Reno Personal Injury Lawyer - Motor Vehicle Accidents

Update on Nevada Allstate Attorney Misconduct Case

Steve Klearman — Thu, 14 Feb 2008 10:00:57 GMT

In the ongoing squabble over Allstate defense attorney Phil Emerson's repeated misconduct in arguing cases at trial, the Nevada Supreme Court rendered its latest decision on January 17, 2008.

In its introduction to Lioce v. Cohen, 124 Nev. Adv. Op. No. 1, the Court stated:

On December 28, 2006, this court issued an opinion in these consolidated appeals.[2] The defendants in each of the four underlying personal injury cases were represented by the same attorney, who gave substantially the same closing argument on behalf of his clients at each trial. Asserting that defense counsel's closing arguments constituted misconduct, the plaintiffs sought new trials, with varying success.

In that opinion, we revised the standards under which district courts are to evaluate requests for new trials based on attorney misconduct. Next, we reversed the denial of the motions for new trials in Lioce v. Cohen and Lang v. Knippenberg, and affirmed the grant of new trials in Castro v. Cabrera and Seasholtz v. Wheeler. Additionally, we determined that the defendants' attorney's closing arguments in Castro and Seasholtz amounted to misconduct, and we remanded those cases with instructions to the district courts to calculate and impose monetary sanctions on defense counsel and his clients.[3] Finally, we referred defense counsel to the State Bar of Nevada for disciplinary proceedings. This petition for rehearing followed. Having considered the petition, answers, amici curiae briefs, and the replies, we conclude that en banc rehearing is warranted in part under NRAP 40(c). We therefore grant the petition in part, vacate our prior opinion in this matter, and issue this opinion in its place. On rehearing, we reach substantially the same conclusion as in our prior opinion, but we decline to impose monetary sanctions on defense counsel and his clients.

Because defense counsel's closing arguments encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them, we agree that they amounted to misconduct. In determining whether the district courts properly decided that this misconduct warranted new trials or not, we take the opportunity to revise our attorney misconduct jurisprudence. New trial requests based on attorney misconduct must be evaluated differently depending upon whether counsel objected to the misconduct during trial. When a party successfully objects to the misconduct, the district court may grant a subsequent motion for a new trial if the moving party demonstrates that the misconduct's harmful effect could not be removed through any sustained objection and admonishment. With respect to unobjected-to misconduct, we conclude that the district court may grant a motion for a new trial only if the misconduct amounted to plain error, so that absent the misconduct, the verdict would have been different. When ruling on a motion for a new trial based on attorney misconduct, district courts must make express factual findings, applying the above standards.

In these consolidated appeals, we conclude that in Castro and Seasholtz, the district courts did not abuse their discretion by granting the plaintiffs' motions for a new trial, and therefore, we affirm the district courts' orders in those matters. In Lang and Lioce, however, we are unable to ascertain from the record whether the district courts abused their discretion in denying the plaintiffs' motions for a new trial. Accordingly, we vacate those orders and remand those two matters for a new decision on the new trial motions, based on the standards announced today. In addition, we refer defense counsel to the State Bar of Nevada.

Originally posted at InjuryBoard by Steve Klearman

Allstate Gets the Boot in Florida

Steve Klearman — Fri, 18 Jan 2008 09:05:34 GMT

Here's a plug for Trial Guides at www.trialguides.com. The following interesting news comes from their enewsletter of today's date.

This week, Florida Insurance Commissioner Kevin McCarty announced that he is suspending Allstate Insurance companies from writing new insurance in Florida. McCarty's choice follows Allstate's refusal to comply with subpoenas served October 16 by the Office of Insurance Regulation.

The subpoenas seek disclosure of the McKinsey Documents, in which McKinsey & Co. instructed Allstate how to systematically underpay claims starting in the mid 1990s. The content of the documents is so explosive that Allstate has already ignored a $25,000 per day fine in Missouri for its ongoing failure to provide the McKinsey Documents in that state.

