Published by Minnesota Lawyer
The death last month of baseball great Yogi Berra, who anchored 10 world championship teams for the New York Yankees baseball dynasty from the late 1940s to the mid-1960s spurred considerable commentary about the man, his milestones, and some of the myths surrounding the great baseball catcher.
But Berra, who passed away at the age of 90, was more than a stellar ballplayer. A three-time most valuable player (MVP), the Hall of Famer achieved cultural iconic status. His stature was due not only to his prowess in the national pastime, but also to many remarks attributed to him, which have become well-known linguistic catch phrases. The pithy observations, Yogi-isms, as they have become known, seemingly are nonsensical. But beneath the surface, they combine wisdom and wit, causing listeners or readers to nod sagaciously that they are more logical than they appear on their illogical surface.
Covering a wide range of human endeavors, many Yogi-isms have a bearing on the law. This week’s World Series, an event that Yogi played in 14 times (winning 10 of them), provides an opportune occasion to look at a few of the Yogi-isms, fittingly nine of them, and how they reflect the legal environment in Minnesota.
‘When you come to a fork in the road, take it.’
Yogi’s advice should be taken into account in preparing civil pleadings.
In Minnesota, alternative pleadings are permissible under Rule 8.05(b), of the Rules of Civil Procedure. So, too, are parallel statutory common law claims, even if they are somewhat inconsistent.
But claimants cannot obtain “double recovery” for the same harm, when pled in the alternative, and most choose which remedy to take if more than one is awarded. Wirig v. KinneyShoe Company, 461 N.W.2d 374 (Minn. 1990).
‘Nobody goes there anymore; it’s too crowded.’
Yogi’s reluctance to frequent a particular restaurant may be true of the state of civil litigation lately in Minnesota. After many years of crowded court dockets, filings have stabilized, or even subsided, in both federal and state court systems.
In the federal court system, the number of civil filings has been steady over the past few years, with slight annual decreases followed by equally small increases. In the Minnesota state court system, docket congestion has declined over the past three years. The total number of civil lawsuits filed in the 10 judicial districts declined during that period from about 169,000 (130,000 classified as “major”) to 150,300 (114,400 of them “major”) from 2012 to 2014.
Similarly, the Court of Appeals has seen filings decrease by about 6 percent from 2212 to 2093 during that span. Direct appeals to the Supreme Court also diminished, from 135 to 115, although petitions for review went up slightly, from 639 to 659 during that period.
‘A nickel ain’t worth a dime anymore.’
The remedy for the loss of the time value of money is to invoke interest after or even before judgments.
As a result of a 2009 amendment to the Minnesota interest statute regarding civil claims, Minn. Stat. § 549.09, interest accrues at 10 percent per annum on most verdicts, judgments, and arbitration awards if the amount exceeds $50,000. For lesser awards, the rate is currently 4 percent and fluctuates with the bond market.
Similarly, pre-judgment interest is set at 10 percent for most claims running from the date of notice of claim, demand for arbitration, or commencement of lawsuit. But different rules apply for demands and counteroffers under the statute.
‘Never answer an anonymous letter.’
The pervasity of defamation on the Internet is overtaking conventional forms of media defamation. As nearly everyone has access to the Internet these days, lacking any editing or filtering function, defamation thrives in that milieu, whether done through blogs, emails, tweets, Instagrams, or other devices.
Minnesota law imposes restrictions on pursuing claims for Internet defamation, particularly when the perpetrators are out of the jurisdiction, unless the communication is “expressly aimed” into Minnesota, a standard hard to satisfy. Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002).
Another challenge for someone who is the subject of defamation on the Internet is to find who is the perpetrator because they often mask themselves in cloaks of anonymity. Various devices are available to attempt to ascertain the identity of an anonymous source of defamation, often necessitating filing of a “John/Jane Doe” lawsuit in order to have access to subpoena power to seek information from the Internet host entity.
‘It sure gets late early out there.’
