Vegas Litigator

You’ve arrived at the Courthouse, survived the line, and found the right courtroom (hopefully, before your scheduled appearance.)  What now?  It depends on why you are there and who you are with.  Today, I am only going to discuss what to do if you are a party (as an individual or representative of a party) at Court for a Civil, non-family court, Trial.

The types of cases I am talking about include personal injury cases, employment cases, cases involving property tights and other issues, cases involving issues between partners or owners of other business entities, and breach of contract cases.  A party is a person or entity (such as a corporation, governmental agency, or trust) named in a lawsuit.  All Parties’ names should be mentioned in the case caption and should be located at the calendar boards on the ground level of the Regional Justice Center and at the entrance to each Courtroom.

If you do not have an attorney (and I recommend having an Attorney whenever possible when you are in Court), you should make sure to check in with the Bailiff or th Court Clerk so the Court will know you are present for your matter.  From there, you’re on your own.  The Court will call your case and expect you to be prepared to present your case at Trial.

If you do have an attorney, you should find him or her to discuss any issues that may need to be discussed before the Trial.  Do not talk to the other Parties or their attorneys about the case outside the presence of your attorney.  You can be cordial and discuss the whether and similar matters, but not the case.  You should also not discuss the case loudly at anytime in the Courthouse as other Parties, their Counsel, or Jury members may be present.

Your Attorney should tell you where to sit.  My preference is to sit at my table nearer the middle of the Courtroom so I have easier access to the middle of the Courtroom or the Judge’s bench should I need to get up to speak.  We’ve all seen the Bailiff say “all rise” when the Judge comes into the Courtroom.  Make sure you give the Judge that Courtesy. The same holds true for the potential and chosen Jurors in the case.  Parties and their attorneys should always rise when the Jurors come and go.  As a Party, you should always wait until the Jurors have left the Courtroom before leaving.  It is important not to have any discussions with potential or actual Jurors about anything or discuss the case in their presence during the Trial.  If this happens, your case may have to be retried at some time in the future.

I provide my clients with a pencil and paper during the Trial for them to write down notes or issues they need to address.  There are microphones throughout the Courtroom.  They are very sensitive and will pick up a whisper.  If you don’t want comments being heard by the other side, the Judge or the Jury write them down, discuss them outside of the Courtroom or make sure the microphone at your table is off before you speak.  Your Attorney may not have the opportunity to discuss an issue with you right away – especially if it does not need to be addressed at that time.  Don’t be offended if he or she does not address your concern at that moment – attention may be focused on the court’s proceedings that need to be addressed to protect your rights.

In my experience, whether or not the Jury likes a Party (and particularly Plaintiffs who are to be given money) is an important factors in the Jury’s decision making process.  Civil Juries in Nevada typically range from 4 Jurors in short Trials to 6 or 8 Jurors in Short or Conventional Trials.  Believe me when I tell you that, as a group, he Jurors miss nothing.  Every action you take, every expression, every statement will be noticed by one or more of the Jurors.  As a result, clients and their attorneys should do everything to avoid making any statements or actions that will make Jurors see them in a bad light.  This has to be considered at all times when you are in and around the Courthouse.

The fact is that Jurors do consider whether or not they like the Parties in a case in making their final decisions and coming to a verdict.  I, as an attorney representing my clients, become an extension of them in the Jurors’ eyes.  My demeanor, actions and statements can effect how a Jury feels about my client as well as the client’s statements may effect the Jury’s decision.  Judges expect proper decorum in their courtrooms as well as respect for themselves, the Jurors, witnesses and opposing Parties and their counsel.  They are human and will react to any lack of respect they see.  As you can see, it is important to present yourself properly anytime you are near the Courthouse so as not to place yourself in a bad light in front of any potential or actual Jurors.

If a case doesn’t settle by agreement, arbitration, or mediation after a lawsuit is filed, the Parties end up at the Courthouse for a Trial. There are several courthouses in Clark County. The “main” Courthouse in downtown Las Vegas is called the Regional Justice Center. It is actually three Courts in one: Las Vegas Municipal Court, Las Vegas Justice Court and the Civil and Criminal Divisions of the Eighth Judicial District Court for Clark County, Nevada.