Trial Guides landmark book, From Good Hands to Boxing Gloves, is the only book that provides a full discussion, as well as reproductions, of the McKinsey documents. Written by the only lawyer who has obtained the McKinsey Documents unprotected, David Berardinelli, the book gives plaintiff lawyers the edge in personal injury and bad faith claims by disclosing the content of the McKinsey Documents and how you can use them in trying or settling your case. From Good Hands to Boxing Gloves has been the most widely publicized legal book of 2007, serving as a source for feature stories with CNN, PBS, BusinessWeek, Bloomberg, and many more. More media coverage is coming in 2008, following the suspension of Allstate in Florida.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents

Originally posted at InjuryBoard by Steve Klearman

Deleted Emails and Production

Steve Klearman — Wed, 26 Dec 2007 10:12:00 GMT

Ah the new and complicated world of how email production is handled by courts.

Scott Roseland, at cybercontrols (www.cybercontrols.net), cites to Benton v. Dlorah, Inc., 2007 U.S. Dist. D. Kan, Oct. 30, 2007. There, the plaintiff informed defendant at her deposition that she had deleted e-mails, and defendant filed a motion to compel plaintiff to produce relevant documents, to produce her hard drive, and for sanctions for spoliation of evidence.

Initially, the court ruled that the requesting party (defendant) had not adequately shown that the requesting party had refuted producing party's (plaintiff) assertions that she had produced all relevant documents, but allowed requestor to amend if further discovery demonstrated that producer had not produced all documents or "had spoliated relevant evidence." Id. at *3-*4.

On their subsequent motion to compel, requestors asserted that producer had admitted failing to produce a relevant e-mail, that she used her personal account instead of her work e-mail and admitted deleting "hundreds" of possibly relevant e-mails. Producer responded that requestor's request was not sufficiently tailored, that her personal computer contained personal and privileged information, and that the request constituted a "fishing expedition", not outweighing the harm to her.

The court ruled that producer must produce the relevant e-mails, which were responsive to requestor's request.

Deleting these e-mails, even if done in good faith and at a time before Plaintiff contemplated her legal action, does not necessarily remove the e-mails from her possession, custody or control. Deleted documents should be retrievable from her computer system and thus remain within in her control.

Id. at *7. The court ordered that if she could not produce the e-mails, "she shall produce for inspection her computer hard drive from which the deleted e-mails were sent. This will allow Defendants to use the services of a computer forensic specialist, if necessary, to retrieve them." Inspection of the drive would be limited to the subject of requestor's request. Id.

The court made no reference to any distinction between accessible and inaccessible data. In effect, deleted e-mails may now have moved into the realm of "accessible" data.

There is and will continue to be lack of uniformity in the way that courts handle production of email and other electronic data.

Originally posted at InjuryBoard by Steve Klearman

Nevada Researchers Work on Accident Prevention

Steve Klearman — Wed, 19 Dec 2007 07:02:50 GMT

Driving in Reno is not (nearly) as bad as driving in Southern California or New York City, but we still have our share of accidents.

A UNR civil engineer professor and some UNR students are now researching roads and intersections in the Reno area to make them safer and less accident prone. The project entails videotaping certain intersections and studying tire marks or warning signs in "fender bender" areas.

The students have also set up surveys online and at the Department of Motor Vehicles that ask the public to identify high accident areas. Once these areas are located, the students review statistical data with an aim toward alleviating the problem particular to the spot. Read more about this project in the Reno Gazette.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Steve Klearman

Avoid Personal Injury Cycling in Reno

Steve Klearman — Fri, 14 Dec 2007 09:51:53 GMT

Reno is still pretty dangerous and challenging for bicyclists. This is largely due to the need for a better route of paths, better marked paths and a need for a better continuation of the paths network. Does this mean that Reno is an unsafe place for bicyclists to ride overall? Not necessarily, but there are certain precautions that every bicyclist should take, aside from simply wearing helmets while riding.

According to Reno Personal Injury Blog Staff Writer, George Goodwin, being aware and giving signs to let the drivers know that you are there is a first big step. Being alert, careful and polite also helps the bicyclist avoid potential problems. Some drivers are really good and some are great about riding in the middle of their driving lane, but that is not the case with all Reno-area drivers. You may also find that crossing at an intersection is safer than trying to cross while on the road because it gives drivers a greater area of clearance to drive by. It's better in any case to be safe than sorry.

