Archive for: 2016

We have all had a discovery ruling go against us from time to time.  What is the procedure for objecting to a ruling by a Discovery Commissioner?  First, make certain that you ask the Commissioner for a stay under EDCR 2.34(e) if you know that you will be objecting to the ruling.  Failing to ask for a stay means that while you are waiting for consideration of your objection, your client must comply with the order.  NRCP 37(b)(2); Bahena v. Goodyear Tire & Rubber Co.,  235 P.3d 592, 597 (2010).

A timely objection must be filed within 5 days of being served with the recommendations.  NRCP 16.1(d)(2); EDCR 2.34(f) (deeming the report received 3 days after placement in an attorney’s folder in the clerk’s office).

 

See elements for other claims at the Nevada Law Library

OR APPROPRIATION OF THE NAME OR LIKENESS OF ANOTHER

In Nevada, the elements for a claim of invasion of privacy or appropriation of the name or likeness of another are:

  1. Defendant uses the name or likeness of a non-famous person;
  2. Without the permission of the person;
  3. The misappropriation of the person’s likeness or identity is a personal injury;
  4. Or gives publicity to a matter concerning the private life of another where the matter is of the kind that would be highly offensive to a reasonable person and it not of legitimate concern to the public; and
  5. Plaintiff is entitled to compensation for damages for mental anguish and embarrassment for the unwanted use of the private person’s name or image.

Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1448 (D. Nev. 1994); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1278 (Nev. 1995); Montesano v. Donrey Media Grp., 99 Nev. 644, 668 P.2d 1081, 1084 (1983), cert. denied, 466 U.S. 959, 104 S. Ct. 2172, 80 L.Ed.2d 555 (1984) (citing Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716 (1980); Restatement (Second) of Torts § 652D (1977).

 

See elements for other claims at the Nevada Law Library

Harriett E. Cummings, Esq., in her article entitled “The Role and Need for Settlement Judges in Appellate Cases” published in the Nevada Lawyer Magazine, explains that the Nevada Supreme Court Settlement Judges “aren’t traditional judges, because they do not decide the outcome of the matter on appeal. Rather, they assist the parties in communicating their positions and interests to each other, in order to promote understanding, reconciliation and a mutually acceptable solution to their dispute. Mediation provides the parties an opportunity to resolve their case themselves, guided by the settlement judge’s expertise in the mediation process.”

Cummings highlighted examples of how the program has settled over 50% of all matters referred to the program, a total of almost 5,000 cases that otherwise would have had to be decided by the Nevada Supreme Court.  One settlement judge commented the position “is one of the most rewarding aspects of my law practice. It is gratifying to step out of my usual role of advocate, to act as a quasi-judicial mediator — helping parties revisit their interests and positions in the litigation where one side has lost (and appealed) and one side has won. I enjoy the challenge of helping parties and their counsel see the benefit of creating a resolution to their dispute, and agree to a settlement, and thereby avoid the time and expense of the appellate process and further litigation. I like to think it’s a win-win for all involved: for the parties and for the courts.” Read the rest of the article here.

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Is Your Arbitration Agreement Enforceable in Nevada?

UPDATE NOTATION:  See Is Your Arbitration Agreement Void, or Enforceable Nevada? for an important update on this topic.

In 2013, Nevada’s legislature passed a law which holds that contracts failing to provide “specific authorization” that the parties have “affirmatively agreed” to an arbitration provision are “void and unenforceable.”  The law, Nevada Revised Statute 597.995, does not apply to collective bargaining agreements.  The legislature does not explain what is required in order to provide “specific authorization,” but presumably, a separate initial of the parties next to the arbitration provision would suffice to satisfy a tribunal.

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In Nevada, the elements for a claim of invasion of privacy by intrusion upon the seclusion of another are:

  1. An intentional intrusion (physical or otherwise);
  2. On the solitude or seclusion of another;
  3. That would be highly offensive to a reasonable person; and
  4. Causation and damages.

Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1448 (D. Nev. 1994); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1278 (Nev. 1995); M & R Investment Co. v. Mandarino, 103 Nev. 711, 748 P.2d 488, 493 (1987).

 

See elements for other claims at the Nevada Law Library

The following abstract explains Nevada’s parol evidence rule and its application to claims made in her courts.

