Omitting Counterclaims.

A defendant generally must bring all counterclaims he or she has against the plaintiff (or “cross-claims” against other parties). The key is to understand whether the potential counterclaim or cross-claim arose from the same transaction or set of facts. If so, this is a “mandatory” counterclaim that the defendant must bring in the case. If you omit a mandatory counterclaim, then you will probably lose it and be unable to assert it in a later case. A “permissive” counterclaim is based on facts unrelated to the plaintiff's transaction or set of facts. You can generally bring a permissive counterclaim in the same case, or you could bring it in a separate case. The key is to analyze the facts alleged by the plaintiff and see if you have any counterclaims. Usually, it makes sense to bring any counterclaims in the same case for efficiency and negotiation purposes.

Applicable Law: Minn. R. Civ. P. 13 (counterclaims and cross-claims).

16.  Omitting Third-Party Claims.

A “third-party” claim is when the defendant brings another party into the lawsuit. The defendant alleges that the third party caused damage to the plaintiff and should reimburse the defendant (if the defendant has to pay the plaintiff). This often arises when a defendant-contractor adds a third-party claim against a subcontractor. Or, a defendant-agent may sue her principal on a third-party claim. As with mandatory counterclaims that relate to the same transaction or set of facts, a third-party claim must be brought by the defendant. If not, that party may lose the claim.

Applicable Law: Minn. R. Civ. P. 14 (third-party practice).

17.  Making Frivolous Denials to the Plaintiff's Complaint.

The defendant must answer each of the plaintiff's allegations with an admission, denial, qualification, or statement that he or she has insufficient information to answer. A defendant cannot generally make a “general denial” of the plaintiff's allegations. The defendant must instead go through the allegations carefully and explain what parts are being admitted or denied. Also, the defendant must have some factual basis and perform a reasonable investigation to support any denials. Defendants are generally given latitude to deny allegations if the information is unknown or still needs to be developed. But, denying every allegation that is objectively true can be problematic for defendants and their attorney.

Applicable Law: Minn. R. Civ. P. 11 (sanctions); Minn. R. Civ. P. 8.02 (defenses; form of denials).

18.  Self-Represented Corporations.

In Minnesota (and other jurisdictions), a corporate entity must be represented by a licensed attorney in district court. Resourceful small business owners and DIY-ers sometimes attempt to draft their own Complaint or Answer. These pleadings will likely be invalid and lead to either dismissal (in the case of a plaintiff) or a default judgment (in the case of a defendant). Both are bad outcomes. Even if a corporate entity could sign their own pleadings, it's not a great idea because they may unknowingly make mistakes that could cost them the case. The key is to hire a commercial litigation attorney in these cases.

Applicable Law: 301 Clifton Place L.L.C. v. 301 Clifton Place Condo. Ass'n, 783 N.W.2d 551 (Minn. Ct. App. 2010); Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753 (Minn. 1992).

Service Mistakes

19.  Failing to Serve the Corporate Officer or Agent.

Minnesota statutes have specific rules about how to serve a corporate entity. You cannot serve McDonald's by serving the cashier or Amazon by serving the delivery person. Serving a random employee is not enough. You generally must serve the designated service agent or a corporate officer. There are different rules for different types of entities (partnerships, LLCs, corporations, etc). How do you know who to serve at a company? Look to its public registration. The corporate entity should be listing an officer or service agent with the Minnesota Secretary of State, which has a searchable website with registration data. If no person is listed or no person is found, the Secretary of State can serve the corporate entity for you in some circumstances. The takeaway is that if you don't serve the right person, you can risk dismissal of the claim.

Applicable Law: Minn. R. Civ. P. 4.03 (personal service); Minn. Stat. § 5.25 (service of process); also see, for example, Minn. Stat. § 322C.0116 (service of process on LLCs).

20.  Making Insufficient Efforts to Serve a Party.

Generally, a plaintiff must make a couple attempts to personally serve the defendant. If you can't serve the defendant, then any court filing may be dismissed. Check if the defendant's attorney will simply accept service on behalf of the defendant. The attorney will sometimes do this to avoid having the plaintiff's service costs tacked onto any judgment in the case. But an attorney does not have to accept service and you cannot force an attorney to accept service. If the defendant is avoiding service, then you may be able to publish the summons in a newspaper, as discussed in the next paragraph. The plaintiff must establish a basis to publish notice by making reasonable efforts to locate the defendant and then making enough attempts at personal service.

Applicable Law: Minn. R. Civ. P. 4 (general service rules); Minn. R. Civ. P. 4.04 (service by publication).

21.  Improper Publication of the Summons.

If the defendant cannot be found or is avoiding service, then you may have grounds to publish the summons in a local newspaper. But follow Minnesota Rule of Civil Procedure 4.04 carefully. If you don't publish in a big enough paper in the right location for the enough weeks, service is invalid. The rules generally require the plaintiff to establish the basis for published service and then publish the summons in the local newspaper for at least 3 weeks. The rationale is that the defendant will see it, or his family members or friends will see it and notify him. Note that the plaintiff does not have to prove that the defendant saw the notice in the newspaper, only that it was published. The newspaper generally gives an Affidavit of Publication to the plaintiff, who then files it with the court. If the plaintiff does not follow the rules, service is invalid and the case will be dismissed. So make sure to do it right.

Applicable Law: Minn. R. Civ. P. 4.04 (service by publication).

22.  Serving Papers on Wrong Person.

Your process server should make sure the defendant is served. Usually, they confirm the defendant's name before handing them papers. Sometimes, the server can give papers to an adult residing at the defendant's home. Leaving papers at the doorstep, with a small child, or a person that does not reside at the home is invalid. Make sure you get a trustworthy process server and do it right. The internet and search services make it easier to locate the defendant's residence, so make sure you check available resources and get updated information.

Applicable Law: Minn. R. Civ. P. 4.03 (personal service).

23.  Failure to Prove Service.

If there is a question about service, the plaintiff must prove it. Usually, a plaintiff files an affidavit of service signed under oath of perjury. In rare cases, the process server must testify before a judge to prove that service was proper. If there is a hearing, you want a reliable process server that does things right. It can be unfortunate if the plaintiff learns of any service mistakes at a court hearing or trial. Since the attorney cannot generally be a witness at the hearing or trial, it's better for someone other than the attorney to have served the documents in the case.

Applicable Law: Minn. R. Civ. P. 4 (general service rules); Minn. R. Civ. P. 5 (service and filing of pleadings).

Discovery Mistakes

24.  Failure to Respond to Discovery.

You have a duty to respond to reasonable discovery requests served by the opposing party. If you do not respond within 30 days, you may lose any right to object. Further, you may be sanctioned, have your evidence precluded, or the court may take the opposing party's evidence to be true. This may weaken or lose your case. If the deadline is looming, ask the opposing party or the court for an extension. If the case is large or complicated, then consider getting a court order that extends the deadline beyond 30 days. Discovery problems are prevalent, and judges do not like dealing with them. Do your best and get the discovery responses in by the deadline.

Applicable Law: Minn. R. Civ. P. 26 (general discovery rule and disclosure); Minn. R. Civ. P. 33 (interrogatories); Minn. R. Civ. P. 34 (production of documents); Minn. R. Civ. P. 37 (discovery sanctions).

25.  Failure to Respond to Requests for Admissions.

This discovery problem is listed separately to highlight the importance. Requests for Admissions require a party to admit, deny, or qualify any admissions that are being sought. They are often used to validate documents, but are also used for substantive purposes. If you fail to respond within 30 days, the allegation is deemed admitted. Credit card companies are notorious for using these against consumers, knowing that the consumer has no attorney and will not likely respond. The companies then file the admitted statements in support of a summary judgment motion and usually win the case. This can be a fatal mistake if you or your attorney blows the deadline.

Applicable Law: Minn. R. Civ. P. 36 (requests for admissions); Minn. R. Civ. P. 37 (discovery sanctions).

