I Win, You Pay: Considerations of Efficiency and Fairness in Minnesota Appellate Litigation of Attorney's Fees—T.A. Schifsky & Sons, Inc. v. Bahr Construction, LLC

31 Pages Posted: 14 Mar 2012

See all articles by Jeffrey Holth

Jeffrey Holth

Mitchell Hamline School of Law

Date Written: 2010


Scholarship has recognized two critical problems related to attorney’s fees: (1) an increase in piecemeal appeals and (2) confusion regarding the appropriate time to appeal the fee judgment. Recently, the Minnesota Supreme Court addressed similar concerns regarding attorney’s fees in T.A Schifsky and Sons, Inc. v. Bahr Construction, LLC. While the court’s decision does not illuminate the degree to which fee shifting has burdened courts and litigants, it does indicate that problems relating to fee shifting in Minnesota persist. In light of T.A. Schifsky, this note attempts to analyze issues of attorney’s fees in Minnesota with a focus on procedural efficiency and fairness to litigants. Given that similar analyses have often been confined to a federal perspective, an analysis at the state level is particularly important.

This note begins by outlining the origins of fee reallocation in America and in Minnesota. Part III provides a chronological outline of important Minnesota Supreme Court decisions that address the treatment and characterization of attorney’s fees. Part IV is devoted to a discussion of the recent Minnesota Supreme Court decision in T.A. Schifsky. Part V of the note addresses Green’s criticisms related to the effects of fee shifting within the context of Minnesota case law. Specifically it discusses (1) whether Minnesota’s treatment of attorney’s fees burdens courts with inefficient, piecemeal appeals, and (2) whether Minnesota’s characterization of attorney’s fees nurtures unfairness within the appeals process.

With respect to the first issue, the note concludes that while Minnesota case law allows for attorney’s fees to be appealed separately from the merits, this allowance does not burden the court system with piecemeal appeals. This is because district courts generally rule on attorney’s fees in an expedient manner, which in turn allows appellate courts to consolidate attorney’s fees appeals with appeals on the merits and prevent piecemeal litigation. With respect to the second issue — fairness to litigants — the note concludes that the holding in T.A. Schifksy fails to provide the necessary guidance for litigants to confidently anticipate the running of the appeals period. In order to prevent confusion and untimely appeals, two solutions are proposed that may provide some clarity to the inherently complex relationship between attorney’s fees and merit-based judgments.

Keywords: Minnesota, attorney's fees, appellate litigation

JEL Classification: K40, K41

Suggested Citation

Holth, Jeffrey, I Win, You Pay: Considerations of Efficiency and Fairness in Minnesota Appellate Litigation of Attorney's Fees—T.A. Schifsky & Sons, Inc. v. Bahr Construction, LLC (2010). William Mitchell Law Review, Vol. 37, No. 1, p. 268, 2010, Available at SSRN: https://ssrn.com/abstract=2018058

Jeffrey Holth (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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