Parol evidence is inadmissible “[w]hen parties reduce a contract to writing, all prior oral negotiations and agreements are merged in the writing, and the instrument must be treated as containing the whole contract, and parol [evidence] is not admissible to alter its terms.” Cage v. Phillips, 21 Nev. 150, 26 P. 60 (1891).   The parol evidence rule is based on the principle that a written contract is more reliable than oral testimony when determining the terms of an agreement. Michael B. Metzger, The Parol Evidence Rule: Promissory Estoppel’s Next Conquest?, 36 Vand. L. R. 1383, 1386-87 (1983) (hereinafter “Metzger”). (more…)

Nevada’s Supreme Court’s Settlement Program is an Alternative Dispute Resolution (ADR) program that was started in 1997.  The Supreme Court boasts that 52% of the cases assigned to the program have settled. Considering that these are cases where the parties are so entrenched that they have taken a matter to trial and are on appeal, that record is quite impressive.  The program is governed by Nevada Rules of Appellate Procedure, Rule 16.  It provides:

RULE 16.  SETTLEMENT CONFERENCES IN CIVIL APPEALS

      (a) Assignment of Case to Settlement Conference Program.  Any civil appeal in which all parties are represented by counsel and that does not involve termination of parental rights may be assigned to the settlement conference program. The settlement conference program administrator shall determine whether to assign an appeal to the settlement conference program. The settlement conference shall be presided over by a qualified mediator who has been appointed as a settlement judge by the Supreme Court.

      (1) Settlement Notice; Suspension of Rules.  The clerk shall issue a settlement notice informing the parties that the appeal will be assigned to the settlement conference program. The settlement notice automatically stays the time for filing a request for transcripts under Rule 9 and for filing briefs under Rule 31. The notice also stays the preparation and filing of any transcripts requested under Rule 9.

      (2) Assignment Notice.  The clerk of the Supreme Court shall issue an assignment notice informing the parties that a case has been assigned to the settlement conference program and of the name of the settlement judge.

      (3) Service.  Papers or documents filed with the Supreme Court while a case is in the settlement program shall be served on all parties and the settlement judge.

      (b) Early Case Assessment.  The settlement judge shall conduct a pre-mediation telephone conference with counsel and file an Early Case Assessment Report within 30 days of assignment. In that report, the settlement judge shall inform the court whether the case is appropriate for the program or should be removed from the program. If the settlement judge reports that the case is not appropriate for the settlement conference program, the court may remove the case from the program and reinstate the timelines for requesting transcripts under Rule 9 and briefing under Rule 31.

      (c) Scheduling of Settlement Conference.  Unless the Supreme Court removes the case from the settlement conference program under Rule 16(b), the settlement judge shall schedule a settlement conference within 90 days of assignment. If the case involves child custody, visitation, relocation or guardianship issues, the conference shall be scheduled within 60 days of assignment.

      (d) Settlement Statement.  Each party to the appeal shall submit a settlement statement directly to the settlement judge within 15 days from the date of the clerk’s assignment notice. A settlement statement shall not be filed with the Supreme Court and shall not be served on opposing counsel.

      A settlement statement is limited to 10 pages, and shall concisely state: (1) the relevant facts; (2) the issues on appeal; (3) the argument supporting the party’s position on appeal; (4) the weakest points of the party’s position on appeal; (5) a settlement proposal that the party believes would be fair or would be willing to make in order to conclude the matter; and (6) all matters which, in counsel’s professional opinion, may assist the settlement judge in conducting the settlement conference. Form 10 in the Appendix of Forms is a suggested form of a settlement statement.

      (e) Settlement Conference.  The settlement conference shall be held at a time and place designated by the settlement judge.

      (1) Attendance.  Counsel for all parties and their clients must attend the conference. The settlement judge may, for good cause shown, excuse a client’s attendance at the conference, provided that counsel has written authorization to resolve the case fully or has immediate telephone access to the client.

      (2) Agenda.  The agenda for the settlement conference and the sequence of presentation shall be at the discretion of the settlement judge. A subsequent settlement conference may be conducted by agreement of the parties or at the direction of the settlement judge.

      (3) Settlement Conference Status Reports.  Within 10 days from the date of any settlement conference, the settlement judge shall file a settlement conference status report. The report must state the result of the settlement conference, but shall not disclose any matters discussed at the conference.

      (4) Settlement Documents.  If a settlement is reached, the parties shall immediately execute a settlement agreement and a stipulation to dismiss the appeal, and shall file the stipulation to dismiss with the clerk of the Supreme Court. The settlement agreement does not need to be filed with the Supreme Court.

      (f) Length of Time in Settlement Conference Program.

      (1) Time Limits.  Within 180 days of assignment, the settlement judge must file a final settlement conference status report indicating whether the parties were able to agree to a settlement. For cases involving child custody, visitation, relocation or guardianship issues, a final settlement conference status report must be filed within 120 days of assignment.

      (2) Extensions.  Upon stipulation of all parties or upon the settlement judge’s recommendation, the settlement program administrator may extend the time for filing a final settlement conference status report. In cases not involving child custody, visitation, relocation or guardianship issues, the time may be extended for an additional 90 days. In cases involving child custody, visitation, relocation or guardianship issues, the time may be extended for an additional 60 days.

      (3) Reinstatement of Rules.  At the discretion of the settlement program administrator, the timelines for requesting transcripts under Rule 9 and filing briefs under Rule 31 may be reinstated during any extension period granted under Rule 16(f)(2).