26.  Insufficient Discovery Requests.

You want to find the “smoking gun” evidence, if it exists. At the very least, you want to know what evidence your opponent will rely upon in the case. Discovery rules allow you to ask for written responses, documents, and other evidence from the opposing party. If your attorney fails to request information or her requests are too narrow, the opposing party might not have to give up the key information. This mistake can weaken a client's case and bargaining position. It pays to carefully assess the information you need in the case and to carefully draft the discovery requests.

Applicable Law: Minn. R. Civ. P. 26-37 (general discovery rules).

27.  Insufficient Discovery Responses.

If a party fails to respond sufficiently to discovery, the judge can sanction the party, preclude evidence, or take the opponent's evidence to be true. This issue is common in civil litigation, and offenders face consequences infrequently. But some judges have no patience for lazy discovery responses. Do not anger the judge. Make a good faith effort to respond to the opposing party and update those responses as new information becomes available. Discovery can be time-consuming and expensive. If you believe that your opponent will find the “smoking gun” in your case or you lack the resources to pay an attorney to conduct discovery, you should consider settling before the case moves into discovery.

Applicable Law: Minn. R. Civ. P. 33.01 (interrogatory responses); Minn. R. Civ. P. 34.02 (responses to requests for documents); Minn. R. Civ. P. 37 (discovery sanctions).

28.  Spoliation and Destruction of Evidence.

Destroying evidence is a bad idea, whether it's done intentionally or accidentally. Parties are expected to put a “litigation hold” on evidence when there is a potential for litigation. If you are in control of evidence and it is destroyed, the judge may issue a “spoliation” sanction against you. This may mean paying your opponent's attorney's fees, the judge precluding your evidence, the judge striking your claims or defenses, or the judge granting your opponent her requested relief. An attorney could be sanctioned and face ethical discipline. It is easier to hang onto documents or emails than it is to preserve physical evidence. If you have a hole in the room, you need to fix it. Make reasonable efforts to document the issue with photographs or video. Also notify the opposing party in advance of fixing the issue so that they can properly evaluate it. You could lose your case with a spoliation sanction, so hang onto evidence if it is requested later in the case.

Applicable Law: Minn. R. Civ. P. 37 (discovery sanctions); Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011) (spoliation sanctions).

29.  Abuse of Subpoenas.

Discovery rules allow parties to subpoena outside persons for documents or depositions. However, you must provide notice of the subpoena to other parties, allow them to appear for any oral deposition, and give them documents that are generated through the subpoena. Trying to use “secret” subpoenas is a sanctionable act and could lead to discipline for the attorney. It generally does not help a client's case or put you in the good graces of the court. Practically speaking, it may be best to first seek the information from other parties in the case. If you are not satisfied, then go to the source and subpoena the information. If you use subpoenas, make sure you closely follow the rules for any timelines, witness or processing fees, and any notices.

Applicable Law: Minn. R. Civ. P. 45 (subpoena rules); Minn. R. Civ. P. 37 (discovery sanctions).

30.  Deposition Misconduct.

This issue could be discussed in a full article. Issues arise from the client being deposed, the attorney defending the deposition, and the attorney taking it. The witness should answer truthfully and to the best of her knowledge. The defending attorney can object, but generally cannot tell the client not to answer. The attorney taking the deposition must not ask for privileged information or try to embarrass or intimidate the witness. Of course, fighting the opposing attorney at the deposition doesn't help either. Any of these problems can lead to financial and evidence-related sanctions for the party or attorney.

Applicable Law: Minn. R. Civ. P. 30 (oral depositions); Minn. R. Civ. P. 37 (discovery sanctions); Preparing Yourself & the Witness for Deposition and Trial Testimony; see also video of lawyers arguing at deposition.

31.  Changing the Deposition Transcript.

At the end of a deposition, the court reporter will ask if the witness wants to attest to the testimony then or to “read and sign” the written transcript. Most witnesses want to “read and sign” for accuracy purposes. It is rare for the court reporter to make any significant mistakes in transcribing the testimony. A common problem is when the witness lies or was mistaken about an important issue. The witness (and attorney) will likely need to note any clarifications or changes in the written transcript before signing under oath of perjury. Making a change will draw scrutiny from the attorney taking the deposition. That attorney will have the ability to recall the deposition to ask follow-up questions about the change. If the witness fails to change a mistaken or dishonest statement, the witness could face perjury issues and the attorney could face an ethics claim. If the change isn't done right, it could be self-impeaching for the witness at a future trial (a jury can be shown the change). The lesson is for the witness to be as truthful and accurate as possible when answering questions.

Applicable Law: Minn. R. Civ. P. 30.05 (transcript review by witness); Minn. R. Civ. P. 37 (discovery sanctions).

32.  Failing to Use or Object to Video Depositions.

Not all depositions involve video recording. It may cost more to have it videotaped, but video can be powerful. A jury can potentially see parts of a video deposition, and they will see things that do not show up in a written transcript. They can see the witness's facial expressions, pauses between answers, and emotion. If the witness is rude, angry, or inarticulate, he or she may come off poorly in a video deposition. The opposing attorney should push for video of a hostile witness, while that person's attorney should push against it. If there are conflicting stories before a judge or jury, credibility is important. A video deposition can tip the scales on a credibility issue, so it pays to be aware of the witness dynamics before the deposition.

Applicable Law: Minn. R. Civ. P. 30.02(c) (additional recording method); Minn. R. Civ. P. 32.05 (use of video depositions).

33.  Talking During Deposition Breaks.

Generally, witnesses should not speak to the lawyer or other people during breaks in a deposition. If a witness does this, the lawyer taking the deposition can ask about any conversations the witness had during the break. This can be harmful to the attorney-client privilege, which can lead to disclosure of unfavorable information or the attorney's advice. When in doubt, the person being deposed should keep conversation to a minimum during deposition breaks to avoid privilege and disclosure issues.

Applicable Law: Minn. R. Civ. P. 30 (oral depositions); also see Conversations with Clients During Deposition Breaks: Proceed with Caution. 

Scheduling Mistakes

34.  Failing to Participate in Scheduling.

There's no better way to control the litigation schedule than by participating in it with the opposing attorney or the judge. Often, the attorneys can come up with a schedule and file it for the judge to sign. This gives them control over the case. Likewise, if the judge holds a scheduling call or hearing, the attorney should be prepared to participate and propose deadlines. This is important because some clients need quick relief at a low cost. In such a case, the attorney should seek an expedited schedule with a shortened discovery period and limited depositions. On the other hand, a big corporate defendant may want to extend the case and drive up the costs. The defense attorney would push for an extended schedule with lots of discovery. Don't underestimate the impact this can have on the case. It is a mistake for a party or attorney to ignore scheduling issues.

Applicable Law: Minn. R. Civ. P. 16 (pretrial scheduling); Minn. R. Gen. Pract. 111 (scheduling of civil cases).

35.  Failing to Track Deadlines.

When the judge issues a Scheduling Order with case deadlines, follow it. If you're late with amending your pleading, making a summary judgment motion, disclosing expert opinions, or similar deadlines, the judge may not grant an extension. Without the extension, you may not be able to use evidence at trial and could lose the case. If a deadline is looming, ask the opposing party and court for an extension. After-the-fact extensions are less likely to be granted. The attorney must keep track of deadlines and communicate it to the client.

Applicable Law: Minn. R. Gen. Pract. 111.03 (scheduling order); Minn. R. Prof. Cond. 1.1 (competence); Minn. R. Prof. Cond. 1.3 (diligence).

36.  Late Expert Disclosures.

If you have a case expert (doctor, appraiser, construction inspector, etc.), you will have to disclose their opinions under civil procedure rules and the judge's scheduling order. If you fail to disclose your expert opinion, the judge could exclude it at trial. Without the expert opinion, you could lose the case. It is the attorney's job to keep the expert on track and disclose opinions to the opposing party by the deadlines.

