Archive for the ‘Trials’ Category

One Good Change Deserves (Needs) Another

In 2015, the Nevada Legislature raised Nevada Justice Courts’ Jurisdictional limit from $10,000.00 to $15,000.00 effective on January 1, 2017. This statute requires any cases filed until December 31, 2016 seeking damages up to $10,000.00 should be filed in Justice Court. The Statute, as amended, will require that any cases filed on or after January 1, 2017 seeking damages up to $15,000.00 should be filed in Justice Court.

An issue this brings up is when should a case seeking damages between $10,000.00 and $15,000.00 be filed? Attorneys and their clients should analyze which Court will give them better advantages to determine if they should file before or after the January 1, 2017 if they fall within this range of damages and the decision will not be effected by the relevant Statute of Limitations.

NRS 4.370(a) governs Justice Courts’ Jurisdictional limits. For cases filed until December 31, 2016, it states:

For cases filed on or after January 1, 2017, it states:

It all seems plain and simple until you look to a Rule which governs Pleadings in Nevada. One of the statements in Nevada Rules of Civil Procedure requires Complaints filed in Nevada District Courts to aver Jurisdiction in that Court. Specifically, the NRCP 8(a) states:

Where a claimant seeks damages of more than $10,000, the demand shall be for damages “in excess of $10,000” without further specification of amount.

This rule requires the Plaintiff to allege the Jurisdictional basis for a case being heard by the District Court while forbidding her from alleging a specific amount of damages in excess of the Jurisdictional limit for Justice Courts. A District Court Judge could dismiss a Complaint or require a Plaintiff to amend her Complaint if she alleges a specific amount in excess of $10,000.00

I have checked the Nevada Supreme Court’s website and do not see any changes, or proposed changes to NRCP 8(a) that would amend the required Jurisdictional Statement to comport with the new Jurisdictional limit of Juste Courts. Crafty counsel could take advantage of this inconsistency.

If a Plaintiff drafts her Complaint to comply with NRCP 8(a), Defense Counsel could file a Motion to Transfer Jurisdiction to Justice Court pursuant to NRS 3.221 since the claim for damages will be “in excess of $10,000.00 which falls within the Justice Courts’ Jurisdiction. This may turn out unsuccessful and a waste of the Court’s time, but some attorneys and their clients won’t have a problem doing so.

On the other hand, if the Plaintiff files her Complaint stating that the case has a value in excess of $15,000.00 to demonstrate that the District Court has Jurisdiction, Defense Counsel can file a Motion to Dismiss citing a violation of NRCP8(a) as currently written.

While I have not see it yet, I am sure that the Nevada Supreme Court Justices will resolve this inconsistency to prevent gamesmanship by Counsel and their clients from taking advantage of a technicality and wasting valuable Court time and resources.

Parties Should Have a Right to Know if Jurors Have Had Any Dealings with, or Knowledge of, Arbitrators Involved in Their Cases

I recently represented a victim of a slip and fall personal injury case in a Short Trial.  I have done many Short Trials over the years and noticed that something was missing at this most recent Trial – asking the Jury if they are familiar with the Arbitrator who rendered the Arbitration Award.

First a little background…..

In Nevada, cases with an expected value of less than $50,000.00 are usually submitted to Arbitration for a ruling by an Arbitrator.  If either Party is unhappy with the Arbitrator’s Decision, they can file a Request for Trial De Novo placing the case into either a conventional Trial or Short Trial.  During the Trial, the Jury is given evidence of the Arbitrator’s Award pursuant to NRS 38.259. That award includes the Arbitrator’s name and signature and will be included in the evidence the Jury considers as it deliberates.

As you may have seen on televised trials, movies or TV shows, Parties and their Attorneys are allowed to ask Jurors questions to help them choose a Jury that will be fair and impartial.  This is known as Jury Voir Dire and will be addresses in detail in another blog post. In my experience, Judges ask a set of basic questions prior to the Parties being allowed to question the Jurors as a group and individually.  Among those questions, the Judges ask if any of the Jurors are familiar with the Parties, their Attorneys, any of the witnesses who may be called, and, in personal injury cases, any of the physicians who treated the Plaintiff who is suing for injuries cased by an accident.

Now to the issue…..

In  all of the Trials I have done where the case had previously been heard by an Arbitrator, I have never seen/heard the Jury asked if they were familiar with the Arbitrator in a case.  I think this question has simply been overlooked.  It should be asked of every Jury Panel where a case had been submitted to an Arbitrator and the Arbitrator’s name and Award are disclosed the the Jury.