      (g) Sanctions.  The failure of a party, or the party’s counsel, to participate in good faith in the settlement conference process by not attending a scheduled conference or not complying with the procedural requirements of the program may be grounds for sanctions against the party, the party’s counsel, or both. If a settlement judge believes sanctions are appropriate, the settlement judge may file a settlement conference status report recommending the sanction to be imposed and describing the conduct warranting that sanction. Sanctions include, but are not limited to, payment of attorney’s fees and costs of the opposing party, dismissal of the appeal, or reversal of the judgment below.

      (h) Confidentiality.  Papers or documents prepared by counsel or a settlement judge in furtherance of a settlement conference, excluding the settlement conference status report, shall not be available for public inspection or submitted to or considered by the Supreme Court. Matters discussed at the settlement conference and papers or documents prepared under this rule shall not be admissible in evidence in any judicial proceeding and shall not be subject to discovery.

      [Added; effective February 26, 1997; as amended, effective April 18, 2006.]

The Supreme Court explains the program on its website as follows:

“MEDIATION

The ADR method of the program is MEDIATION. Mediation is a process in which an impartial third party, a Settlement Judge, assists the parties in considering options for settlement of their dispute.  The settlement judge doesn’t decide the outcome of the case, but rather assists the parties in communicating their positions and interests in order to promote understanding, reconciliation, and a mutually acceptable solution to the dispute. In so doing, the settlement judge may ask questions, help define issues, and assist in the generation and evaluation of settlement proposals.  Mediation provides the parties with an opportunity to resolve their case themselves.

SETTLEMENT JUDGES

Settlement Judges (biographies) are appointed by the Supreme Court based on an evaluation of the applicant’s education, training and experience. Settlement judges are required to have a high level of training and experience in mediation.  Most settlement judges also have significant legal experience as practicing attorneys, including specialized experience in the unique issues that arise on appeal.  All settlement judges’ professional biographies are available on this web site.

WHAT TO EXPECT WHEN A CASE IS ASSIGNED TO THE PROGRAM

Generally, any civil appeal, except those in which any party is not represented by an attorney or which involves termination of parental rights, may be referred to the settlement program. The clerk’s office sends out a notice indicating that an appeal has been referred to the program.  The issuance of the referral notice automatically stays the time for requesting and preparing transcripts and for filing briefs.  If the appeal is accepted into the program, another notice will be issued informing counsel of the settlement judge assigned to the case. If the appeal is not accepted into the program, then a notice setting forth the deadlines for requesting transcripts and filing briefs will be issued.

The settlement judge will conduct a premediation telephone conference with all counsel. This conference is held to assist the settlement judge in evaluating whether the case is appropriate for mediation. If the settlement judge determines that the case is appropriate for mediation he or she will work with counsel to schedule a mediation session.

Although there are a number of different ways in which mediation may proceed, generally, a mediation session will start with all parties together in a joint session. The settlement judge will describe how the process works, explain the settlement judge’s role and establish ground rules and an agenda for the session. Generally, parties then make opening statements. Sometimes the settlement judge will conduct the whole process in a joint session, or there may be instances where the settlement judge will meet individually with participants. If a settlement is reached, the agreement should be reduced to writing as soon as practical and then the appeal may be dismissed by motion or stipulation. If a settlement is not reached, the timelines for briefing and transcript preparation will be reinstated and the appeal will proceed.

Any questions regarding scheduling of sessions or procedures to be followed during the mediation should be directed to the settlement judge.

ADVANTAGES TO THE SETTLEMENT PROGRAM

Party-driven Process:  Parties have an opportunity to work towards a solution to their dispute with an outcome everyone can accept, rather than having a court impose a decision.  This is often seen as a less stressful way of resolving disputes compared to continuing with litigation.

Cost Savings:  Because the mediation is held at the beginning of the appellate process, and because briefing and the preparation of transcripts are stayed, parties can avoid significant costs.  Also, it’s possible to resolve a case within a few days through mediation, whereas a fully briefed and argued appeal may take months to resolve.  Additionally, the parties may resolve all outstanding issues between them (including other related litigation), not just the specific legal issues in a particular appeal.

Risk Avoidance:  Even though on appeal there may already be a perceived “winner” and perceived “loser,” there is always a chance that the judgment could be reversed and remanded for additional proceedings, including a new trial.  Also, a judgment may not be worth face value if it has not yet been collected.  For example, a debtor may file for bankruptcy or there may be a significant delay in collecting a judgment.  A mediated resolution can provide more certainty.

Mediation is Effective:  Many seemingly intractable disputes have been resolved through the Settlement Program.  Additionally, a mediated settlement provides higher satisfaction for all parties. This is because mediation allows the parties to consider creative and mutually beneficial outcomes that may not be possible for courts to consider in rendering legal decisions.

MEDIATION INFORMATION AND RESOURCES (EXTERNAL LINKS)

The information and resources provided below have not been produced specifically for the Nevada Supreme Court Settlement Program.  Some aspects of the information contained in these resources may not be applicable to the Nevada Supreme Court Settlement Program.  For example, the Settlement Program is a mandatory mediation program for cases in which all parties are represented by attorneys, and for which a settlement judge is assigned by the court.  The resources do, however, provide important information regarding the mediation process in general, and are very helpful in preparing for your participation in the Settlement Program.