Applicable Law: Minn. R. Civ. P. 26.01(b) (initial disclosures); Minn. R. Civ. P. 26.02(e) (trial preparation: experts); Minn. R. Civ. P. 26.05 (supplementing responses); Minn. R. Civ. P. 35.04 (disclosures from medical experts).

37.  Missing the Summary Judgment Deadline.

Carefully read your judge's Scheduling Order. The judge may set a deadline for filing a summary judgment motion, and a deadline for having a hearing the motion. These are very different things. If the deadline is for filing the motion, you simply file by that date and then get a hearing date. If the deadline is for holding a hearing on a motion, then your motion must be filed a month before that date. Mixing up these different deadlines can forfeit your chance for summary judgment. Without the motion, you will probably have to spend the time and money to go to trial.

Applicable Law: Minn. R. Civ. P. 16 (pretrial scheduling); Minn. R. Civ. P. 56.02 (time to file summary judgment motion).

38.  Failing to Disclose Trial Evidence.

This is a classic problem. The attorney brings a surprise witness or “smoking gun” document to trial and the judge excludes it. The attorney should have disclosed it in Rule 26 disclosures, discovery, and in pretrial submissions. There is a small chance the judge could still allow it in, but usually it is excluded. Without the evidence, the client could lose the case. While you may not want the opposing party to discover key evidence that you and your client hold, you likely have no choice but to comply with the rules and disclose it. If it's truly embarrassing or harmful, then the client needs to consider settling the case and getting a confidentiality clause in the settlement agreement.

Applicable Law: Minn. R. Civ. P. 26 (initial disclosures); Minn. R. Civ. P. 26-37 (discovery disclosures); Minn. R. Gen. Pract. 111.03 (scheduling order).

Motion Mistakes

39.  Failing to Use Affidavits to Support a Motion.

Most motions require a factual basis for the judge to consider. It's not only good practice, but court rules generally require an affidavit for motions. Your attorney's legal brief is not source of facts – it's a legal argument. You must give the judge documents and testimony in the form of an affidavit. Sometimes, the attorney can attach documents to his or her own affidavit. But it's better to draft an affidavit for the client to sign and to attach documents to it. The judge probably won't let you supplement the record after the hearing without a good excuse. Without the affidavit, your motion will likely be denied. Establishing a factual basis will maximize your chances of winning the motion.

Applicable Law: Minn. R. Gen. Pract. 115.03(a)(3) (dispositive motions); Minn. R. Gen. Pract. 115.04(a)(3) (regular motions); Minn. R. Civ. P. 56.03 (summary judgment motions); Minn. R. Civ. P. 55 (default motions or requests).

40.  Failing to Preserve Motion Arguments for Appeal.

If the judge makes an error in deciding a motion, you may be able to appeal the decision. The appeals court will look at the arguments you made. You generally cannot make new arguments on appeal. Therefore, you should include all available arguments when you argue a motion to a district court. Failing to do so may limit your options in the case and on appeal.

Applicable Law: Minn. R. Evid. 103 (objecting to evidence); Minn. R. Civ. App. P. 103.04 (scope of review); Doe 175 by Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d 38 (Minn. Ct. App. 2014) (appellate court will not review issues that are not presented to or decided by district court).

41.  Failing to Respond by Motion Deadline.

Motions often have a short deadline for responses (often 14 days for "dispositive motions" but only 7 days for regular motions). If the attorney does not submit a response, the judge may simply adopt the other party's position. At the very least, the attorney should consider asking the judge for an extension to submit a document or continue the hearing to a later date. The opposing party may object, but the attorney must attempt the request in order to be heard on the issue. It's not uncommon for judges to consider late filings, if there is no prejudice to the opposing party. But you will have to do some explaining for the judge to consider it.

Applicable Law: Minn. R. Gen. Pract. 115.03(b) (dispositive motions); Minn. R. Gen. Pract. 115.04(b) (regular motions); Minn. R. Gen. Pract. 115.06 (court may deem motion unopposed).

42.  Failing to Respond to Counterarguments.

It is important to address counterarguments and weak points in your argument. If you do not argue these points, the judge may assume you have no defense to them. Motions can be won or lost on small legal points. If you can find some case or statute to help with a counterargument, it can help immensely. Often, it's best to confront these challenges head-on and with confidence. If you argue first, “take the wind out of” your opponent's argument by explaining why your opponent's argument is not persuasive.

43.  Bad or Inconsistent Messaging.

In litigation, you must present a consistent, persuasive narrative to the decision-maker and opposing party. When you can wrap your research into a cohesive story for the judge, the judge is much more likely to adopt your position. Judges get lots of filings and read a lot of documents. The judge may have a judicial clerk to review the filings and check your research. I can tell you from experience that a simple narrative goes a long way with judges, provided you have some legal support for your position. Make it memorable and make sure it's appropriate for your case.

44.  Screwing Up Default Judgments.

Default judgments are straight-forward requests that an attorney should get right. Sometimes, you don't even have to provide notice to the other party or hold a hearing. The mistake happens when the attorney fails to “prove up” the damage number or other relief being requested. The client's affidavit in support of the default request can contain details on how the judgment total was calculated. If not, the attorney should bring the client or other witness to the default hearing. The judge may swear the witness in and the attorney will “prove up” the default judgment by asking basic questions of the witness. The judge can then ask any questions and be satisfied on the basis for the judgment. It's a fairly simple process. However, if the attorney fails to supply a factual basis for the default judgment, the judge may deny it. The client will then have to spend more money to advance the case and it may allow the opposing party to re-enter the case.

Applicable Law: Minn. R. Civ. P. 55 (default judgment); Minn. R. Gen. Pract. 117 (default hearings).

45.  Failing to Vacate a Default Judgment.

Most of the time, a default judgment is the end of the road for a defendant. But if he or she wants to “vacate” that judgment, there is a fair chance to do it. The defendant must generally show four things to the judge: (a) a reasonable defense, (b) a reasonable excuse for failing to answer, (c) due diligence in responding to the default judgment, and (d) no substantial prejudice to the plaintiff. A fair amount of defendants can make this showing. Therefore, it can be a mistake for an attorney or party to let a weak “default judgment” stand, especially if there is a lot at stake. It doesn't ensure the defendant will win the case, but getting back in the game can at least give the defendant a chance to defend herself.

Applicable Law: Minn. R. Civ. P. 60.02; Finden v. Klass, 268 Minn. 268, 128 N.W.2d 748 (1964) (describing the factors).

46.  Mishandling Restraining Orders and Injunctions.

A restraining order or injunction can be valuable in forcing an opposing party to act or refrain from acting (i.e., preventing an ex-employee from contacting customers). But the attorney must make a significant showing to the judge. The attorney must file a detailed affidavit and legal brief. An injunction or restraining order is considered an “extraordinary” remedy designed only for “rare” cases. If money damages can remedy the plaintiff's issue, the injunction will be denied. Since they are hard to get, the attorney must be diligent. If not, it can be a waste of the client's money and impact the outcome of the case. Likewise, it is a mistake by the defending attorney to make a lazy defense, since the injunction could be extended indefinitely. Therefore, the parties should treat it as importantly as a trial, not simply a motion. Lastly, if the court orders a TRO or injunction, the plaintiff must make sure to post the bond required by the court (generally over $2,000). Without posting the bond, the injunction will not be effective.

Applicable Law: Minn. R. Civ. P. 65 (TRO and injunctions); Minn. R. Gen. Pract. 135 (bonds).

47.  Failing to Give Safe Harbor on Motion for Sanctions.

A Rule 11 motion asks to sanction the opposing party for a frivolous pleading or action in the case. Rule 11 requires a 21-day “safe harbor” period to allow the opposing party to withdraw any frivolous pleading. If the opposing party fails to respond after 21 days, then you can file the Rule 11 motion with the court. Many lawyers fail to give the 21-day safe harbor period, leaving the court no choice but to deny the motion. Rule 11 motions can be valuable because the judge can award all reasonable attorney's fees and costs stemming from the frivolous or unsupported pleading. These could trace back to the beginning of the case, which can be huge. But failure to do it right can be a lost opportunity.