NRS 38.259 requires a Jury Instruction be given to the Jury which includes the language:

The findings of the arbitrator may be given the same weight as other evidence or may be disregarded. However, you must not give those findings undue weight because they were made by an arbitrator, and you must not use the findings of the arbitrator as a substitute for your independent judgment. You must weigh all the evidence that was presented at trial and arrive at a conclusion based upon your own determination of the cause of action.

This is all fine and well, but what about the case where a Juror may not be able to give the Award the same weight as the other evidence? A Juror may know that the Arbitrator has strong leanings in a type of case.  Since I work in personal injury representing victims of personal injury accidents, I can imagine a case where an Arbitrator has strong feelings for or against these cases.  Suppose an Arbitrator is a Defense Attorney who believes all personal injury cases are made up or exaggerated and a potential Juror is familiar with that Arbitrator.  If the Juror has good feelings about that Arbitrator he may give the Award great weight and ignores the rest of the evidence.  If the potential Juror has strong negative feelings towards the Arbitrator (if, for instance, he was the adverse attorney involving the potential Juror), she may want to give a verdict strongly contradictory to the Arbitrator’s Award to “show him.”  Parties and their Attorneys need to know whether or not any familiarity with an Arbitrator will influence the potential Juror’s ability to be fair and impartial and the Judges should be asking Jurors to disclose this information.

Technology in the Courtroom – Can it Backfire?

Technology is great.  I love it and have lots of excess toys.  When I travel, I carry a laptop, an iPad, a Kindle, an Android Tablet and my Android phone.  I have carried in my backpack up to 7 ways to connect to the internet.  But, recently, I did a completely NO tech Short Trial in a car accident case.  I mean old fashioned.

No overhead or elmo projectors.

No slide show.

Nothing but myself, my client, and paper.

And, I won.

The Defendant’s attorney used a slide show during his opening and closing. He used the elmo to enlarge highlighted exhibits.  He worked well with the technology, but it seemed to leave him without the ability to improvise and leave his preplanned opening and closing.  While I understand the need to have a theme and plan how to present a case, Attorneys should also be able to be flexible and improvise when necessary.

During his opening statement, Defense Counsel noted that it only took 1.5 hours to replace my client’s truck bumper and that my client’s treatment was much longer than that.  I took note and used that comment in my closing: “Wouldn’t it be nice if people could just go and get a new part bolted on when one is damaged? Unfortunately, we can’t.  We take time to be treated and heal.

In closing, Defense Counsel showed a slide of a teeter totter and pointed out that he had to explain to his son that, due to their difference in size and weight, they could not ride the teeter totter together.  In my rebuttal argument, I used his example to show that bigger/heavier always wins.  It wins in football. And it wins when a person’s body, such as my client who can’t possibly weight more than 150 pounds, gets thrown around by two trucks colliding into each other with enough force to bend two solid steel bumpers.

The Nevada Short Trial Program causes a problem with technology since there is little, if any, time to modify slides as can be done in longer trials.  There was just no time to change the presentation. A choice had to be made: use technology, but understand its limitations; or do without and risk the jury not following the case. My case was simple and done in a day so the Jury world nor get lost and I could present my case with flexibility to adjust to the averse attorney’s presentation.

Trial Preparation – Time to Get Ready

My next Trial starts next week.  I am representing a victim of a personal injury accident who was injured when a grocery store employee struck my client in the ankle with a row of shopping carts.  As a result, my client was injured and, eventually, needed surgery to repair his ankle.

This case is ready to go.  

The Exhibit books are all printed with the exception of some minor changes I will be coordinating with Defense Counsel. My outline is all set and my client has been prepared, although we may meet again before he testifies just to make sure he is comfortable on the stand.

I know that I need to be fully prepared when I represent clients in personal injury lawsuits.  

The insurance defense industry has spent billions on its campaign to fend off legitimate lawsuits such as this one.  They are willing to spread mis-information in an attempt to harm all those already hurt by their insureds in injury accidents.  So, I must be careful in picking a Jury that has not been infected with this Defense oriented bias.

 Once the Jury is picked, I have to present my case in a concise and efficient manner while giving them all of the facts.  Not side of the case consists of medical and wage loss records as well as the testimony from my client and two of his treating physicians.  In addition to the normal preparation, we do not have sufficient Court Rooms in our Clark County, Nevada District Courthouse to allow the Judges to have their own Court Rooms.  That leaves us having to use partial days for Trial and makes it more difficult to coordinate the testimony of the various parties – especially doctors who have their own busy schedules caring for their patients.

 I’m nearly ready and, although I always feel as if something is missing, will be ready to start Trial on Monday.

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