Preparing for Mediation (Produced by the American Bar Association, Section of Dispute Resolution)

Preparing for Family Mediation (Produced by the American Bar Association, Section of Dispute Resolution)

Preparing for Complex Civil Mediation (Produced by the American Bar Association, Section of Dispute Resolution)”

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Jay Young is a Las Vegas, Nevada arbitrator and mediator with a successful neutrals practice.  His mediator, arbitrator, and ADR training include: 36 hour ADR certification in 1994.  40 hour mediator training.  Appointed by the Nevada Supreme Court as a Nevada Supreme Court Settlement Judge.  Appointed by the Nevada Supreme Court as an Arbitrator (2003-Present) in the 8th Judicial District Court (Las Vegas, Clark County, Nevada).  Judge Pro Tem (2011-present).  Appointed Special Master to the Business Court, 8th Judicial District Court (Las Vegas, Clark County, Nevada).  Arbitrator and Mediator for American Arbitration Association (Complex Commercial Litigation Arbitration and Mediation National Panel Member); Better Business Bureau Arbitrator.  Arbitrated and/or mediated over 250 disputes.  Training courses include:  Supreme Court of Nevada: “Impasse Prevention & Communication”;  Supreme Court of Nevada: “Implied Bias”; Supreme Court of Nevada: “Breaking Impasse”; Supreme Court of Nevada: “Ethics, Comprehensive Review”; AAA Arbitrator Subpoenas: Are They Worth the Paper They’re Printed On?, 2015; AAA Roundtable – Las Vegas, 2015; AAA Essential Mediation Skills for the New Mediator, 2015; AAA  Fundamentals of Effective Mediation Advocacy, 2015; AAA Confronting Arbitrability & Jurisdiction in Arbitration, 2015; AAA  Award Writing, 2014;  AAA Arbitration Fundamentals and Best Practices for New AAA Arbitrators, 2013; AAA “Arbitrator’s Role, Authority, and Responsibility”; AAA “Arbitrator’s Ethics, Practice Standards and Disclosures”; AAA “Preparing for and Conducting a Preliminary Hearing”; AAA: “Managing Issues Involving Self-Represented Parties”; AAA: “Managing Evidentiary Hearing Issues”; AAA: “Managing Panel Dynamics”; AAA: “Preparing for and Writing the Award”; AAA: “Managing Post-Hearing Issues”;  Better Business Bureau, Arbitrator Training, 2006;  “Succeeding In Mediation,” AAA, 2003; “Mediation and Arbitration Advocacy”; AAA, 2002, “Cutting Edge Negotiation Strategies for Lawyers”; Negotiation Strategy Institute, 2002; “Arbitrator Training,” Supreme Court of Nevada, State Bar of Nevada, 2000; “Arbitration 101”, Clark County Bar Association, 1994.

 

NRS 597.995  Limitations on agreements which include provision requiring arbitration of disputes arising between parties.

      1.  Except as otherwise provided in subsection 3, an agreement which includes a provision which requires a person to submit to arbitration any dispute arising between the parties to the agreement must include specific authorization for the provision which indicates that the person has affirmatively agreed to the provision.

      2.  If an agreement includes a provision which requires a person to submit to arbitration any dispute arising between the parties to the agreement and the agreement fails to include the specific authorization required pursuant to subsection 1, the provision is void and unenforceable.

      3.  The provisions of this section do not apply to an agreement that is a collective bargaining agreement. As used in this subsection, “collective bargaining” has the meaning ascribed to it in NRS 288.033.

      (Added to NRS by 2013, 568)

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The following disputable presumptions are available in Nevada court proceedings:

  1. That an unlawful act was done with an unlawful intent.
  2. That a person intends the ordinary consequences of that person’s voluntary act.
  3. That evidence willfully suppressed would be adverse if produced.
  4. That higher evidence would be adverse from inferior being produced.
  5. That money paid by one to another was due to the latter.
  6. That a thing delivered by one to another belonged to the latter.
  7. That things which a person possesses are owned by that person.
  8. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of that ownership.
  9. That official duty has been regularly performed.
  10. That a court or judge, acting as such, whether in this State or any other state or country, was acting in the lawful exercise of the court’s or judge’s jurisdiction.
  11. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties.
  12. That a writing is truly dated.
  13. That a letter duly directed and mailed was received in the regular course of the mail.
  14. That a person not heard from in 3 years is dead.
  15. That a child born in lawful wedlock is legitimate.
  16. That the law has been obeyed.
  17. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to that person, when such presumption is necessary to perfect the title of such person or a successor in interest.
  18. In situations not governed by the Uniform Commercial Code:

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In WPH Architecture, Inc. v. Vegas VP, __ P.3d __, 131 Adv. Op. 88 (Nev. Nov. 5, 2015), the Nevada Supreme Court held that Rule 68 Offers of Judgment, together with statutes allowing offers of judgment in Nevada “are substantive laws that apply to the arbitration proceedings in the current case.”  In this case, the contract between the litigants required arbitration of any disputes pursuant to the American Arbitration Association’s Construction Arbitration Rules, and applying Nevada substantive law.  Prior to arbitration, the claimant made a statutory and Rule 68 offer of judgment.  The respondent rejected the offer of judgment, then lost at arbitration.