As far as safety precautions you should take while on your bike, having two lights, a front and a rear, is a good start. Anything you can do to make yourself more visible, especially at night and in the cold winter months, is a positive step toward not getting hit.

In addition, keeping your bike tuned up and in decent condition will serve you well and help you to avoid potential traffic accidents. Keeping the air in your tires full and taking your bike to a bicycle shop to get the chains oiled and keep the tires trued (in a straight line) will help you to keep your balance and allow you to shift your gears smoothly whenever you meet a hill. While you're there you can have the mechanics check out any other problems that they might find such as frayed wires, bent spokes and misaligned handlebars. Any one of these might be a minor headache, but could potentially erupt into a major problem if left unchecked.

Drivers who take the whole lane are just as irresponsible as bicyclists who ride in wavy patterns, seemingly drunk. Generally, it's difficult to always place the blame on one specific group, but in a specific sense it's usually the fault of one or the other of the two involved. To avoid accidents bicyclists need to make drivers more aware that they are there and be more attentive as well. Drivers should also be more attentive and if they can't move over they should slow down. In addition, drivers should recognize that bicyclists are vehicles in their own right and instead of attempting to force bicyclists to move out of their (the drivers') way, they should recognize that bicyclists riding responsibly in their own lane are the equivalent to a moving vehicle themselves such as the car the drivers are currently driving.

According to the Nevada Department of Motor Vehicles Nevada bicyclists should "obey the law, wear a helmet, wear brightly colored clothing and keep bikes in good repair." Additionally, bicycles ridden at night "must have: a white lamp in the front visible from at least 500 feet away, a red tail reflector visible in a vehicle's low beams from 300 feet away and reflective material on the sides of the bike visible in low beams from at least 600 feet away or a lamp visible from both sides from 500 feet away."

These basic precautions on the part of the bicyclist will help to ensure their safety by making them more visible to drivers. However, not all bicyclists follow these precautions. In order to help fight this negative trend, the Nevada Department of Public Safety has begun a program called the "Nevada Bicycle and Pedestrian Safety Education Program" whose mission is "is to prevent injuries to children and adults from bicycle and pedestrian crashes by training them with the knowledge and skills needed to be competent and safe in traffic." Their goal of administering traffic and bicycle safety programs through workshops and education programs will hopefully have a positive impact throughout not only Reno and Washoe County, but all of Nevada as well.

The NDPS's stated safety goals include increasing proper bicycle helmet use, increasing obedience to traffic laws by pedestrians, bicyclists or motorists, increasing walking or bicycle use as a substitute commute to school or work increasing physical activity and reducing negative environmental effects thereby promoting a healthier community, and increasing and packaging educational opportunities in such a way as to encourage [their] widespread application. How do they reach these goals? The Office of Traffic Safety (OTS) provides ongoing education and funding opportunities, as well as special events targeting safety. Their targets run the gamut of elementary school students on up to adults, in an attempt to educate all levels of bicyclists to greater levels of safety.

What does all of this mean for a bicyclist? Those bicyclists who are careful, aware and visible are doing the right thing. By keeping their bicycles tuned up and making themselves visible not only during the daytime, but also at night, they are presenting themselves to drivers and making a statement of "I am here. Please be aware of me and take the proper safety precautions." Hopefully with enough education, the proper use of safety equipment and the use of safety precautions Washoe County will become less of a "challenge" for bicyclists and become more of a bicycling haven.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Steve Klearman

Insurance Industry Hit With $11 Million Failure

Steve Klearman — Fri, 23 Nov 2007 15:36:18 GMT

The insurance industry's $11 million bellyflop against Referendum 67 was an election bright spot for ruling Democrats, who otherwise took their lumps from a frugal electorate that sent establishment ideas packing.

According to Curt Woodward, writing for the AP, the referendum, which allows triple damages in lawsuits alleging bad faith by insurance companies, spawned a lively campaign pitting the industry against trial lawyers.

Supporters said R-67 would give consumers a powerful tool to punish bad actors in the insurance industry. Opponents countered that it was an unnecessary magnet for unfounded lawsuits, and would drive up insurance rates.

