Appealing in Nevada

Judge, Please make opposing counsel wear nicer shoes...

cowdent@gtlaw.com (Tami Cowden) — Fri, 10 Jul 2009 13:33:52 -0800

That’s the gist of a Motion to Compel Defense Counsel to Wear Appropriate Shoes at Trial, filed last month in a personal injury case in Florida. It seems defense counsel Michael Robb has a habit of wearing a pair of loafers with holes in the soles, in aid of a tactic of presenting himself as a simple -- as opposed to slick-- attorney.

The motion states:

6. . . .Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so the holes in his shoes are readily apparent to the jury who are intently watching all counsel and the Court at that moment.

7. Then, during argument and throughout the case, Mr. Robb throws out statements like “I’m just a simple lawyer” with the obvious suggestion that Plaintiff’s counsel is not as sincere and down to earth as Mr. Robb.

8. Mr. Robb should be required to wear shoes without holes in the soles at trial to avoid the unfair prejudice suggested by this conduct.

Not surprisingly, the motion was denied. But I have to say, this practice beats the “I’m just someone who grew up in North Las Vegas” type of self-deprecation I’ve heard locally. I might even call it slick.

Not surprisingly, the motion was denied.

But I have to say, this practice beats the “I’m just someone who grew up in North Las Vegas” type of self-deprecation I’ve heard locally. I might even call it slick.

Attorney Robb, who has in the past refused offers of fancy shoes from other lawyers, denies it is a tactic, but simply likes the shoes because they are comfortable and he’s had good luck with them. See the Palm Beach Post story by Frank Cerabino here.

Above the Law posted the motion in full here.

Hat Tip to Lowing the Bar.

And with this post, I introduce a new weekly feature - WTF Friday. Enjoy.

Indigent defense caseload study reveals public defenders overworked, inadequately funded

cowdent@gtlaw.com (Tami Cowden) — Fri, 10 Jul 2009 13:15:23 -0800

I'm not sure a study was needed to determine this, but perhaps this makes it official.

The Supreme Court Indigent Defense Commission has received the study it requested of the indigent defense systems in Clark and Washoe Counties. The Court had previously issued performance standards for public defenders, and commissioned the study to determine whether caseload standards were necessary to insure compliance with performance standards. However, that task as assigned could not be performed, because the performance standards were not implement until April 2009, while the study was performed in December 2008. Instead, the study compared caseload standards employed by other jurisdictions to determine what standards could allow the performance standards to be met.

Nevertheless, the study, performed by the Spangenberg Group and the Center for Justice, Law and Society at George Mason University, determined that the public defender offices are far too inadequately funded to meet the standards already in place. The offices rely on the county for nearly all of their funding, and have too few lawyers, too little support staff, and too few resources to be able to achieve at the performance standards expected by the recent change. One chart shows that attorney staffing of the Clark County Public Defenders office should be increased by at least 32%, and as much as 82%, in order to achieve caseload standards comparable to other jurisdictions in the western U.S.

Download the study here.

CLE slackers beware!

cowdent@gtlaw.com (Tami Cowden) — Fri, 10 Jul 2009 13:08:59 -0800

The Supreme Court wants to crack down on lawyers who don’t keep up with their CLE obligations. In an order filed July 7, the Supreme Court ordered the Board of Continuing Legal Education to conduct a comprehensive review of Board and Supreme Court rules about CLE and issue a report with recommendations within 90 days. The Court will schedule public hearings in Carson City and Las Vegas within 30 days of filing the report. The Supreme Court will then accept, reject or amend the Board’s recommendations.

Noting a pattern of noncompliance, and a lack of penalties for attorneys who repeatedly fail to comply, the Court has asked the Board of Continuing Legal Education update its rules to address the “delinquent and habitually delinquent attorneys.” The Court wants increases in the fines for noncompliance increased, and automatic suspension of licenses lawyers who do not fulfill their CLE obligations after receiving a single notice of delinquency.

The CCBA has posted a copy of the order here.

