Reno Personal Injury Lawyer - Worksite Injuries

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

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

More Wierdness in Mack Trial

Steve Klearman — Fri, 30 Nov 2007 08:07:44 GMT

Yes, more wierdness in a case that's had it's share.

First, Mack stabs his wife to death and shoots a judge (always the best way to endear oneself to the legal community about to determine your fate).

Darren Mack flees, he's talked into coming back by the D.A. (of all people).

Darren Mack pleads guilty (before putting on a defense); now he's changed his mind, fired attorney Scott Freeman (Mack will have a hard time if he wants to claim ineffective assistance) and hired Laub and Laub.

What's wrong with this guy?

According to Martha Bellisle, writing for the Reno Gazette today, Mack dropped his legal defense team after pleading guilty to murder and attempted murder charges, and plans to file a motion to withdraw his guilty pleas, a source close to his family said Thursday.

The withdrawal motion has yet to be filed but was in the process of being crafted, the source said.

As of Wednesday, Scott Freeman, one of Mack's trial lawyers, had signed the substitution request but David Chesnoff had not.

William Routsis, a lawyer with the Reno firm of Laub and Laub, was to take over the case, the source said.

In a surprise move, Mack, 46, stopped his murder trail on Nov. 5, just as his lawyers were about to present the defense case and agreed to plead guilty to first-degree murder of his estranged wife, Charla, 39.

She was found stabbed to death in the garage of his upscale townhouse on June 14, 2006.

Mack also entered a conditional guilty plea on the attempted murder charge in the sniper-style shooting of their divorce judge, Chuck Weller.

Under the plea, Mack said he did not intend to kill the judge but acknowledged that the prosecution had enough evidence to convict him.

Neither Freeman nor Chesnoff could be reached for comment late Thursday. Special Prosecutor Robert Daskas also did not return phone messages.

Judge Douglas Herndon had scheduled sentencing Jan. 17-18 in Las Vegas, where he moved the trial after determining an impartial jury could not be found in Washoe County.

Mack faces life in prison with the possibility of parole after

20 years on the murder charge.

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

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

Binding Arbitration Bad for Consumers

Steve Klearman — Mon, 05 Nov 2007 12:52:22 GMT

There have been recent efforts by federal legislators to impose binding arbitration in a variety of contexts.

You may have never heard of Binding Mandatory Arbitration, but that would not prevent this unfair practice, visited on unsuspecting consumers, from destroying your life. Buried in the fine print of many consumer contracts for credit cards, new homes and cars are clauses that stack the deck against American consumers, forcing you to give up your rights to seek justice through the courts. And these contracts force you to surrender your rights before a dispute even occurs.

Binding Mandatory Arbitration prevents defrauded or wronged consumers from taking their cases to court. Instead, their cases are decided by arbitrators who are not bound by the rules that ensure consumers get a fair shake in the civil justice system. Their cases are never heard by a judge or jury and the arbitrators decision is usually impossible to appeal.

Currently, most Americans are bound by at least one Binding Mandatory Arbitration clause, often without their knowledge. Each day more home buyers, credit card users, insurance holders, and car buyers are forced to give up their constitutional right to have their case heard by a jury of their peers. So when powerful business interests take advantage of them, they are left with no recourse or remedy to recover their losses.

Do not get stuck the next time you apply for a credit card, buy a car or sign a contract for a new home. Do not let big corporations push you around.

Learn More About Binding Mandatory Arbitration
www.peopleoverprofits.org/bma

Originally posted at InjuryBoard by Steve Klearman

U.S. Companies Fighting Fewer Lawsuits

Steve Klearman — Tue, 30 Oct 2007 12:45:33 GMT

More news that suggests that we are less litigious rather than more. This from the American Association of Justice quoting the New York Times:

"U.S. companies are getting hit with fewer new lawsuits and initiating less litigation, according to a survey released on Monday. The poll of in-house law departments suggests corporate litigation may have slowed, although big companies still find themselves juggling plenty of court cases, particularly patent and product liability disputes. The fourth annual survey of in-house counsel at 250 major U.S. companies, was commissioned by law firm Fulbright & Jaworski LLP. The survey found 17 percent of respondents said their companies have not had to defend against any new lawsuits this year -- such as those filed by employees, consumers, shareholders, competitors or enforcement agencies -- up from 11 percent a year earlier that did not face a single new suit. Sixty-five percent of respondents said their company had initiated at least one lawsuit in the past year, down from more than 70 percent a year ago and 88 percent in 2004. Twenty-two percent said they expect to see the number of legal disputes their companies face increase over the next 12 months, compared with 33 percent last year, the survey found."
Reuters, New York Times 10/15/07

Originally posted at InjuryBoard by Steve Klearman

AB 483 Revises Procedures on Execution of Property

Steve Klearman — Mon, 29 Oct 2007 12:42:14 GMT

Assembly Bill No. 483 dated March 20, 2007 revises Nevada law regarding the execution of property and wages from a judgment debtor.

The bill makes personal property whose total value does not exceed $1,000.00 exempt from execution. It also exempts tax refunds from federal earned income credit or a similar state law from being garnished.

The original bill includes the proper forms for a notice of the writ of execution, a writ describing the property exempt from execution, and a description of how the judgment debtor can claim these exemptions.

AB 483 adds the above corrections to these forms. To view the full bill, please check here.

Originally posted at InjuryBoard by Steve Klearman

New Legislation on Sealing Records

Steve Klearman — Thu, 25 Oct 2007 12:34:00 GMT

This is more of my continuing series on new legislation in Nevada.

Assembly Bill 519 dated March 23, 2007 prohibits the district court from sealing a public record unless certain circumstances are met. For example, sealing the records may not have the purpose of concealing a public hazard and may not create a state of imminent danger to the public.

Before sealing a public record, the court also must hold a hearing, provide notice of such hearing to the parties and the public, and allow the parties to present evidence and briefs at the hearing.

To see the full assembly bill.

Originally posted at InjuryBoard by Steve Klearman