Applicable Law: Minn. R. Civ. P. 11 (sanctions).

48.  Baseless Attempts to Remove the Judge.

While parties get a “free strike” to remove a judge at the very start of a case, after that they must show that the judge was biased or committed misconduct. This can be difficult to show. If you don't win the motion, the judge you accused of bias will now be deciding your case. I am not saying that judges punish a party that alleges bias, but it certainly doesn't help your cause. Plus, it costs time and money to bring such a motion. Unless you have a “slam dunk” case for removing a judge (i.e., judge owes a gambling debt to the opposing party), it can be a mistake to bring the motion.

Applicable Law: Minn. R. Civ. P. 63 (disqualification of judge).

49.  Failing to Update Legal Research.

Legislatures frequently add or change laws. Appeals courts are constantly deciding cases in published opinions. Judges and attorneys must stay on top of these opinions and law changes. If they are operating on old information, their opinion will be inaccurate. Technology makes it easier to stay updated on these changes, as weekly opinions are published on court websites and legislatures issue reports on statutory changes. Attorneys must update their research during the case, as many civil lawsuits take 6-12+ months to resolve. A legal opinion at the start of the case may change by the end of the case. I saw these problems when working at a court, and the mistakes can be costly. Attorneys should update their research as the case progresses in order to protect their client's interests.

Helpful Links: Minnesota Revisor website (notice of new laws); Minnesota Courts website (new appellate opinions published Mondays and Wednesdays).

50.  Failing to Recognize Fact Issues That Prevent Summary Judgment.

A party that files a summary judgment motion wants to win the case without the need for a trial. The party must show the court that the law is in their favor and that there is no “genuine issue as to any material fact.” Often, there is conflicting evidence over an important fact. If so, the court must deny the summary judgment motion. You don't want to waste your time and money on a motion that will be denied. Recognize the factual disputes and expect them to proceed to trial if there is no settlement.

Applicable Law: Minn. R. Civ. P. 56 (summary judgment); Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (summary judgment is “inappropriate when reasonable persons might draw different conclusions from the evidence presented.”).

Negotiation and Mediation Mistakes

51.  Failing to Discuss Settlement.

This problem won't impact the merits of your case, but it can be a losing strategy that wastes time and money. Most civil cases end in a settlement. Perhaps only 3% of cases reach a trial. This is because litigation is expensive and uncertain. When you discuss settlement, you learn about your opponent's case and the interests at stake. More importantly, you give yourself a chance to end the litigation without having to pay further attorney's fees or face the stress of an ongoing case. Your judge may also require you to discuss settlement options before any motion hearings and before trial, so it may actually be required in your case. The point is to consider a settlement discussion early in the case, if possible.

52.  Failing to Make Conditional Offers.

This problem arises when a careless party or attorney makes a simple offer, saying “the defendant will pay you $20,000 to settle the case.” This may seem clear, but it can go wrong in several ways. There is no deadline for accepting the offer, no requirement that a release and court dismissal be signed, no detail on structure or form of the payment, no other action required by the plaintiff, no statement of what issues are being resolved, and no consequence if the plaintiff fails to abide by the agreement. It would be better to say “the defendant will pay you $20,000 to settle this dispute over Contract A, conditioned on … a) ___, (b) ___, and (c) _____.” Don't leave yourself exposed on an offer. Think through the ways the opposing party could exploit it and write the protections into the offer.

53.  Paying the Plaintiff Without Getting a Release.

A Release discharges the defendant from any further responsibility or obligation for an issue. Usually, the defendant sends a check to the plaintiff to settle the case and, in return, asks the plaintiff to sign a Release. If there is a lack of trust and the parties try to “game” the other, the timing becomes important. If the plaintiff signs the Release before getting paid and has no signed offer sheet protecting himself, the defendant may run off and never make payment. On the flip side, if the defendant sends the check without requiring a release, he technically could still be sued for the obligation. The best course of action is for the parties to sign a Settlement Agreement that (a) describes the procedure for payment and release, and (b) that money will be exchanged for a Release, regardless of the timing.

54.  Failing to Make Reasonable Offers.

Usually, the point of making an offer is to resolve the case on favorable terms. This can avoid costly and uncertain litigation. While you're telling the opposing party the terms you want, you also want the offer to be accepted. If you aren't making reasonable or serious offers, the other party won't accept the offer. As such, the attorney may be wasting time and client resources. Unreasonable offers may not get a counteroffer or any response, and they may reduce your credibility. There is a fine line between pushing for a favorable deal and pushing for a deal that the other party will never accept. While nobody has to settle a case, give settlement talks a chance to succeed by making reasonable offers.

55.  Untruthful Negotiations.

A lawyer's duty of truthfulness extends to negotiations with the opposing party and lawyer. There is no problem with an attorney saying “we have a great case and we think we'll win at trial.” This is called “puffery”, and it is an acceptable means of posturing by the attorney. A lawyer has a duty to advocate for the client, and this posturing can further the client's goals. However, there is a problem if the attorney falsely characterizes evidence, such as the availability of insurance or the existence of witnesses. This has added importance when the attorney is characterizing evidence that he or she has not yet released to the opposing party, who is relying on the lawyer's characterization of it. The lawyer must assume that these dishonest statements could reach the judge deciding your case. A lawyer and client that lack credibility in the judge's eyes are not likely to succeed in court, and the issue may lead to an ethics issue for the attorney.

Applicable Law: Minn. R. Prof. Cond. 4.1 (truthfulness in statements to others).

56.  Lack of Settlement Authority at Mediation.

A judge cannot force parties to settle a case. But the judge can require them to attend mediation and participate in good faith. One requirement is that a party attending mediation have authority to settle the case. In business litigation, this generally means that the business owner or agent show up in person and be able to sign a settlement agreement, if mediation leads to an agreement. It may be acceptable for a person with settlement authority to appear by phone. However, without a person that has settlement authority, all mediation participants will waste their time talking about hypothetical offers. The judge wants the case to settle and can set conditions that will maximize the chance of a settlement. If you don't follow the judge's order and bring a person with settlement authority, the judge can hold you in contempt of court.

Applicable Law: Minn. R. Prof. Cond. 4.1 (truthfulness in statements to others); Minn. R. Gen. Pract. 114.07 (attendance at ADR proceedings); also see your judge's Scheduling Order.

57.  Making Offers Without Client Approval.

The client is the decision-maker in the case. The lawyer must consult with the client before making or accepting any offers. The client can sometimes give the lawyer advance instructions. Problems arise when the lawyer acts without specific authority from the client. There are some examples where personal injury attorneys have settled cases without their client's knowledge in order to expedite payment to themselves. This is bad and leads to ethics charges against the attorney. The best practice is for the client and lawyer to carefully walk through every offer, counteroffer, and acceptance. It is helpful for the attorney to make a written record of this communication with the client. It can also be helpful for the lawyer to send the client a draft of the written offer or counteroffer before sending it to the opposing party. If this is not done right, it will impact the client and the lawyer.

Applicable Law: Minn. R. Prof. Cond. 1.4 (communication).

Civil Trial Mistakes

58.  Failing to Subpoena Witnesses.

The attorney or party may assume that the witness will voluntarily show up for trial and testify. What happens if the witness gets cold feet and doesn't show up? The attorney will ask for a continuance, but the judge may deny a continuance because the witness was not subpoenaed. Without the witness, the client could lose the case. So even if the witness seems friendly, it's best to give the witness a subpoena and the required witness fee. The attorney can file the subpoena and, if the witness does not show up, the judge can order the sheriff to locate the person and bring them into court for testimony. While there is no absolute guarantee that the witness will be compelled into court, a subpoena greatly increases the chances of having an important witness testify at trial.