But even though Washington voters displayed an anti-tax mood in other races around the state, they weren't swayed by the prospect of higher rates. R-67 cruised to victory, winning about 57 percent of the vote in unofficial returns through Wednesday afternoon.

Approve R-67 spokeswoman Sue Evans said the referendum fit squarely with voters' pocketbook-first mentality: if you pay for an insurance policy, you expect the company to play fair.

"Do people believe that insurance companies are going to be fair 100 percent of the time? Obviously, they don't," Evans said Wednesday. "And obviously, they expect to get what they pay for."

Reject R-67 spokeswoman Dana Childers sounded contrite, pledging to move past the bitter election and work with Democrats in Olympia. But opponents "remain convinced that Referendum 67 will result in more frivolous litigation and higher costs for consumers," she said.

The R-67 campaign was partially a proxy battle for the political parties, since trial lawyers often support Democrats and insurers are typically aligned with Republicans.

Supporters were also asking voters to endorse a plank of the Olympia Democrats' agenda, since the measure passed the Legislature on largely partyline votes and was signed into law by Democratic Gov. Chris Gregoire.

Democratic Insurance Commissioner Mike Kreidler -- up for re-election himself next year -- ended up with the sheen of a two-time winner and is clearly feeling his oats as a consumer advocate.

Kreidler, who successfully urged a double "no" vote on 2005's bruising medical malpractice initiatives, came out strong in favor of R-67 and won.

And even though his endorsement of R-67 in TV commercials prompted the opposition to question why Kreidler would "cede his authority to trial lawyers," Kreidler predicted a return to civility at the 2008 Legislature.

"I warned them in advance that if we were going to go to war, it was going to be difficult for me to do anything other than become active in support of the referendum," Kreidler said Wednesday.

"I would have been happier if we wouldn't have had to fight the battle at all," he said.

Originally posted at InjuryBoard by Steve Klearman

Northern Nevadans Need to Buckle Up

Steve Klearman — Thu, 22 Nov 2007 15:28:54 GMT

Reno and Sparks police have indicated that they will step up enforcement of seat belt use, at least through the end of November.

The Reno Gazette reports that of 30,521 passenger vehicle occupant fatalities nationwide last year, 15,523 were not restrained.

Further, of those who were not restrained, 75 percent were killed.

Buckle up.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Steve Klearman

Nevada Uninsured Drivers Higher Than Expected

Steve Klearman — Fri, 16 Nov 2007 10:42:44 GMT

According to an article by the Better Business Bureau dated October 19, 2007, the number of drivers across the United States, but especially in Nevada, without insurance is higher than would be expected.

In a recent study by the Insurance Research Council, one out of seven at-fault drivers is uninsured. In Nevada this number rises even more with seventeen percent of drivers uninsured. This can be compared with a fourteen percent national average.

While the article does not go into details about why this is the case, it does offer some suggestions for any driver to protect himself in the event of an accident.

When a motorist is uninsured, the victim of the accident has the responsibility to pay for everything himself. The BBB recommends that every driver gets uninsured motorist coverage on their policy so that he can be protected from the majority of these high costs. It also suggests getting rental car coverage so the motorist does not have to be without a vehicle while it is being repaired.

The last recommendation of the article is for all motorists to get underinsured motor vehicle coverage. In the event that an at-fault driver only has the bare minimum coverage on their policy, the victim of an accident may still have to pay for some of the damages himself. Underinsured motorist coverage pays the difference between the at-fault driver's limits and the actual costs of the damages. It also gives protection to a motorist who hits a pedestrian.

To see the full article, please click here.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents

Originally posted at InjuryBoard by Steve Klearman

Businesses Fighting Fewer Suits

Steve Klearman — Wed, 07 Nov 2007 13:08:37 GMT

The following comes from the American Associaiton of Justice quoting Sheri Qualters at the National Law Journal:

American businesses are filing and fighting fewer lawsuits, according to Fulbright & Jaworski's fourth annual Litigation Trends Survey. Seventeen percent of respondents have not defended a lawsuit in the past year, compared with 11% in the prior year. The rate of corporations bringing at least one new lawsuit dropped to 65%, compared with more than 70% in the prior year and 88% in 2004. Only 22% of in-house counsel expect their companies to be involved in more legal disputes during the next year."