Congratulations to Al Franken

cowdent@gtlaw.com (Tami Cowden) — Tue, 30 Jun 2009 14:50:46 -0800

Al Franken won the election as senator from Minnesota, the Minnisota Supreme Court ruled today. The court stated: Franken "received the highest number of votes legally cast" and is entitled "to receive the certificate of election as United States senator from the state of Minnesota."

His opponent, Norm Coleman, has conceded defeat, ending the legal challenges to Franken's election.

Franken's election means the Democrats have, in theory, a filibuster-proof hold on the Senate.

This is kind of like finally getting that present you were promised, 8 months after your birthday.

See stories:

Franken declared Senate winner, Coleman concedes

Al Franken: 'I can't wait to get started' in Senate

After 8 Months, Franken Wins Senate Seat in Minnesota

Self insured employers may recover from NIGA.

cowdent@gtlaw.com (Tami Cowden) — Fri, 26 Jun 2009 14:22:08 -0800

In MGM Mirage v. Nevada Ins. Guaranty Ass’n, The Nevada Supreme Court held that self-insured employers can seek reimbursement from the Nevada Insurance Guaranty Association (NIGA) for amounts that should have been paid by an insolvent excess insurance carrier. NIGA pays out insurance benefits to individuals and entities whose insurers have become insolvent., but not to insurers. NIGA had argued that because self-insured employers are treated as insurers under the workers compensation laws, NIGA had no obligation to pay out funds for excess insurance that the self-insured employers would have recovered from the insolvent excess carrier. The Court held that self-insured employers do not fall into the category of “insurer” for NIGA’s purposes, as they are not engaged in the business of insurance.

The 7-0 decision, issued June 26, 2009, was authored by Hardesty.

Easements may be moved without dominant owner's agreement

cowdent@gtlaw.com (Tami Cowden) — Fri, 26 Jun 2009 14:17:49 -0800

In St. James Village, Inc. v. Cunningham, the Nevada Supreme Court held that an easement can be relocated over the objection of the dominant estate owner, provided the new location reasonably preserves the value of the easement, and the original grant did not preclude relocation and did not specifically name the easement’s location.. The Court adopted § 4.8 of the Restatement (Third) of Property, which places focus of the easement on its purpose and utility, rather than its original location.

In so holding, the Court backed off of a statement in Swenson v. Strout Realty, Inc., 85 Nev. 236, 239, 452 P.2d 972, 974 (1969) asserting that relocation of an easement without agreement of the owners of both the dominant and subservient estate, was overbroad.

In the case at hand, the deed did set forth the specific location of the easement, the easement could not be altered without the permission of the dominant estate owner.

The 6-0 opinion, issued June 25, 2009, was authored by Hardesty, with Justice Pickering not participating

I'm still here

cowdent@gtlaw.com (Tami Cowden) — Fri, 26 Jun 2009 10:49:46 -0800

Things have been busy in my life lately, what with moving into a new house, and then a new firm. And then, of course, there is that work for clients.

So anyway, I have some catching up to do. Updates on the Nevada Supreme Court opinions will be forthcoming in the next few days.

No man may choose the judge in his own cause

cowdent@gtlaw.com (Tami Cowden) — Mon, 08 Jun 2009 12:09:51 -0800

That was the conclusion today of the U.S. Supreme Court’s ruling in Caperton v. A.T. Massey Coal Co.. The Court found that the failure of a judge on West Virginia’s highest court to recuse himself from a matter in which a sizable donor to the judge’s election campaign had in interest violated federal due process. I've mentioned this case before: Recusal required due to future campaign contributions?

The Court considered the facts from this case extreme. The donor had contributed $3 million to the judge’s campaign, an amount greater than all other donations combined, and made the donation after his company had been hit with a $50 million judgment. The recipient of the donations defeated the incumbent by fewer than 50,00 votes. The judge declined to recuse himself from hearing the matter, and the Court subsequently reversed the judgment on a 3 to 2 decision.

Justice Kennedy authored the 5-4 decision.

As we might have expected, Roberts, Scalia, Thomas and Alito dissented.

Regardless of actual bias, there will always be fears of bias when judicial elections can so easily be influenced by an infusion of cash donations to one candidate or another. In the Caperton decision, the Court noted the potential psychological effect of sizable donations upon the judge.

