From the Red River Valley to the Iron Range

Fergus Falls-based attorney and former state bar president Dick Pemberton of Pemberton Law has tried dozens upon dozens of cases in every corner of the state

Published in 2014 Minnesota Super Lawyers — August 2014

Q: I understand you go out of town for work on a regular basis.

A: Always have. I’ve done more trial work in places other than Fergus Falls by far than I have in Fergus Falls over the last half-century.

 

Q: Where have you been?

A: Well, we have to go back in time. A lot of my jury trial work was done many years ago when there were many more jury trials on the civil side than there are now. I tried cases in a large number of the county courthouses going across the Canadian border: in Hallock, Roseau, Baudette, International Falls and so forth. And then down along the Dakotas line, clear down to certainly Ortonville, and then over to the Twin Cities and going north.

I tried cases in federal court in Duluth and all over the place and everything in between. But that has changed radically in recent years. There is a fraction of the number of jury cases tried now as compared to when I was doing my most heavy load.

 

Q: Do you think that’s a good thing?

A: No. I really don’t. I think that if a person is in the right and sincerely believes that they are in the right, I think that a jury of one’s peers provides the best justice—assuming that the case is advocated properly, intelligently and ethically on each side. I think that justice comes out of the blending of equal opposing force.

My practice over the years has been balanced. At times, I was actively representing the defense, particularly in earlier years. In later years, I’ve often been representing plaintiffs. My practice for the last number of years has been quite heavily focused on alternative dispute resolution, both mediation and arbitration.

 

Q: How did you get your start?

A: If you go way back to my beginnings as a lawyer, I’ve been admitted to the Minnesota Bar since 1957 and the federal bar for just about that long, for goodness’ sake. My first association as a lawyer was with the Felhaber Law Firm. Felhaber was very much of an employer-oriented, labor management specialty law firm.

I had worked for a summer as an intern while in law school for the National Labor Relations Board and developed a good relationship with the chairman of the NLRB for the fifth region of that time, who was a good friend of Dick Felhaber, and who suggested to Dick that he might consider giving me a chance. So that was my first association, and that was labor work.

Then I spent three years in the Army teaching international law at the University of Virginia to military lawyers.

 

Q: You joined the Army after you had started your legal career?

A: Correct. I reported for active duty in January of 1958. I spent most of my three years on active duty and five more years of active reserve at the Judge Advocate General’s School based on the grounds of the University of Virginia in Charlottesville. I didn’t feel like I was in a bunker with my rifle aimed at the enemy, particularly, in the defense of my country, but it was a good experience.

If you’ve ever been in Albemarle County, Virginia, of which Charlottesville is the county seat, it is one of the most beautiful places in the world, I think. I decided that I couldn’t go back to such a metropolis as Minneapolis-St. Paul when I got out. I had been raised in a small town in southern Minnesota, Blue Earth, and also on my grandfather’s farm in Kandiyohi County, and I thought I’ve got to find a place that offers what rural Minnesota offered then and still offers today: lakes, woods, forests.

But I also wanted to do jury trial work, and I found this law firm of which I am today the senior partner. I was the lowliest lawyer on the totem pole when I reported for work on the sixth day of December 1960, a long, long time ago.

 

Q: What was the name of the firm at that time?

A: Rosengren, Rufer & Blatti. The name had been, prior to 1953, Dell, Rosengren & Rufer. Roger Dell was appointed chief justice of the Minnesota Supreme Court in the early ‘50s. He served there until 1962.

There was a wonderful opportunity for a young lawyer to try jury cases and that’s what I wanted to do. I liked the idea of a city the size of Fergus Falls. It was a big city for rural Minnesota. But it was the most productive dairy farming county in the state. It was 15 miles from the glacial Lake Agassiz, alluvial plain, the Red River Valley, the bonanza farming country, and it was 15 miles from the edges of the Canadian Shield, with the lakes and the forests. I just thought Fergus Falls was heaven on earth, and I still think that.