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In Nevada, the elements for a claim of premises liability (slip and fall, trip and fall, etc.) are:

  1. Defendant is the owner of or in control of premises;
  2. Plaintiff is a permissive user of the premises;
  3. A dangerous condition exists on the premises;
  4. Defendant caused, knew of, or should have known of the alleged dangerous condition; and
  5. The dangerous condition caused Plaintiff to suffer injury and/or other damages.

Rolain v. Wal-Mart Stores, Inc., 2013 U. S. Dist. LEXIS 14373 (March 26, 2013); Foster v. Costco Wholesale Corp., 291 P. 3d 150 (Nev. 2012) (duty of reasonable care for the safety of persons entering the land extends “to all entrants on the land (except for flagrant trespassers)”, concluding that “landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions.”  The Court then went on, stating that the “duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm.”); Coblentz v. Hotel Emp. & Rest. Empl. Union Welfare Fund, 112 Nev. 1161, 1171-72, 925 P.2d 496, 502 (1996); Rogers v. Tore, Ltd., 85 Nev. 548, 550, 459 P. 2 214, 215 (1969); Restatement (Third) of Torts: Physical and Emotional Harm, § 51 (“[A] land possessor owes a duty of reasonable care to entrants on the land with regard to: (a) conduct by the land possessor that creates risks to entrants on the land; (b) artificial conditions on the land that pose risks to entrants on the land; (c) natural conditions on the land that pose risks to entrants on the land; and (d) other risks to entrants on the land when any of the affirmative duties . . . is applicable.”

 

See elements for other claims at the Nevada Law Library

Nevada’s Rules Governins Alternative Dispute Resolution defines a Settlement Conference as:

“Settlement conference” is a process whereby, with the approval of the district judge to whom the case is assigned, a district court judge not assigned to the particular case, senior judge, special master, referee or other neutral third person, conducts, in the presence of the parties and their attorneys and person or persons with authority to resolve the matter, a conference for the purpose of facilitating settlement of the case.

 

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Definition of Mediation

Nevada’s Rules Governing Alternative Dispute Resolution define Mediation as:

“Mediation” means a process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.

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In Nevada, the elements for a claim of professional negligence or malpractice (not including medical malpractice) are:

  1. Defendant owes plaintiff duty to exercise due care toward plaintiff;
  2. Defendant had a heightened duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise
  3. Defendant breached the duty of care;
  4. That breach caused harm to plaintiff; and
  5. Plaintiff was damaged by breach.

Clark v. Robison, 113 Nev. 949, 951, 944 P.2d 788, 790 (1997); Morgano v. Smith, 110 Nev. 1025, 1028, n.2, 879 P.2d 735, 737 (1994); Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589 (1991); Bank of Nevada v. Butler Aviation-O’Hare, Inc., 96 Nev. 763, 765, 663 P.2d 398, 399 (1980); Restatement (Second) of Torts, § 562 (1977); NRS 41A.015; Terracon Consultants W., Inc. v. Mandalay Resort Gp., 125 Nev. 66, 206 P.3d 81 (2009)(economic loss doctrine prevents tort suit against engineers and architects, but not attorneys, accountants, real estate professionals, and insurance brokers) (citing Goodrich & Pennington v. J.R. Woolard, 120 Nev. 777, 101 P.3d 792 (2004)); Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002); Choi v. Chase Manhattan Mortg. Co., 63 F. Supp. 2d 874, 883-85 (N.D. Ill. 1999); 2314 Lincoln Park W. Condo. v. Mann, 136 Ill.2d 302, 144 Ill. Dec. 227, 555 N.E.2d 346, 353 (1990)).

 

See elements for other claims at the Nevada Law Library

Nevada’s Rules Governing Alternative Dispute Resolution defines Arbitration as:

“Arbitration” means a process whereby a neutral third person, called an arbitrator, considers the facts and arguments presented by the parties and renders a decision, which may be binding or nonbinding as provided in these rules.

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NEVADA ARBITRATION RULES

Rule 1.  The court annexed arbitration program.  The Court Annexed Arbitration Program (the program) is a mandatory, non-binding arbitration program, as hereinafter described, for certain civil cases commenced in judicial districts that include a county whose population is 100,000 or more. Judicial districts having a lesser population may adopt local rules implementing all or part of the program.

[Added; effective July 1, 1992; amended effective January 1, 2005.]

Rule 2.  Intent of program and application of rules.