Yogi’s observation about the distractions caused during World Series games by autumn shadows in left field, where he played late in his career, resonate with civil claimants facing imminent expiration of statutes of limitations.
Pragmatic reasons may exist to defer commencing a lawsuit, despite the rapidly advancing shadow of a limitations period, such as the need to gather more pre-litigation evidence, possibility of engaging in pre-litigation negotiations, and desirability to avoid a public filing and related notoriety, among other grounds.
These circumstances may warrant a tolling agreement, an arrangement in which parties, usually through counsel, mutually consent to suspend the statute of limitations pending further negotiations or further developments. The device is permissible in most instances, except for those rare instances when a limitation period is deemed to be jurisdictional and cannot be extended.
But tolling agreements can be fraught with complexities. One complication occurs when an inpatient litigant files a lawsuit during the pendency of a tolling agreement. Despite the existence of the tolling arrangement, a lawsuit may continue, subject to a breach of contract defense by the other aggrieved party. Kunz v. St. Mary’s Regional Health Center, 747 N.W.2d 586 (Minn. App. 2008).
‘Always go to other people’s funerals; otherwise they won’t go to yours.’
Pursuing claims for wrongful death also can pose issues of timeliness.
Under Minn. Stat. § 573.02, the limitations period for wrongful death claims generally is three years, even if the underlying cause of action, including negligence, is for a longer period of time, such as six years for most torts.
Another trap for the unwary in pursuing wrongful death claims is the need for appointment of a personal representative or trustee before the three year limitations period expires. Failure to do so bars a subsequent claim. Miklas v. Parrott, 669 N.W.2d 588 (Minn. App. 2008).
‘We were overwhelming underdogs.’
The likelihood of obtaining a review by the Minnesota Supreme Court of a decision of the Court of Appeals has remained stable and slight over the years. The percentage of the cases that the Supreme Court agrees to take, other than those that they must hear, such as first-degree murder and workers compensation cases, and those rare ones with original jurisdiction, has hovered around the 15 percent mark, meaning that 1 out of every 7 or 8 petitions for review is granted.
Last year, the court agreed to hear 95 of the 659 petitions, 14.4 percent, about the same rate in previous years. Despite the long odds, the chances are far better than seeking review by certiorari from the U.S. Supreme Court, which hears an infinitesimal number of cases, about 75 out of 8,000 sought per year.
The criteria for granting petition for review are set forth in Rule 117 of the Minnesota Rules of Civil Procedure. Dissatisfaction often occurs on the part of parties whose petitions are declined, because the court never gives reason for accepting petitions or, more importantly, for declining them. The court has been urged from time to time to articulate why it has taken a particular case or declined to do so, or at least make the decision-making process more transparent, a practice that is followed only on rare occasions by the U.S. Supreme Court.
‘It is déjà vue all over again.’
But the chances of winning if the challenger can get the case heard are much higher. More than a third of appeals before the state Supreme Court resulted in reversals or remand or other favorable outcomes in 2014, while the court affirmed about half, 37 of 75 case dispositions. Since this includes a number of workers compensation and murder cases, which usually are affirmed, the reversal rate for civil cases approaches 50 percent or more. This is a far cry from the U.S. Supreme Court, which in recent years has shown a penchant for overturning the few cases it actually hears. The reversal rate has been in excess of 70 percent lately, with 72 percent overturned last year, including 7 of the 8 cases heard from the Eight Circuit Court of Appeals.
Yogi’s observation, which supposedly occurred while he was watching Roger Maris and Mickey Mantle hit back-to-back home runs in the historic 1961 race to break Babe Ruth’s existing 60 home run record, might apply to trial or rehearing of cases upon remand from the appellate courts.
Relitigating a case after remand, or when a new trial is granted by a trial court, is reminiscent of Bill Murray’s character in the “Groundhog Day”movie, who keeps experiencing each day repeating itself. E.g., Hyatt v. Anoka Police Department, 680 N.W.2d 115 (Minn. Ct. App. 2004) and 700 N.W.2d 502 (Minn. Ct. App. 2005) (city immune under “dog bite” statute).