Applicable Law: Minn. R. Civ. P. 45 (general subpoena rules).

59.  Overlooking Issues with Your Evidence.

You want your best evidence to be considered by the judge or jury, and your opponent's best evidence to be excluded. To do that, the lawyer needs to prepare objections and arguments for trial. The judge usually requires any big evidentiary issues to be briefed with any motions in limine before trial. It is a big mistake for the lawyer to assume that his best evidence will be accepted without objection from the other side. The lawyer needs to prepare argument in case it comes up at trial, and should look to the Rules of Evidence and any precedent from case law.

Applicable Law: The Minnesota Rules of Evidence.

60.  Failing to Select the Right Type of Trial.

A jury is not available in every civil case. Where a jury trial is available, the attorney and client will have to decide whether to request one. A “bench trial” decided by a judge is much different than a jury trial. The judge may consider a wider scope of evidence than a jury can consider. The judge may be familiar with the background of the case and the parties. If the law is on your side, you generally will want a bench trial. If the law is not on your side but you have a sympathetic case, you may want a jury trial. The attorney should be developing the case with either a judge or jury in mind. If the attorney selects the wrong decision-maker or selects it too late in the case, it may cost the client. If the other party has a right to a jury trial and selects a jury, then you have no right to object. Overall, the best course of action is to decide early in the case whether the decision-maker should be a judge or jury.

Applicable Law: Minn. R. Civ. P. 38 (right of jury trial); Minn. R. Civ. P. 39 (trial by jury or by the court).

61.  Failing to Use “Voir Dire” Effectively.

Voir dire is the fancy name for jury selection. In federal court, the judges ask most of the questions to potential jurors. Minnesota courts give attorneys more latitude to question the jurors about their backgrounds and if they are fair-minded. Since these people may decide the case, you want to appear likeable but also learn key information about them. The court usually gives the attorneys a juror information sheet prior to trial. It would be a mistake for the attorney not to review it or do a basic internet search on the jurors. Attorneys cannot contact jurors. But learning basic background information through research and voir dire can lead to better decisions on jury selection. An unfavorable jury can be tough to overcome, so the attorney needs to make informed jury decisions.

Applicable Law: Minn. R. Civ. P. 47 (jurors).

62.  Failing to Practice Your Opening Statement.

First impressions are critical. Some attorneys are nervous and disorganized in their opening statements to the jury. Some older attorneys think they can simply “wing it”. This can be risky. The attorney should organize and practice the opening statement before trial. Reading a “canned” statement will not impress the jury. They want to hear a story. Make it compelling. If the attorney cannot give an effective opening statement, he or she could harm the client's case.

Applicable Law: Minn. R. Civ. P. 39.04 (counsel opening statement to jury).

63.  Forgetting to Offer Exhibits.

A common but critical mistake made by litigation attorneys is failing to “offer” an exhibit. The attorney will show a document to a witness and ask questions about it. The judge or jury will not consider that document as evidence unless the attorney says “Judge, I offer Exhibit A into evidence.” The judge will ask if the opposing party objects. If there is no objection, the court will “receive it.” This seems straightforward, but sometimes there can be problems. I have seen trials where attorneys reference an exhibit in closing argument or post-trial briefs, only to realize that he or she failed to properly offer it. Listing the exhibit on a pre-trial exhibit list is not enough. The attorney has to offer it at trial. The judge or court reporter will sometimes clarify if the attorney wants to offer the exhibit. This can be helpful for the attorney. But forgetting to offer an exhibit is a big problem that will likely harm a client's case, so the attorney and client should stay organized to avoid this mistake.

Applicable Law: Minn. R. Evid. 103 (rulings on evidence).

64.  Failing to Customize Jury Instructions.

In civil jury trials, the jury instructions are vital. At the end of the case, the judge will read instructions to the jury about the law and the elements of the parties' claims. Then the jury will begin deliberations. Unlike criminal cases where the instructions are standard, civil jury instructions can be customized. The attorneys can, and should, write custom instructions. The judge usually sets a pre-trial deadline for custom jury instructions and briefing on instructions. An attorney that fails to request a custom instruction or research cases to support it is making a mistake. Custom instructions are vital to success in civil jury trials, and the judge may even expect them. Don't miss the opportunity to shape the instructions in a way that is favorable to your client.

Applicable Law: Minn. R. Civ. P. 51 (instructions to jury); Kohoutek v. Hafner, 383 N.W.2d 295, 300 (Minn. 1986) (instructions as a whole must give jury a correct understanding of the law); Domagala v. Rolland, 805 N.W.2d 14, 31 (Minn. 2011) (new trial if erroneous instruction “destroys the substantial correctness of the charge as a whole, causes a miscarriage of justice, or results in substantial prejudice.”).

65.  Overlooking Special Verdict Forms.

Jury instructions are important in civil cases. Attorneys often spend a lot of time on custom jury instructions, but little time on special verdict forms or special interrogatories. The jury writes the verdict on these forms, so it's important that it be done right. Some verdicts involve a damages number (“What amount of damages will reasonably compensate the plaintiff? $___.”). Other verdicts involve “yes” or “no” questions (“Was Defendant B the primary cause of damage to the plaintiff's home?”). If the jury is confused, they might ask the judge for guidance or they might write in a mistaken verdict. An attorney can add value by suggesting changes or customizing the verdict form. Ignoring verdict forms can be a mistake.

Applicable Law: Minn. R. Civ. P. 49 (special verdicts and interrogatories).

66.  Failing to Object to Jury Instructions or Verdict Forms.

If you spend the time and effort to argue for custom instructions or verdict forms, you want the judge to adopt them. If the judge instead adopts those from your opponent, you need to object. The attorney needs to make “a record” of the objection. This usually means objecting in the courtroom before the judge, explaining the reason, and proposing changes. The judge might make a change. Objecting might get your client a more favorable instruction or verdict form. But if the judge denies your objection, you will at least have preserved your ability to argue that issue after trial or on appeal. Don't assume that the judge and judicial clerk have it figured out. Do your homework and object if you have any concerns.

Applicable Law: Minn. R. Civ. P. 51 (instructions to the jury).

67.  Failing to Properly Assess Witnesses Before Trial.

It is vital to have credible witnesses and evidence supporting your case at trial. The attorney must decide whether a witness will be credible at trial. Depositions are a key opportunity to assess a witness's credibility. If the attorney does not take the witness's deposition or meet with the witness before trial, the attorney could be making a big mistake. “Cold-calling” a witness at trial is risky. The client will likely be a witness, and the attorney must be honest and objective in deciding whether to call the client. If the client is not credible or would come off poorly to a judge or jury, the client should consider a settlement before trial. The lesson is to assess witnesses before trial and decide whether a judge or jury will believe their testimony.

68.  Failing to Call an Expert Witness.

An expert witness is not required in every civil case. “Lay” witnesses can testify to their observations and opinions, as long as the opinion is not on a scientific or specialized topic. Certain cases may require an expert. If you need to prove your injury and medical treatment to a jury, you may need a doctor. If you need to prove the value of land, you may need an appraiser. If you need to prove an aspect of negligent construction, you may need a construction expert. If the attorney relies on non-expert witnesses where a qualified expert is necessary, the judge may exclude the opinion and the client will likely lose the case. This is especially true when the opposing party has its own expert testifying at trial. The bottom line is that the attorney and client should consider the need for an expert and decide the level of investment to make in the expert.

Applicable Law: Minn. R. Evid. 701-706.

69.  Arguing with the Judge.

The attorney's job is to make reasonable arguments and give the client the best chance of winning. The attorney should deliver legal arguments to the judge, both in briefs and in oral argument. But there is a fine line. Once the judge has heard enough or decided the issue, don't make him angry by complaining or continuing to argue. The attorney must make a record of the arguments and preserve any objections to erroneous decisions. By “going off the rails”, the attorney may hurt the credibility of the client's case. Further, if the attorney argues with the judge (or court staff) in front of the jury, the jury is less likely to rule in the client's favor. Always be aware of the courtroom dynamics and listen to the judge for any signals.