(A)  The purpose of the program is to provide a simplified procedure for obtaining a prompt and equitable resolution of certain civil matters.

(B)  These rules shall apply to all arbitration proceedings commenced in the program.

(C)  These arbitration rules are not intended, nor should they be construed, to address every issue which may arise during the arbitration process. The intent of these rules is to give considerable discretion to the arbitrator, the commissioner and the district judge. Arbitration hearings are intended to be informal, expeditious and consistent with the purposes and intent of these rules.

(D)  These rules may be known and cited as the Nevada Arbitration Rules, or abbreviated N.A.R.

[Added; effective July 1, 1992; amended effective January 1, 2005.]

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NEVADA MEDIATION RULES

Rule 1.  The court annexed mediation program.

(A)  The Court Annexed Mediation Program (the program) is an alternative to the Court Annexed Arbitration Program and is intended to provide parties a prompt, equitable and inexpensive method of dispute resolution for matters otherwise mandated into the arbitration program.

(B)  These rules may be known and cited as the Nevada Mediation Rules, or abbreviated N.M.R.

[Added; effective March 1, 2005.]

 

Rule 2.  Matters entering the mediation program.  Any matter that is otherwise subject to the Court Annexed Arbitration Program may be voluntarily placed into the Mediation Program. Participation in the Mediation Program shall be by mutual consent of the parties pursuant to written stipulation. The stipulation must be filed with the commissioner within 15 days after the filing of an answer by the first answering defendant. For good cause shown, an appropriate case may be placed into the program upon the filing of an untimely stipulation; however, such filing may subject the parties to sanctions by the commissioner.

[Added; effective March 1, 2005.]

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RULES GOVERNING ALTERNATIVE DISPUTE RESOLUTION

(Arbitration and Mediation)

A. GENERAL PROVISIONS

Rule 1.  Definitions.  As used in these rules:

(A)  “Arbitration” means a process whereby a neutral third person, called an arbitrator, considers the facts and arguments presented by the parties and renders a decision, which may be binding or nonbinding as provided in these rules.

(B)  “Mediation” means a process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.

(C)  “Settlement conference” is a process whereby, with the approval of the district judge to whom the case is assigned, a district court judge not assigned to the particular case, senior judge, special master, referee or other neutral third person, conducts, in the presence of the parties and their attorneys and person or persons with authority to resolve the matter, a conference for the purpose of facilitating settlement of the case.

[Added; effective March 1, 2005.]

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The following abstract explores the law regarding punitive damages in Nevada

Introduction

Punitive damages are not designed to compensate a party, but are awarded for the sake of example and by way of punishing the defendant.  NRS 42.010(1).  By assessing the gravity of the injury, punitive damages serve as a vehicle for a community to express outrage or distaste for a defendant’s misconduct while warning others that such wrongdoing will not be tolerated.  Ace Truck v. Kahn, 103 Nev. 503, 506, 746 P.2d 132, 134 (1987).  Allowing punitive damages provides a benefit to society by punishing undesirable conduct that is not punishable by the criminal law.  Id.  Therefore, the party whose conduct was so outrageous as to merit punishment by means of punitive damages is obligated to bear the burden of paying the award, which effectuates the goals of punishment of and deterrence.  New Hampshire Ins. Co. v. Gruhn, 99 Nev. 771, 774, 670 P.2d 941, 943 (1983). (more…)

Federal Arbitration Act

An Overview of the Federal Arbitration Act

The Federal Arbitration Act, 9 U.S.C. §1 et seq. (the “FAA”), governs the enforcement of arbitration agreements.  9 U.S.C. §§ 1-2; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 398 U.S. 395, 402 (1967).  The FAA established a national public policy favoring arbitration.  AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011)).  An arbitration agreement is enforceable under the FAA if it is in writing, relates to a commercial or maritime transaction, and manifests and agreement between the parties to arbitrate a dispute. 9 U.S.C § 1.  Contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” are not covered by the FAA.  Id. (more…)

Nevada Revised Statutes, NRS 38.209  “Arbitrator” defined.  “Arbitrator” means an individual appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate.

(Added to NRS by 2001, 1274)

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In Nevada, the elements for a claim of quiet title are:

  1. Action may be brought by any person against another who claims an estate or interest in real property, adverse to him, for the purpose of determining such adverse claims. NRS  40.010;
  2. Complaint must be verified. NRS 40.090-1;
  3. Summons must be issued within one year of filing the complaint and served per NRCP. NRS 40.100-1;
  4. Lis Pendens must be filed with the county recorder within 10 days of filing of the complaint. NRS 40.090-3;
  5. Copy of the Summons must be posted on the property within 30 days after the summons is issued, and an affidavit of posting must be filed with the court. NRS 40.100-2;
  6. Disclaimer must be filed. NRS 40.020;
  7. Affidavit to unknown heirs must be filed. NRS 14.040(3);
  8. Court must hold a hearing on the evidence in order to issue judgment. Quiet title may not be obtained through default judgment.  NRS 40.110; and
  9. Record a certified copy of the judgment quieting title. NRS 247.120(o).