Such risks are considerably decreased under a merit selection system. Assorted changes in my own life (such as moving to a new firm, etc) have caused me to be remiss in applauding the Nevada Legislature for its second passage of the SJR2, which proposes an amendment to the Nevada Constitution to allow for merit selection and retention elections, rather than elections to select judges.

If the voters show the same wisdom, then the fear of bias resulting from donations to judicial campaigns won’t be an issue in Nevada. I doubt we have any examples from Nevada with the same extreme facts as in Caperton, but enlighten me if I am wrong.

Supreme Court Upholds Decision to Keep Culinary Measures off the Ballot

cowdent@gtlaw.com (Tami Cowden) — Thu, 28 May 2009 15:34:28 -0800

I’ve never had a case decided so quickly before!

Ruling less than two weeks after briefing was completed, the Supreme Court upheld Judge Barker’s decision holding that the ballot measures supported by the Culinary Union were properly kept off the ballot.

The Court’s decision, made on the briefs, agreed that the Initiative violated the single subjet rule and the referendum gave a misleading description. He Court also held that the requirements of NRS 295.009 apply to all initiatives and referenda, not just those with state wide effect.

However, the Court did rule that in the future, a city must place properly certified measures on the ballot, and make any challenges to their validity in a court action.

See the decision here, and the briefs here.

We represented the intervenors in this action. Briefing came fast and furious, at several levels, offering an opportunity to get to know some of the folks over at Lewis & Roca, who represented the City.

All in all, a fun case.

Another Nevada attorney blogger

cowdent@gtlaw.com (Tami Cowden) — Mon, 18 May 2009 10:11:30 -0800

Nevada attorneys haven't really jumped on board the blogging train. But I am very happy to welcome the latter to join the wonderful world of blawgs - Virginia Hunt, who blogs at the Nevada Workers' Compensation Law Blog.

Virginia will be offering news and updates on WC law, as well as info on the claims process.

Welcome, Virginia!

Happy Easter to Legal Peeps Everywhere

cowdent@gtlaw.com (Tami Cowden) — Sat, 11 Apr 2009 00:01:01 -0800

Celebrate the holiday with a view of the Marshmallow Peep dioramas inspired by the legal profession. Click here for the peep gallery.

Boyd School of Law Makes Top Ten List

cowdent@gtlaw.com (Tami Cowden) — Tue, 07 Apr 2009 11:41:45 -0800

In fact, BSL is Number 1 on the list. What kind of list? The top ten Mormon-friendly law schools.

The list was compiled by the blog News For the Mormon Legal Community. Factors included percentage of the student body that is LDS, costs of living, cost of tuition, proximity to a temple, and the U.S. News and World report rank of the school. The list considers only law schools outside of Utah. See the complete list here and an explanation of the methodology here.

It has been nearly 22 years since I was a law student. But I do not recall the University of Colorado ever asking my religion. Are schools asking such questions now? Where is such information published?

Hat Tip to Wild Wild law.

A Blawging Romance

cowdent@gtlaw.com (Tami Cowden) — Tue, 31 Mar 2009 12:28:26 -0800

Do bloggers look for love in the comments?

In my other life as a romance writer, I sometimes think about the concept of “cute meets” – interesting ways for a couple to meet. Just as in real life, romances frequently feature couples who met at work, or through friends, as well as the tried and true meets such as having feuding families or literally bumping into each other. However, I don’t think I’ve seen a romance where the couple was brought together by blogging.

But proving that truth is stranger than fiction, Ann Althouse, a University of Wisconsin law professor who has been blogging for years, recently announced her engagement to Meade, a frequent and long time commentator on her blog. While Meade has been commenting of Ann’s blog for about four years, the two met in person only in December.

The announcement was made in a post containing a series of photos, culminating in a shot of an engagement –placed on the pinkie finger.

Some legal bloggers have been rather snide about the event, but I am firm believer in happy endings. So I wish much happiness to the couple. But I don’t think this is a meet I’ll be featuring in one of my stories any time soon.