The Courthouse is divided into five main areas (located, roughly on the floors as listed): Municipal Courtrooms on the 5th and 6th floors; Las Vegas Justice Court Courtrooms on the 6th, 7th and 8th floors; Eighth Judicial District Court for Clark County on the 10th through 16th floors, Nevada; the Nevada Supreme Court (17th floor); and administration (the rest of the building). The floors are approximate due to the rapid expansion in Clark County Nevada and do not include some Courtrooms that are in the Phoenix Building across the street from the Regional Justice Center. There are four courtrooms per floor, designated “A” – “D”. I suggest checking the Courtroom’s location before getting on an elevator.

The Court Rooms in the Regional Justice Center have two basic set ups – each set up is a mirror of the other. Some Judges have modified the set up to better serve the legal process for their particular Courtrooms. A typical set up at the Regional Justice Center looks like this:

The Gallery is where anyone interested in watching Trials, Motions, or other activity in the Court Room sits. It’s also where Attorneys sit waiting for their turn to be called into the main part of the Court room. The line in the middle of the drawing is called “the bar” and is the entrance to the remainder of the Court Room – the part where all of the action takes place. This includes the witness stand, the Jury box, the Judge’s bench, the bailiff’s station, and the area where I work, including the Parties’ tables and the open area where I, as an Attorney, stand to address the Court, the Jury and the witnesses.

Other than the Judge and his or her staff, everyone enters from the back of the Court Room into the Gallery. No one is allowed beyond the Bar without the permission of the Court. Lawyers are “members of the Bar” since we work in the area beyond the bar. Where the Parties sit in the Court Room is established by tradition. In a Civil Trial, the Plaintiff normally sits closer to the Jury than the Defendant. In a Criminal Trial, the Defendant sits closer to the Jury than the Prosecution. The witnesses – whether they are Parties, lay witnesses who have factual information, or expert witnesses – testify from the witness stand. Witnesses address their answers to questions to the Judge if it a Bench Trial or the Jury if it is a Jury Trial.

I will continue this discussion in my next post.|

 The Nevada Legislature and the Nevada Supreme Court were impressed with the outcome of the Short Trial Program prompting them to institute a Short Trial Program for Jury Trials in the  Justice Courts.  Nevada Justice Court jurisdiction, set forth in  NRS 4.370, includes cases claiming no more than $10,000.00 in money damages.

The State Legislature enacted Nevada Revised Statute 67.060 in 2005.  That Statute enables the Nevada Supreme Court rules to fashion a Short Jury Trial Program for the Justice Courts.  NRS 67.060 (Adoption of rules and procedures by Supreme Court to limit length of trials) states:

1.  Except as otherwise provided in subsection 3, the Supreme Court shall adopt rules and procedures for conducting trials by jury in civil actions in the justice courts that are designed to limit the length of trials.

2.  The rules and procedures adopted pursuant to this section may provide for:

(a) Restrictions on the amount of discovery requested by each party;

(b) The use of a jury composed of not more than six persons and not less than four persons; and

(c) A specified limit on the amount of time each party may use to present his case.

3.  This section does not apply to:

(a) An action for the possession of lands and tenements where the relation of landlord and tenant exists, when damages claimed do not exceed $10,000 or when no damages are claimed.

(b) An action when the possession of lands and tenements has been unlawfully or fraudulently obtained or withheld, when damages claimed do not exceed $10,000 or when no damages are claimed.

(c) An action for the issuance of a temporary or extended order for protection against domestic violence.

(d) An action for the issuance of a temporary or extended order for protection against harassment in the workplace pursuant to NRS 33.200 to 33.360, inclusive.

(e) A small claims action brought under the provisions of chapter 73 of NRS.

(f) An action pursuant to NRS 200.591 for the issuance of a protective order against a person alleged to be committing the crime of stalking, aggravated stalking or harassment.