 

Q: What made you want to handle jury trials?

A: I liked the contest of it—to be able to hone my ideas on the stone of challenge, to see if my view of the law and the facts could withstand challenge. There were good trial lawyers in those days, and it was very exciting to me to come up against some of those lawyers. In Bemidji, there was Herb Olson and Clarence Smith and Romaine Powell. In Brainerd, there were the Ryan brothers, excellent trial lawyers. In Moorhead, there was Jim Cahill. In Hallock, of all places, there was Lyman Brink, who was a regent of the University of Minnesota at the time.

We called Kittson County, Roseau County and the surrounding counties up there “Brink Land.” You’d go into trial against Lyman Brink in Brink Land and you’d wonder how many people on the jury might owe him money. He owned a number of the small-town banks up there.

So I found it very challenging as a young lawyer. In Little Falls, I had the opportunity to try cases, first against, and later on with, John Simonett. I had the honor of doing one of the eulogies at his funeral not that long ago. That was very exciting to be able to be in the same courtroom with him. I had the honor of being co-defense counsel. We represented separate clients in the last trial that John tried before he went on the [state] Supreme Court in 1980.

We represented two of three boat stealers on the Whitefish Lake chain. The third boat stealer was the plaintiff in the lawsuit, and John’s client, my client and the plaintiff were out on a hot midsummer night having some fun, finding a boat tied to the dock. The plaintiff knew how to hot-wire boats and he could get the boats going.

I found it to be an exciting life. Trial lawyers were interesting people. They had experiences. They were great storytellers.

 

Q: Please tell us one of your own.

A: There was the equivalent of a 19th hole for golfers, the local American Legion Club or wherever in the little towns where you might be trying cases against some of these people. Lyman Brink used to say to me, “Dick, up until 5 o’clock you’re the enemy, and at 5 o’clock you’re my buddy.”

 

Q: You’ve tried more than 100 cases to a jury verdict. What do you know now that you wish you’d known when you started out?

A: I knew how to work hard, and that’s half of it, but I was not as good at being nice to people as I am now.

 

Q: Do you mean being nice in the courtroom with the jury, or just in general to everyone?

A: I think I tried to appear to be nice in the courtroom because I think jurors expect lawyers to be nice, and they don’t like lawyers who display arrogance or opulence. Usually in those days, when somebody got on the jury, lots of times it was a retired farmer. The jurors would usually put on their Sunday go-to-church suit. When my clients would say, “How should I dress for court?” I’d tell them, “Like you’re going to church,” and that’s what I did, too. I don’t think I ever tried a jury case in the early days without being sure to wear the same suit every day and the same tie every day. And no gold.

 

Q: Any other secrets or tips for communicating with juries?

A: I believe that there is a lot of subtle psychology going on in what you do. You create doubt as to the other side’s case without insult or disservice to the character of the opposing lawyer or to the opposing client. If one or the other of them or both of them incur the disfavor of the jury, that’s their problem, but I always tried not to make the jury feel that I was being disrespectful.

A lot of lawyers are thinking about themselves, how they are going to present themselves, how they are going to seduce the jury or engage in a power play on the jury.

Ministers can do the opposite of that because they can tell people they’re going to go to hell, and that works with some people. Teachers can do the opposite of that with students sometimes, because they can say, “You’re going to fail.” You can’t do that with a jury. You have to find a way to be persuasive without those kinds of externalities working with you. You have to try to figure out what’s on people’s minds and how to tap into what’s on their minds, what are their concerns, what are they thinking about.

 

Q: What would you like your legacy to be?

A: There’s a quote that I’ve used several times. It’s a few verses from Thomas Gray’s “Elegy Written in a Country Churchyard,” and it goes, “The boast of heraldry, the pomp of power, and all that beauty, all that wealth e’er gave, awaits alike the inevitable hour. The paths of glory lead but to the grave.” I think there’s a lot of truth in that.

 

This interview was edited and condensed.

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