Joyner v. Bank of America Home Loans, Case No. 2:09-CV-2406-RCJ-RJJ 2010 WL 2953969 (D. Nev. 2010); Kemberling v. Ocwen Loan Servicing, LLC, Case No. 2:09-CV-00567-RCJ-LRL, 2009 WL 5039495 (D. Nev. 2009); Del Webb Conservation Holding Corp. v. Tolman, 44 F. Supp. 2d 1105, 1109-10 (D. Nev. 1999); Union Mill v. Mining Co. v. Warren, 82 F. 519, 520 (D. Nev. 1897); Howell v. Ricci, 197 P.3d 1044, 1046 n. 1 (Nev. 2008); Breliant v. Preferred Equities Corp., 112 Nev. 663, 669, 918 P.2d 314, 318 (Nev. 1996); Sceirine v. Densmore, 87 Nev. 9, 12, 479 P.2d 779 (1971); MacDonald v. Krause, 77 Nev. 312, 317-18, 362 P.2d 724 (Nev. 1961); Clay v. Scheeline Banking & Trust Co., 40 Nev. 9, 159 P. 1081, 1082-83 (1916).

 

See elements for other claims at the Nevada Law Library

Jay Young, business attorney, has been voted by his peers as one of the top 100 attorneys in the Mountain States.  He is a Member of the national firm Howard & Howard Attorneys, PLLC.

Howard & Howard provides a full array of business legal services to corporations, partnerships, limited liability companies and other entities:

  • Choice of entity, formation and operation
  • Shareholder relations and ownership succession
  • General corporate governance
  • Commercial transactions, including license, employment, lease, sales, advertising, marketing, information technology, software, consultant, manufacturing, supply, distribution, confidentiality, and other business and operating agreements
  • Mergers and acquisitions
  • Intellectual property protection and technology licensing and management
  • Employee relations, including labor unions, compensation, and benefit planning
  • Finance, including traditional secured loan facilities, off-balance sheet financing such as equipment leasing, and public and private debt and equity securities offerings
  • Antitrust
  • Creditor relations, including work-out and bankruptcy
  • Real estate, zoning and environmental regulations

Jay concentrates on business litigation, mediation, and arbitration.  The firm’s commercial litigation practice includes representing Fortune 500 companies, local businesses, prominent individuals, and non-profit organizations who routinely turn to Howard & Howard for business litigation and trial law services, including the following areas:

  • Bankruptcy Law Disputes
  • Antitrust
  • Business Torts Claims
  • Business breakups
  • Contract Disputes
  • Class Actions
  • Construction Claims
  • Condemnation Claims
  • Dealer, Distributor & Franchise Claims
  • Employment Claims
  • Energy Law Claims
  • Financial Institutions
  • Government Investigations
  • Gaming Law
  • Heath Care Claims
  • Insurance Coverage
  • Patent, Trademark & Copyright
  • Product Liability
  • Real Estate
  • Securities
  • Shareholder Disputes
  • Supply Chain Claims
  • Tax/Property Tax
  • Toxic Tort
  • TRO/Injunctions
  • Trade Secrets & Unfair Competition
  • UCC Claims

MEDIATION AND ARBITRATION OF CLAIMS RELATING TO RESIDENTIAL PROPERTY WITHIN COMMON-INTEREST COMMUNITY

 

NRS 38.300  Definitions.  As used in NRS 38.300 to 38.360, inclusive, unless the context otherwise requires:

1.  “Assessments” means:

(a) Any charge which an association may impose against an owner of residential property pursuant to a declaration of covenants, conditions and restrictions, including any late charges, interest and costs of collecting the charges; and

(b) Any penalties, fines, fees and other charges which may be imposed by an association pursuant to paragraphs (j) to (n), inclusive, of subsection 1 of NRS 116.3102 or subsections 10, 11 and 12 of NRS 116B.420.

2.  “Association” has the meaning ascribed to it in NRS 116.011 or 116B.030.

3.  “Civil action” includes an action for money damages or equitable relief. The term does not include an action in equity for injunctive relief in which there is an immediate threat of irreparable harm, or an action relating to the title to residential property.

4.  “Division” means the Real Estate Division of the Department of Business and Industry.

5.  “Program” means a program established by the Division under which a person, including, without limitation, a referee or hearing officer, can render decisions on disputes relating to:

(a) The interpretation, application or enforcement of any covenants, conditions or restrictions applicable to residential property or any bylaws, rules or regulations adopted by an association; or

(b) The procedures used for increasing, decreasing or imposing additional assessments upon residential property.

6.  “Residential property” includes, but is not limited to, real estate within a planned community subject to the provisions of chapter 116 of NRS or real estate within a condominium hotel subject to the provisions of chapter 116B of NRS. The term does not include commercial property if no portion thereof contains property which is used for residential purposes.