Originally posted at InjuryBoard by Steve Klearman

Why Binding Arbitration Can Forfeit Your Rights

Steve Klearman — Tue, 06 Nov 2007 12:56:17 GMT

Yesterday I blogged on some of the negative aspects of binding arbitration. Here's more information on why this often misunderstood form of alternative dispute resolution can be problematic.

Buried in the fine print of most consumer contracts - such as credit cards, insurance plans and car deals - is a clause, which waives the buyer's constitutional right to trial by jury. These contracts mandate that consumers give up their rights before a dispute even occurs - this is called "mandatory, binding, pre-dispute arbitration." Arbitration was conceived as an informal, expedited process for resolving routine disputes between businesses. But when it is imposed on a weaker party, such as a consumer, arbitration can be used to defeat valid claims. Arbitration has several unique characteristics that stack the deck against consumers, making it harder for individuals to prevail in a dispute with a business.

Costs are high:An injured party must pay steep filing fees just to initiate a case--seldom less than $750. These fees do not cover the arbitrator's hourly charges, which are generally in the range of $200 to $300 per hour, split between the parties. All these fees must be deposited in advance, and almost always amount to thousands of dollars. Because the injured person has usually sustained a serious loss in the dispute with the business--foreclosure on a home, firing from a job, denial of medical care--most individuals covered by an arbitration clause cannot afford these costs and are forced to drop their cases.

Biased Arbitrators: Even though arbitrators are supposed to be impartial, they are often biased toward business, since only businesses will be repeat users of a particular arbitrator. If an arbitrator knows that a business may use them again and again, they are inclined to rule in their favor.

Limited discovery: Discovery is the process by which parties in a legal dispute obtain information and evidence in the possession of their opponent or third parties. In arbitration, discovery is a privilege, not a right, and many businesses draft arbitration clauses to severely restrict the consumer's ability to obtain necessary evidence. Moreover, since arbitrators do not have the power to enforce subpoenas, claimants must sometimes file lawsuits to get compliance--defeating the purpose of arbitration.

Prohibition of class actions: Nearly every arbitration clause prohibits participation in class action lawsuits. Class actions are the only effective remedy for wide-scale scams that rip off individual consumers or farmers in small amounts. Individuals do not have the time or resources to recognize, investigate, or prove the existence of such fraudulent practices.

Inconvenient locations: Arbitration clauses often require that hearings be held in a location inconvenient to the injured consumer or worker. Individuals may have to bear the cost of long-distance travel to have their case heard. For example, the Internet auction site e-Bay requires its customers to travel to its home turf of San Jose, California, to arbitrate any dispute.

One-way requirements. Most arbitration clauses require only the weaker party (the consumer, employee, or franchisee) to arbitrate his or her claims, while allowing the dominant party (the corporation) to sue in court on its claims. Thus, a sexual harassment victim can be forced to arbitrate a discrimination claim against a former employer, but if the employer sues to stop her from joining a competitor, the employer's claims are heard in court.

No public record. While proceedings and records of the courts are open to the public, most arbitration clauses and provider organizations require that proceedings be kept confidential. As a result, only the businesses that impose arbitration can track past decisions and know which arbitrators have ruled for them. Public discussion of the fairness of an arbitration ruling is discouraged, even if the case raises policy issues of wide concern. Moreover, arbitration sets no legal precedents to guide companies' future conduct.

Limited judicial review. Parties are allowed only limited judicial review of an arbitration award. A decision may only be overturned when there is fraud or "manifest disregard of the law." This is a very high hurdle to overcome because arbitrators are not required to issue written findings of fact or legal conclusions. Oddly enough, courts will refuse to hear appeals of arbitration decisions even when both sides have agreed to let a court do so!

Limited remedies. Courts can provide a range of remedies that are not available to a claimant in arbitration. Injunctive relief--a court order compelling the offending party to do something, or prohibiting that party from taking some action--cannot be obtained through arbitration. Arbitrators often split the difference between the two sides in awarding damages instead of determining the true costs of injuries. As a result, arbitration awards to consumers and employees are substantially lower than court awards.

Information for this blog comes from http://www.peopleoverprofits.org

Originally posted at InjuryBoard by Steve Klearman