70.  Fumbling with Courtroom Technology.

No client wants to see his or her attorney fumbling around with courtroom technology in front of the jury. It goes to the credibility of the lawyer. The lawyer should speak with the court reporter and check out the courtroom prior to trial. Your case may involve important evidence that must be shown to the jury, such as photographs, video, charts, documents, maps, and other physical evidence. It must be shown effectively. If the attorney can't get it right, he or she needs to bring a paralegal or another lawyer from the office to help. I have seen cases where the jury snickers at the attorney clicking through irrelevant files on a laptop. Don't make this mistake. Figure it out before trial.

Applicable Law: Minn. R. Prof. Cond. 1.1 (competence – a lawyer should keep abreast of changes in technology).

71.  Trying to Admit Settlement Discussions into Evidence.

Settlement discussions are generally not admissible at a hearing or a trial, as long as the attorney properly protects the communication. If the attorney does not put “Rule 408 Settlement Communication” (or just “Settlement Communication”) at the top of an email or letter, it could become evidence. You don't want the judge or jury knowing what was offered or rejected. This can be an embarrassing mistake. On the other hand, don't assume that every settlement offer will be excluded. Usually, they don't come into evidence. But there are limited exceptions to show witness bias, prejudice, undue delay, or obstruction of a criminal investigation. The bottom line is that attorneys must protect settlement communications, but also understand how to take advantage of any limited exceptions. Often, this means carefully drafting settlement communications and understanding the rules.

Applicable Law: Minn. R. Evid. 408 (offers of compromise).

72.  Asking Questions If You Don't Know the Answer.

This is a classic mistake by a trial attorney. Through discovery, depositions, and pretrial discussions with the witness, the attorney should have a good idea of the witness's testimony. The attorney should ask questions that help your case, not harm it. Letting a witness wander with his or her testimony can be risky. And when the question relates to a crucial point, the attorney can't risk a faulty or unfavorable answer from the witness. I have seen too many attorneys get unfavorable responses to key questions at trial. It is apparent that they did not fully assess the witness or plan out questions prior to trial. The lesson is to carefully organize the questions to ask the witness at trial.

73.  Assuming Hearsay Will Be Excluded.

Hearsay is one of the most common objections at trial. Basically, hearsay is evidence of a statement made by a person that is not testifying at trial (“He told me that his mother saw the defendant trespass on the land”). This statement would probably be excluded on hearsay grounds. But many people assume that all hearsay will be excluded. This is not accurate. There are many hearsay exceptions. In some ways, the exceptions are broader than the rule. Creative trial lawyers can often get hearsay evidence into the record using the exceptions. This can be startling for an opposing attorney that has not reviewed the hearsay rules or considered this issue prior to trial. The lesson: know the hearsay rules and how they impact your trial evidence.

Applicable Law: Minn. R. Evid. 801-807 (general hearsay rules).

74.  Failing to Prove Affirmative Defenses.

Affirmative defenses are important because they can be a complete defense against a plaintiff's claim. Even if a plaintiff can meet the elements of his or her legal claim, an affirmative defense can overcome it. Keep in mind that the defendant has the burden of proving affirmative defenses. Sometimes, defendants in civil cases assume that the plaintiff has the burden on all issues. The defendant may sit back and simply “pokes holes” in the plaintiff's case. For general defenses, that's fine. But it's not be enough to meet a defendant's burden of proving affirmative defenses. The defendant's attorney may have to call her own witnesses or offer her own exhibits to provide enough proof on the affirmative defense. It's important to understand this shifting burden of proof and to get it right.

Applicable Law: Minn. R. Civ. P. 8.03 (affirmative defenses); First Nat. Bank of Hopkins v. International Machines Corp., 279 Minn. 188, 190, 193, 156 N.W.2d 86, 87, 89 (1968) (burden of proof by preponderance of the evidence).

75.  Delivering Improper Closing Argument.

Closing arguments are the attorney's best opportunity to persuade the jury. Ineffective closings fail to highlight key facts, fail to connect those facts to the elements of the claim, and fail to tell a compelling story. Improper closings involve the attorney giving personal opinions about witness credibility, asking jurors to invoke the “Golden Rule”, referencing insurance coverage in certain cases, injecting new evidence, or otherwise making inflammatory statements to the jury. There is a reason that these tactics are improper: they do persuade juries. For this reason, attorneys try to “sneak” them in. This is risky, since the judge or opposing attorney may object and the attorney may be “dressed down” in front of the jury. This doesn't help the attorney's credibility or the client's case. It can also result in sanctions or a mistrial.

Applicable Law: Civ. Trialbook, Section 8 (attorney shall not misstate the evidence).

Post-Trial Mistakes

76.  Lazy Proposed Findings.

In “bench trials” decided by a judge, the judge must issue an order with detailed findings about the evidence. Judges generally require each attorney to file proposed findings after the trial. This allows the judge to compare the parties' positions and to select the findings that are most appropriate. It also saves the judge time. If the attorney doesn't take the proposed findings seriously, the attorney is doing a huge disservice to the client. The attorney should take an objective look at the evidence and present findings that are favorable to the client. If the attorney proposes findings that are totally skewed and unconnected to the actual evidence, the judge may disregard them. Judges are busy, so the attorney needs to make it easy for the judge to adopt favorable findings. The attorney should write the proposed findings and proposed order so that all the judge has to do is sign it.

Applicable Law: Minn. R. Civ. P. 52 (courts findings after trial).

77.  Failure to Ask for a New Trial or Amended Findings.

If the judge's findings and order are erroneous, the attorney can ask for a new trial or amended findings. Judges often correct their orders, and the corrections may change the overall decision. Failing to make these motions is a lost opportunity. Additionally, the attorney may have to make these motions in order to preserve arguments on appeal, and to “toll” (extend) the deadline for filing an appeal. If the attorney doesn't make the motions, the client's case will almost certainly be lost.

Applicable Law: Minn. R. Civ. P. 52.02 (amended findings); Minn. R. Civ. P. 59 (new trial).

78.  Failing to Serve Notice of an Order.

When the judge issues a trial order or adopts a jury verdict, the court will mail it to the parties. You might think this formally gives a party “notice” for all purposes. But for some purposes, you must take further action. To be sure that the appeal deadline (often 60 days) starts running, the attorney should serve “Notice of Filing of the Order dated ______” on other parties. It is a simple but necessary task. If it is not done, a party may be able to appeal the case long after the trial concluded. Clients need closure, and the expiration of the appeal period means closure.

Applicable Law: Minn. R. Civ. App. P. 104 (establishing deadline after “service by any part of written notice of its filing.”).

79.  Failure to Ask for Your Litigation Costs.

The “prevailing party” in a civil case is entitled to certain costs and fees. Attorneys don't usually forget to file these costs with the court, but they sometimes fail to document them. There are several categories of potential costs a party can recover. Significant categories include deposition costs, service costs, court filing costs, and expert costs. Sometimes, these costs can total $5,000-10,000+. It's the attorney's responsibility to keep track of these litigation costs and submit proof when filing with the court administrator. This means keeping receipts and copies of checks. The opposing party has a right to object, and will object if the proof is not filed. Since attorney's fees generally cannot be recovered, it is important for the attorney to recoup other litigation costs on behalf of the client.

Applicable Law: Minn. R. Civ. P. 54.04 (costs); Minn. Stat. § 549.03 (costs); Chapter 549 of Minnesota Statutes.

80.  Failing to Enter the Judgment Immediately.

When the judge issues a final order, the judge must state whether to “enter” the judgment immediately or to “stay entry” of the order. Entering a judgment simply means that the judge includes basic language in the order “judgment shall be entered immediately.” “Docketing” a judgment is a more formal action in which the court administrator formally places the judgment on a “judgment roll”, often after the party pays a docketing fee. Judges and attorneys often make mistakes related to entering or docketing a judgment. The attorney for the prevailing party should ensure that it's done right. The judgment must be entered before a party can docket it or for the appeal deadline to start running. An attorney can usually accomplish this by including the proper language in a proposed order or specifically requesting it at the end of trial.