The Nevada Supreme Court, in turn, amended the Justice Court Rules of Civil Procedure to enact the Short Jury Trial program for Justice Courts.  JCRCP 39A, which became effective in July, 2005, states:

(a) Calendaring.  Unless otherwise stipulated to by the parties, or for good cause shown, jury trials shall be calendared, depending on judicial availability, to commence not later than 120 days from the date that a request for trial or scheduling order was filed.

(b) Reporting of Testimony.  There shall be no formal reporting of the proceedings unless paid for by the party or parties requesting the same.

(c) Time Limits for Conduct of Trial.  Plaintiff(s) and defendant(s) shall be allowed 2 hours each to present their respective cases unless a different time frame is granted by the court. Presentation includes opening statements, closing statements, presentation of evidence, examination and cross-examination of witnesses, and any other information to be presented to the jury or court, including rebuttal. Cross-examination of witnesses shall be attributed to the party cross-examining for calculation of time allowed. For the purposes of this rule, all plaintiffs collectively shall be treated as one plaintiff, and all defendants collectively shall be treated as one defendant.

(d) Pretrial Memorandum.  No later than 45 days before the scheduled jury trial, the parties shall file with the court, a joint pretrial memorandum. Before the deadline for filing the memorandum, the parties shall meet, personally or telephonically, to discuss and prepare the memorandum. The memorandum shall contain:

(1) A brief statement of the nature of the claim(s) and defense(s).

(2) A complete list of witnesses, including rebuttal and impeachment witnesses, and a description of the substance of the testimony of each witness.

(3) A list of exhibits.

(4) All other matters to be discussed at pretrial conference.

(5) All proposed jury instructions. Standard jury instructions should be taken from the Nevada Pattern Civil Jury Instruction Booklet unless a particular instruction has been disapproved by the Nevada Supreme Court. If a proposed instruction is taken from a source other than the Nevada Pattern Civil Jury Instruction Booklet, the proposed instruction shall include citation to, and a copy of, the statute, rule or case law supporting the proposed instruction. The court shall encourage limited jury instructions.

(6) All objections to proposed jury instructions.

(e) Evidentiary Objections.  No later than 30 days before the scheduled jury trial, the parties shall file with the court, and serve upon opposing counsel, all evidentiary objections to reports, documents or other items proposed to be utilized as evidence and presented to the jury or trial judge at the time of trial and all motions in limine. All oppositions to evidentiary objections or motions in limine must be filed and served no later than 20 days before the scheduled jury trial. No replies or supplemental pleadings are permitted.

(f) Experts.

(1) Form of Expert Evidence.  The parties are not required to present oral testimony from experts and are encouraged to use written reports in lieu of oral testimony in court.

(2) Use of Oral Testimony; Disclosure.  If a party elects to use oral testimony, that party must include the expert’s name on the witness list submitted with the pretrial memorandum under subsection (d) of this rule. At the justice’s discretion, oral testimony may be provided by telephone or other remote electronic means.

(3) Use of Written Report; Disclosure.  If a party elects to use a written report, that party shall provide a copy of the written report to other parties no later than 30 days before the scheduled trial. Any written report intended solely to contradict or rebut another written report must be provided to other parties no later than 15 days before the scheduled trial.

(4) Qualification of Expert Witness.  No later than 20 days before the scheduled trial, the parties shall file with the court and serve on each other any documents establishing an expert’s qualifications to testify as an expert on a given subject. There shall be no voir dire of an expert regarding that expert’s qualifications. The trial judge may rule on any disputes regarding the qualifications of an expert during the pretrial conference under subsection (g) of this rule.

(5) Cap on Recovery for Expert Witness Fees.  Recovery for expert witness fees shall be limited to $500 per expert.

(6) Scope of Rule.  For purposes of this rule, a treating physician is an expert witness.

(g) Pretrial Conference.  No later than 15 days before the scheduled trial, the parties shall have a conference with the trial judge to discuss all matters needing attention prior to the trial date. At the discretion of the trial judge, such conference may be conducted telephonically. During the pretrial conference, the judge may rule on any motions or disputes, including motions to exclude evidence, witnesses, jury instructions or other pretrial evidentiary matters.