But unlikethe world-weary weatherman character depicted by Murray in that film, the results of retrial may differ from the original case. A different outcome from the original proceeding may be attributable to parties learning from the past, changing tactics and other nuances, or even changes in the law, which result in the outcome of the second trial differing from the first. Sigurdson v. Isanti County, 386 N.W.2d 715 (Minn. 1986), 448 N.W.2d 62 (Minn. 1989) (gender discrimination claim actionable).
‘It ain’t over till it’s over.’
Yogi’s possibly most well-known observation is applicable to the Minnesota appellate court process.
In the state court system, appeals generally can be taken within 60 days of most rulings through the Minnesota Court of Appeals under Rule 103 of Minnesota Rules of Civil Procedure. There are, however, some instances in which a party need not wait 60 days, but may bring an interlocutory appeal earlier, before proceedings are concluded in the trial court. Under Rule 103(d), interlocutory appeals may be taken from the granting, denying, or dissolving of an injunction. Other interlocutory appeals can include a dismissal of a case for lack of jurisdiction, even before final judgment is entered. Bulau v. Bulau, 208 Minn. 529, 294 N.W. 845 (1940).
Additionally, cases that are not finalized may be appealed under Rule 54 of the Minnesota Rules of Civil Procedure, provided the trial judge deems them to be separate and distinct and there is no “just reason” for delay. Another round for pre-finality appeal is through certification, which allows the appellate court to pass upon an issue that is regarded as “important” or “doubtful” by the lower court, even if the case is not concluded under Rule 103.03(1) of the Minnesota Rule of Civil Procedure. In addition, the appellate courts may exercise discretionary review under Rule 105, even if the matter is not otherwise ripe for appeal.
Another appellate route, although infrequently used, is certification by the U.S. District Court to the Minnesota Supreme Court to address an unresolved issue of state law under the Uniform Certification of Questions of Law statute, Minn. Stat. § 408.065. A recent illustration is a case heard last month by the state supreme court, certified to it by U.S. District Court Judge Richard Kyle in St. Paul, asking how to construe “actual value” for a casualty loss in a homeowner’s insurance policy. Wilcox v. State Farm Cas. Co., No. 14-2798(D. Minn. March 4, 2015), No. A15-0724 (Minn. Oct. 12, 2015).
Yogi played against the Minnesota Twins in the declining years of his career, from 1961-1964, before ending his playing days with the cross-town New York Mets in 1965; he then became a manager for both New York teams, the Mets and the Yankees, at different times.
He only hit a meager .158 (three hits in 19 at bats) against the Twins, compared to a .285 overall lifetime batting average. But his comments about life have caught on and hit home with Minnesota lawyers.
Whether Yogi made all of those observations is unknown. As he once said: “I didn’t say all of the things they said I said I said.”
But whether he actually said them, or they are apocryphally ascribed to him, these and yet additional remarks reflect what he probably would have said, had he said so.
Some notable Minnesota baseball cases
– Metropolitan Sports Facilities Commission v. Twins Partnership, (2002): Court of Appeals upholds injunction for Twins to play final year of lease in Metrodome.
– Minnesota Twins Partnership v. State (1999): State Supreme Court bars anti-trust inquiry by attorney general into Twins and Major League Baseball.
– Marshall v. Marshall (1984): Deferred compensation owing to Twins relief pitcher subject to equitable division in marital dissolution proceeding.
– Uhlaender v. Henricksen (1970): Federal District Court in Minnesota allows players to claim proprietary interest in identities and statistics used in board game, predecessor of “fantasy” sports craze.
– Brisson v. Minneapolis Baseball & Athletic Association (1932): Spectator injured by foul ball at game barred from suing team under “assumption of risk” doctrine.