Applicable Law: Minn. R. Civ. P. 54 (judgment; costs); Minn. R. Civ. App. P. 104 (appeal deadlines from entered judgments).

81.  Failing to “Docket” the Judgment.

If a party is fortunate enough to win the case, he or she must generally “docket” the judgment. The judge's entry of judgment does not generally allow a party to collect on it. The party or attorney must pay to have the judgment “docketed” and placed on the judgment rolls. This is important if the party wants to collect on the judgment or have it become a “judgment lien” on the defendant's real estate in that county. A judgment holder can foreclose a judgment lien on land. The timing of when a judgment is docketed can affect your priority in relation to other creditors. So, regardless of your mode of collection, docketing a judgment is a simple step that you must do.

Applicable Law: Minn. Stat. § 548.09 (judgment lien); also see Judicial Training Update on Civil Judgments.

82.  Failing to Understand if a Case is Dismissed with Prejudice.

When a case is dismissed “with prejudice”, the plaintiff can never bring it again. For dismissals “without prejudice”, the plaintiff can re-file the case. Do you want to be sued again? Of course not. If you settle a case, make sure there is a dismissal with prejudice. Likewise, if the judge considers dismissing claims “without prejudice” or the plaintiff wants to voluntarily dismiss “without prejudice”, the defendant may oppose it. Sometimes, cases must be dismissed without prejudice for procedural reasons. But as a defendant, you would want it dismissed for good and with prejudice. It's a mistake for a party or attorney to overlook this issue.

Applicable Law: Minn. R. Civ. P. 41 (dismissals).

83.  Failing to do Homework on the Defendant's Assets.

Judgment collection can be difficult. If you don't do your homework, you will waste your time and money. Don't “throw good money after bad.” You can serve a Demand for Disclosure on the debtor. Or, you can serve post-judgment interrogatories or take the person's deposition to get financial information. This will tell you if the debtor has any non-exempt assets or wages on which to collect. It should also give you enough information to levy or foreclose on those assets. The debtor must provide these answers or can be held in contempt of court. Getting financial information does not guarantee you will collect on a judgment, but without it you will have almost no chance of getting paid.

Applicable Law: Minn. Stat. § 550.011 (demand for disclosure); Minn. R. Civ. P. 69 (execution); Minn. R. Civ. P. 33 (interrogatories); Minn. R. Civ. P. 34 (requests for production).

84.  Failing to Understand if the Defendant's Assets are “Exempt”.

If you did your homework, you will know what assets are held by the defendant (called a “judgment debtor” after the judgment is docketed). However, many judgment creditors fail to understand the difference between “exempt” and “non-exempt” assets. Stat. § 550.37 lists many exempt assets that are off limits to judgment creditors. For example, a creditor cannot generally collect the first $420,00 on a debtor's homestead (or $1,050,000 for agricultural land) under this statute and Minn. Stat. § 510.02. That can be a big blow to your collection efforts. Likewise, you will be limited in the amount you can “garnish” from a debtor's wages. The bottom line is that a judgment is simply a piece of paper – if you cannot find non-exempt assets owned by the debtor, you will have nothing to collect. If possible, you should make a preliminary assessment before you even start a lawsuit against the defendant.

Applicable Law: Minn. Stat. § 510.02 (homestead exemption); Minn. Stat. § 550.37 (exempt property).

Civil Appeal Mistakes

85.  Untimely Appeals.

In Minnesota, most appeals must be filed within 60 days of a judgment or appealable order. While this seems straightforward, many appeals are lost when a party or attorney blows the deadline. One issue is failing to understand what is an “appealable order”. Some cases can be complex and some parties may be dismissed before others. If so, there are questions about whether the party can appeal. Another issue is when the court issues a trial order, but a party requests that the judge reconsider the decision. This generally won't “toll” the appeal deadline, as opposed a motion for new trial or amended findings which should “toll” the appeal deadline. Some attorneys simply lose track of the 60-day period. Whatever the issue, blowing the appeal deadline is a major problem that that an appeals court will not excuse.

Applicable Law: Minn. R. Civ. App. P. 104 (time for filing and service of appeal).

86.  Failing to Cite Legal Authority.

Appeals courts are “error-correcting” courts. You must show them legal authority, such as a case, statute, rule, or compelling policy. If you file a brief that does not cite to any legal authority, your appeal will be dismissed. Self-represented parties often lose appeals because they fail to cite to cases or statutes that could help them. Likewise, attorneys that argue “I believe there were cases supporting that point” without citing them will be out of luck. The reason a party appeals is because the district court made a reversible error under the law. You should know the legal authority before you file the appeal and cite it in your appeal brief.

Applicable Law: Schoepke v. Alexander Smith , 187 N.W.2d 133, 135 (Minn. 1971) (claims of error must be supported by argument and citation to legal authority). 

87.  Making New Arguments on Appeal.

Appeals courts are “error-correcting” courts. They will generally not allow you to raise new arguments on appeal. You must make them in district court and get a ruling. Regardless of whether the district court rules on your issue, you likely have “preserved” that argument for appeal. You can cite additional cases in your appeal brief and re-shape the existing arguments you already made, but totally new arguments will not be considered. The party or attorney must properly preserve all appealable issues in district court, including objections to evidence or jury instructions. Failing to do this is a big problem that will end in a harsh result.

Applicable Law: Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 584 n.2 (Minn. 2010). (“Generally, issues not presented to the trial court may not be raised for the first time on appeal.”)

88.  Failing to Understand the “Standard Of Review”.

The “standard of review” is what an appeals court uses to decide whether to overturn a case. Sometimes, they take a fresh look at the case. Other times, they give deference to the district court. A critical mistake that pro se parties and attorneys make is applying the wrong standard of review. Do you know the difference between reviews for “abuse of discretion”, “clear error”, “clearly erroneous”, “substantial evidence”, and “arbitrary and capricious”? You better understand it before you make an appeal, or else you will be “shooting in the dark.” A common mistake is assuming that the appeal court will overturn factual findings. This is rare and generally hard to do, since deference is given to the trial judge that observed the witness testimony. On the other hand, errors of law (i.e., misinterpreting a contract or statute) will generally be reviewed by an appeals court without any deference to the district court. Before spending the time and money for an appeal, understand the standard of review that will apply to your appeal issues.

Applicable Law: See comprehensive summary provided by The Minnesota Court of Appeals Standards of Review.

89.  Failing to Check Formatting Rules.

Appeals courts generally have very specific rules about how legal briefs are formatted. From the perspective of a party or attorney, this “micromanaging” can be annoying or frustrating. There are page limits, word limits, size limits, font rules, rules for covers of briefs, and rules about how the brief is structured. Sometimes, violations of these rules can cause the appeals court to “strike” all or part of your brief. If your brief is not considered, don't expect to win the appeal.

Applicable Law: Minn. R. Civ. App. P. 132 (format of brief).

90.  Failing to Order a Transcript.

You must show the appeal court an error to overturn. The appeals court needs information to see what happened in your trial or proceeding. Most cases will require a certified written transcript prepared by the trial judge's court reporter. You or your attorney will have to contact the court reporter, pay his or her fee (possible $1,000+), and then ensure it is filed with the appeals court. If you fail to order a transcript in a timely manner, there will be no record of witness testimony, legal arguments, or objections. As such, you will likely lose your appeal. Include this step on your “checklist” for perfecting an appeal.

Applicable Law: Minn. R. Civ. App. P. 110 (record on appeal).