Hat tip to Legal Blog Watch

Interesting tidbits from Chief Justice Hardesty's State of the Judiciary Speech

cowdent@gtlaw.com (Tami Cowden) — Tue, 31 Mar 2009 10:55:31 -0800

Justice Hardesty gave the State of the Judiciary address to a joint session of the Nevada Legislature last week. Among the information presented.

-- specialty courts include drug, mental health, business, DUI, Women in Need and the Habitual Offender Prevention and Education (HOPE) Court

-- family law cases now comprise more than half of all civil cases

--construction defect and medical malpractice cases continue to impose considerable challenges in terms of time to resolve; the endoscopy cases, currently numbering over 445, are expected to create a case management crisis

--the traffic amnesty program at Las Vegas Township Justice Court brought in $5.4 million, with another $5.8 million promised through payment plans.

-- the Nevada Supreme Court reverted almost $2 million to the General Fund for fiscal year 2008, r

The CJ ended by asking the legislature to increase filing fees on civil cases to fund additional judges or provide for other judicial needs, to continue funding of the Senior Judge Program, and to approve a Constitutional amendment to create an Intermediate Appellate Court in Nevada. The latter was approved in the 2007 legislature, and if approved again this year, will go to the voters next year.

Download a copy of the speech from the Supreme Court website HERE or listen to the audio file HERE.

Latest Nevada Supeme Corut rulings

cowdent@gtlaw.com (Tami Cowden) — Mon, 30 Mar 2009 12:03:49 -0800

Last Thursday, shortly before I was overcome by the latest uprising of whatever persistent respiratory bug refuses to leave my body, the Nevada Supreme Court issued three published opinions.

In In re the Application of Shin, the Court determined that a pardon issued by the State Board of Pardons Commissioners does not remove the historical fact that a conviction occurred. It merely extends forgiveness, restores most civil rights, and removes most, but not all, legal consequences of a conviction. Because the pardon extended under Nev. Const. Art 5, § 14 does not create a civil right to expunction of the conviction, NRS 213.090, which sets forth the circumstances under which expunction may occur, does not infringe upon the constitutional pardoning power.

In Terracon Consultants v. Mandalay Resort, the Nevada Supreme Court held that theeconomic loss doctrine applies to preclude negligence-based claims against design professionals, such as engineers and architects, who provide services in the commercial property development or improvement process, when the plaintiffs seek to recover purely economic losses.

Not content with killing his wife, Darren Mack also attempted to weasel out of the settlement reached in their divorce proceeding. But his efforts were stymied at every effort in Mack v Mack. In this opinion, , the Court ruled that in a case involving the estate, judicial notice may be taken of the outcome of a murder trial in which the deceased stood to gain financially from the killer because of the close relationship between the murder trial and the benefits to which the deceased’s estate is entitled. The Court also ruled that an order may be entered nunc pro tunc to memorialize oral orders entered on the record. The Court further held that that nonmaterial terms could be altered to achieve the purpose of the settlement, and that an effective QDRO had issued during Charla Mack’s lifetime through the oral ruling issued prior to her murder. Finally, the Court held that ERISA does not preempt the Nevada slayer statute, which prevents a killer from financially benefiting from his crime. Darren was therefore required, as contemplated by the settlement agreement, to make a lump sum payment from his ERISA pension plan to Charla’s estate.

Definition of "substantial bodily harm" not vague

cowdent@gtlaw.com (Tami Cowden) — Mon, 09 Mar 2009 16:07:38 -0800

The Nevada Supreme announced one published opinion last week. In Collins v. State, the Court held that NRS 0.060(2)’s definition of substantial bodily harm as “prolonged physical pain” is not unconstitutionally vague. The Court held that “prolonged physical pain” is easily understood as “some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act.”

Meanwhile, kudos to the Court for doing away with the practice of putting all citations in the footnotes. They’ve been including citations in the text since the beginning of the year, and as a reader, I appreciate it. Footnotes have their place, and the Court has not eliminated them, but I personally find an opinion much more readable when I don’t have to keep checking the end to see the details of the cited authority.