(h) Evidentiary Booklets.  Parties shall create a joint evidentiary booklet that may include, but is not limited to, photographs, facts, diagrams, and other evidence to be presented. The booklet shall be submitted with the joint pretrial memorandum. Any evidentiary objections relating to the booklet shall be raised pursuant to Rule 39A(e) or shall be deemed waived.

(i) Attorney Fees and Costs.

(1) The prevailing party at a jury trial is entitled to all recoverable fees, costs and interest pursuant to statute or Rule 68.

(2) An award of attorney fees under subsection (i)(1) of this rule may not exceed a total of $3,000, unless recoverable attorney fees are governed by a written agreement between the parties allowing a greater award.

Justice Court Short Trials allow each party 2 hours to present its case including opening statements, direct and cross examination and closing arguments.  In District Court, each Party gets three hours. Unlike District Court (where the Court appoints a Pro Tempore Judge), the Justice Court Judges hear the Short Trials scheduled in their Departments.

Any Party may file a demand for Jury Trial in Justice Court pursuant to JCRCP 38.  Once filed, the case automatically falls into the Short Trial Rules set forth in JCRCP 39A.  Judge Zimmerman advised that each Judge may choose different start times for their Jury Trials.  In her case, Short Trials begin after lunch and are finished by 5:00 p.m.  This allows her to conduct her morning criminal and civil calendars and conclude a Short Trial in the time allotted by the Rules.  

I tried a case in Justice Court under the District Court Short Trial Rules in front of Judge Deborah Lippis by agreement with the adverse Counsel before the Legislature or Supreme Court approved Justice Court Short Trials.  This was about a week before Judge Lippis was scheduled to meet with Supreme Court Justices to discuss the use of Short Trials in Justice Court and allowed her to discuss the issues having conducted a trial under the Short Trial Rules.

I have had the opportunity to speak with Boulder City Justice Court Judge Victor Miller and Las Vegas Township Justice Court Judge Ann Zimmerman regarding the Short Jury Trial Program.  It is clear that the Program is effective, but does not get a lot of use as cases are either tried to the bench, in which case there is no Short Trial, or they settle prior to the scheduled Trial date.

As you can see, I have written several posts regarding the Nevada Short Trial program. I have been involved in over 25 Short Trials. In most of these cases, I have represented Plaintiffs injured in personal injury accidents. I have received the largest award in the history of the Nevada Short Trial Program on behalf of one of my personal injury clients. In that case, the Jury awarded my client $758,000.00 in damages for injuries she received in a car accident. The Driver who caused the accident had previously settled the case for her policy limits and the Trial was against my client’s own insurance company, Allstate Insurance seeking underinsured motorist benefits. Of course, I cannot guarantee that I can be as successful for any other client, but I do work hard to represent all of my clients.

I have recently been invited to speak as a faculty member in a seminar on the Short Trial Program in Nevada. That seminar, Breaking Down the Short Trial Program, is being produced by Lorman Education Services and will be held on March 19, 2009 in Las Vegas, Nevada. More information on this seminar can be found at Breaking Down the Short Trial Program.

There will be five speakers at the seminar. The other speakers will be speaking about:

• Overview, History and Evolution of the Short Trial Program;
• Judicial Ethics;
• Motion Practice;
• Admission of Expert Witness Testimony in Short Trials;
• Short Trial Procedure From the Commissioner; and
• How Best to Represent Your Client in a Short Trial Mediation.

I will be speaking about the Short Trial Program from a Litigator’s Perspective and the Pros and Cons of the Short Trial Program (also from a litigator and client’s perspective). I plan on taking the attendees through the process from the time the case has entered the Short Trial Program through the time of filing a Judgment with the Court. This will include:

• Pretrial Procedures;
• The Jurors and Juror Selection;
• The Trial, and
• Post-Trial Procedures.

I’m hoping to have some fun while I provide information to the attendees in an interesting way.