Ethical Mistakes in Civil Cases

91.  Failing to Redact Confidential Information.

Minnesota court rules require sensitive information (SSN, credit card, bank account numbers, etc.) to be redacted in filings. Failing to redact can lead to rejected filings (which then cause deadline problems), sanctions, ethical discipline for the lawyer, and potentially a lawsuit if the person is harmed by the disclosure. The attorney or legal assistant must go through the documents to be filed and remove any confidential information. If not, the court administrator will likely notice the problem and require you to correct it.

Applicable Law: Minn. R. Gen. Pract. 11 (submission of confidential information).

92.  Inadvertent Disclosure of Information.

Clients depend on the lawyer to keep information private. If the attorney writes an email with advice to the client and accidentally sends it to the opposing attorney, it does actual harm to the client's case. The opposing attorney should send it back without reading it, but there is no guarantee. If the email is sent to a third-party, the client could lose confidentiality, attorney-client privilege, and claims of attorney work product. These are bad things that can hurt a client's case. Attorneys must be proficient in email, or have good support staff to avoid this problem.

Applicable Law: Minn. R. Prof. Cond. 4.4(b) (lawyer should notify sender); Minn. R. Prof. Cond. 1.6 (confidentiality of information); Minn. R. Evid. 502 (attorney-client privilege and work product).

93.  Failing to Calendar Deadlines.

This can sink a client's chance of winning a case, and is a common malpractice and ethics claim against lawyers. Once the attorneys agree on a litigation schedule or the judge issues a Scheduling Order, the attorney must put the deadlines into a calendar. Several of the mistakes listed in this article (blown motion deadlines, expert disclosures, witness and exhibit lists, etc.) relate back to poor calendaring by the attorney or his office. The client should have a general sense of the deadlines and bring any concerns to the lawyer. But it is truly the attorney's job to put it into a calendar. You may not be surprised to hear that the cost of a lawyer's malpractice premium depends, in part, on whether the firm has procedures for calendaring litigation deadlines. Make sure the attorney stays on top of your deadlines.

Applicable Law: Minn. R. Prof. Cond. 1.1 (competence); Minn. R. Prof. Cond. 1.3 (diligence).

94.  Loss of Attorney-Client Privilege.

This can be a tricky issue, and there are 1,000-page treatises on the technical rules of attorney-client privilege. There are related concepts of “attorney-client confidentiality” and “attorney work product”. These are all designed to keep attorney-client communications and advice private. But there are situations where it can be lost. The client may bring outside parties to attorney meetings, copy advice emails to third parties, and otherwise allow third parties to receive the attorney's advice. This problem often comes up in depositions or court hearings. The opposing attorney might be able to ask the client about (a) advice given by the attorney and (b) information the client shared with the attorney. Both categories are bad, but clients are often more willing to share sensitive information with the lawyer than with opposing attorneys or the court. This can lead to embarrassing and harmful disclosures for the client. It will also harm the client's case.

Applicable Law: Minn. R. Prof. Cond. 1.6 (confidentiality of information); Minn. R. Evid. 502 (attorney-client privilege and work product); Minn. Stat. § 595.02, subd. 1(b) (lawyer cannot generally be called as witness); also see Robins Kaplan, The Attorney-Client Privilege in Civil Litigation.

95.  Tampering with or Coaching Witnesses.

Most people understand that it is improper and illegal to “tamper” with a witness by using threats, payments, or intimidation. That will not help your civil case. But attorneys also must be careful not to “coach” their client or a witness. “Coaching” means to encourage dishonest testimony, baiting a person into false answers, writing a script for the witness, asking them to omit details, or similar conduct. An attorney should prepare a witness for a deposition or trial, but must do it properly. If not done right, the client could lose the case and the attorney could face ethics charges.

Applicable Law: Minn. R. Prof. Cond. 1.2 (scope of representation and criminal conduct); Minn. R. Prof. Cond. 3.3 (Candor Toward Tribunal); Minn. R. Prof. Cond. 1.16 (Declining or Terminating Representation); Minn. Stat. § 609.498 (witness tampering).

96.  Dishonest Testimony or Statements.

The witness has a duty to answer truthfully under oath. The attorney has an ethical duty to make sure a client or witness's testimony is truthful, and to correct testimony that she knows is untruthful. The attorney must also be truthful in representations to the court. Cases go astray when a witness or attorney violates these principles. If the client or key witness is exposed for false testimony, the client could lose the case and be prosecuted for perjury. Sometimes, the witness simply misspeaks or is inaccurate about something. It is a mistake for the attorney not to correct it in front of the judge or jury, who will be looking for credible witnesses and attorneys. Never underestimate the importance of your credibility in court.

Applicable Law: Minn. R. Prof. Cond. 1.2 (scope of representation and criminal conduct); Minn. R. Prof. Cond. 3.3 (Candor Toward Tribunal); Minn. R. Prof. Cond. 1.16 (Declining or Terminating Representation); Minn. Stat. § 609.48 (perjury).

97.  Talking Directly with Represented Parties.

This is a common ethical complaint. The attorney knows or has reason to know that the opposing party has an attorney, yet contacts the opposing party directly. The opposing party discloses sensitive information or gets bullied into an unfavorable settlement. The opposing attorney will likely report the attorney to the ethics board. And the judge in the case may have to take remedial action to limit evidence or reject settlements made as a result of the wrongful communication. It can even be problematic for the attorney to use his client to bypass the opposing attorney. The attorney must be careful to avoid this issue and, if you are a represented party, you should insist that all communications about your case go through your attorney.

Applicable Law: Minn. R. Prof. Cond. 4.2 (communication with represented person).

98.  Outbursts in Court.

There is a reason that courts have bailiffs to keep order and Kleenexes in the courtroom. Court can be stressful and emotional. Many cases have been lost after an attorney or client has an outburst in court. Your credibility is critical, especially in front of the judge or jury deciding your case. If the client or witness is unable to handle the rigors of cross-examination or other aspects of litigation, the client may have to consider settlement options. Also, the attorney may have to give the client an honest opinion about whether he or she will be a credible witness. Likewise, an attorney that is “off-the-handle” in the courtroom will not impress the judge or the jury. The bottom line is that if the attorney and client cannot manage the stress of civil litigation, they may lose the case and be held in contempt of court.

Applicable Rule: Chapter 588 of Minnesota Statutes (contempts of court).

99.  Omitting Debt Collector Disclosures.

The Fair Debt Collection Practices Act (FDCPA) is a federal law that governs collection of consumer debts. Sometimes, the law applies to lawyers or their clients. If the lawyer or client fails to follow the law, they can be sued and may be unable to collect on the consumer's debt. A common violation of the FDCPA is failing to include a “mini-Miranda” warning on demand letters. The debt collector may have to identify himself or herself as a debt collector. The disclosures are not overly burdensome, but failing to disclose them can impact your success in the case and expose you to liability.

Applicable Law: 15 U.S.C. § 1692, et seq.

100.  Other Misconduct and Incompetence.

The universe of civil litigation mistakes is vast. Civil litigation is hard and not every attorney is competent to handle it. There are numerous attorney ethics problems that arise in litigation: conflicts of interest, disability, chemical abuse, embezzlement, lack of experience, lack of skill, lack of diligence, inability to apply the law, breach of confidentiality, dishonesty, and other issues. Likewise, the client could have similar issues. The lesson is for clients to carefully pick their litigation attorney, and for the attorney to carefully take on cases that he can handle competently. If so, this increases the chance of success in litigation.

Conclusion

Civil litigation is challenging for attorneys and their clients. Being aware of the potential pitfalls is vital to success in a civil lawsuit. If attorneys and their clients fail to heed the court rules and address these pitfalls, they may lose the client's case and face their own liability. A competent litigation attorney with experience in Minnesota courts can minimize your risk and avoid these mistakes.

If you need a lawyer to handle a civil dispute or lawsuit, Contact Us for a free consultation. With offices in Shakopee (Scott County) and Litchfield (Meeker County), we serve clients throughout the Twin Cities and Greater Minnesota.