Family Court Vacancies Filled

cowdent@gtlaw.com (Tami Cowden) — Thu, 05 Mar 2009 13:01:51 -0800

Governor Jim Gibbons today appointed William Gonzalez and Charles Hoskin to judgeships on the Eighth Judicial District Court Family Division in Clark County.

Mr. Hoskin will serve as Clark County Family Court Judge in Department E and Mr. Gonzalez will serve as Clark County Family Court Judge in Department F.

Recusal required due to future campaign contributions?

cowdent@gtlaw.com (Tami Cowden) — Wed, 04 Mar 2009 10:38:11 -0800

What will happen here in Nevada if the U.S. Supreme Court decides that due process requires a judge to recuse if a party had made a sizable donation to the judge’s campaign? While many Nevada judges do currently voluntarily recuse in such circumstances, they are not obligated to do so.

Arguments were heard yesterday in a US Supreme Court case that could made such recusal mandatory. Caperton v. A.T. Massey Coal Co. involved a West Virginia Supreme Court Justice who declined to recuse himself in the coal company’s appeal of a $50 million fraud judgment. The president of the coal company had donated $3 million to electing the justice, who cast the deciding vote to overturn the verdict. The facts of the case bear some similarity to the legal case underlying John Grisham's The Appeal.

The Petitioners asked the Supreme Court to adopt a rule holding that due process requires recusal by a judge in a case where a party had made a sizable donation to the judge’s election campaign. Such a ruling could lead to frequent recusals in Nevada cases at every level, especially if donations by counsel were included.

The difficulty of such a rule would be deciding when it applies. No one seemed to suggest that an automatic recusal was appropriate. Justice Scalia noted that the various amici in the case, including the Conference of Chief Justices, had offered an assortment of standards to be considered. Petitioners urged that a standard requiring consideration of the “probability of bias” be applied.

Comments during the argument on Caperton the Court suggest Kennedy, Stevens, Souter, Breyer, and Ginsburg could form a majority in favor of a rule that required recusal if there was a probability of bias.

However, the best line from the argument has to be Scalia’s question to Petitioner’s counsel: "You've been around Washington a long time. How far do you think gratitude goes in the general political world?"

But Scalia followed up that knowing remark with a statement that must surely be considered disingenuous, assuming that an elected judge would think:

that person contributed money to my election because he expected me to be a fair and impartial judge. And I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude. I should do what he expected me to do, and I have no reason to think he expected me to lie and distort cases in order to come out his way. What I expected he wanted me to do was to be a good judge, and I'm being faithful to him and I'm -- I'm showing my gratitude by -- by being a good judge

The increased money being spent on state court judicial election campaigns across the country has sparked considerable concern about the purchase of justice. But Massey Coal has rejected any comparisons of its situation with that laid out in John Grisham’s novel of last year, The Appeal, wherein a judicial candidate was handpicked with the pending appeal of huge tort judgment in mind. See the USA Today article Supreme Court case with the feel of a bestseller.

Read the transcript of the Caperton oral argument here. Find the briefs here.

Hat Tip to law.com. See its report here.

Nevada One Step Closer to Intermediate Appellate Court

cowdent@gtlaw.com (Tami Cowden) — Wed, 25 Feb 2009 12:22:07 -0800

Yesterday, the Nevada State Senate voted unanimously to approve SJR9, which would amend the Nevada Constitution to allow for the establishment of an intermediate appellate court for Nevada. If approved by the Assembly, the proposed amendment would go to the voters in 2010.

Kudos to the Senate for approving the plan. Despite the valiant efforts of the Supreme Court to keep abreast of the increased filings, they need help.

Nevada Supreme Court to Begin Webcasting Oral Arguments

cowdent@gtlaw.com (Tami Cowden) — Thu, 19 Feb 2009 16:18:49 -0800

Beginning March 2, the Nevada Supreme Court plans to webcast oral arguments live.

Go to the the court’s website www.nvsupremecourt.us for the webcast.

Previously the Court has conducted live webcasts only for cases deemed to be of particular public interest. However, the court has been posting audio files of oral arguments since September, 2007.