(Added to NRS by 1995, 1416; A 2003, 2251, 2274; 2007, 2277; 2013, 2295)

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In Nevada, the elements for a claim of the tort of res ipsa loquitur (latin for “the thing speaks for itself”) are:

  1. First, that events are is the kind of events which ordinarily do not occur in the absence of someone’s negligence;
  2. The events were caused by an agency or instrumentality in the exclusive control of the Defendant, over which the defendant had the exclusive right of control, originally, and which was not mishandled or otherwise changed after defendant relinquished control;
  3. The event was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of his injury; and
  4. Causation and damages.

NEVADA JURY INSTRUCTIONS 4.18; NEVADA JURY INSTRUCTIONS 4.19; BAJI 4.00; BAJI 4.02.

 

See elements for other claims at the Nevada Law Library

In Nevada, rescission is a remedy which allows the harmed party, either through unilateral action, or through the institution of a suit in equity, to abrogate or cancel a contract totally, returning the parties to the positions they held prior to the execution of the contract.

  1. Existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation of a contract;
  2. Suit for rescission – equitable remedy totally abrogating a contract and placing the parties in the positions they occupied prior to executing the contract;
  3. Where a contract has been partially performed under equitable rescission, the party performing must elect to rescind or affirm the contract but cannot do both. Rescission requires immediate restitution, or return of whatever of value was received; and
  4. Where there has been a valid rescission of contract, there is no contract to enforce and therefore no possible cause of action for breach.

Pacific Maxon, Inc. v. Wilson, 96 Nev. 836, 619 P.2d 816; Scaffidi v. United Nissan, 425 F. Supp. 2d 1172 (D. Nev. 2005). Great Am. Ins. Co. v. Gen. Builders, Inc., 113 Nev. 346, 934 P/2d 257, 262 n.6 (1997)(“A priori, where there has been a valid rescission of the contract, there is no longer any contract and, therefore, no longer a cause of action for breach.”).  Rescission voids a contract.  Bergstrom v. DeVoe, 109 Nev.575, 577, 854 P.2d 860, 862 (1993).  Restitution is a form of rescission.  Reed v. Sixth Jud. Dist. Ct., 75 Nev. 338, 341, 341 P.2d 100, 101 (1959); Dan B. Dobbs, Law of Remedies, 552 (2d. Ed. 1993).  Rescission and damages are inconsistent; election of one is a bar to the other.  Mullinix v. Morse, 81 Nev. 451, 454, 406 P.2d 298, 300 (1965).

 

See elements for other claims at the Nevada Law Library

ARBITRATION OF ACTIONS IN DISTRICT COURTS AND JUSTICE COURTS

 

NRS 38.250  Nonbinding arbitration of certain civil actions filed in district court required; nonbinding arbitration of certain civil actions filed in justice court authorized; effect of certain agreements by parties to use other alternative methods of resolving disputes.

1.  Except as otherwise provided in NRS 38.310:

(a) All civil actions filed in district court for damages, if the cause of action arises in the State of Nevada and the amount in issue does not exceed $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs, must be submitted to nonbinding arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, unless the parties have agreed or are otherwise required to submit the action to an alternative method of resolving disputes established by the Supreme Court pursuant to NRS 38.258, including, without limitation, a settlement conference, mediation or a short trial.

(b) A civil action for damages filed in justice court may be submitted to binding arbitration or to an alternative method of resolving disputes, including, without limitation, a settlement conference or mediation, if the parties agree to the submission.

2.  An agreement entered into pursuant to this section must be:

(a) Entered into at the time of the dispute and not be a part of any previous agreement between the parties;

(b) In writing; and

(c) Entered into knowingly and voluntarily.

Ê An agreement entered into pursuant to this section that does not comply with the requirements set forth in this subsection is void.

3.  As used in this section, “short trial” means a trial that is conducted, with the consent of the parties to the action, in accordance with procedures designed to limit the length of the trial, including, without limitation, restrictions on the amount of discovery requested by each party, the use of a jury composed of not more than eight persons and a specified limit on the amount of time each party may use to present the party’s case.

(Added to NRS by 1991, 1343; A 1993, 556, 1024; 1995, 1419, 2537, 2538; 1999, 852, 1379; 2003, 851; 2005, 391)

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UNIFORM ARBITRATION ACT OF 2000

 

NRS 38.206  Short title.  NRS 38.206 to 38.248, inclusive, may be cited as the Uniform Arbitration Act of 2000.

(Added to NRS by 2001, 1274)

 

NRS 38.207  Definitions.  As used in NRS 38.206 to 38.248, inclusive, the words and terms defined in NRS 38.208 to 38.213, inclusive, have the meanings ascribed to them in those sections.

(Added to NRS by 2001, 1274)

 

NRS 38.208  “Arbitral organization” defined.  “Arbitral organization” means an association, agency, board, commission or other entity that is neutral and initiates, sponsors or administers an arbitral proceeding or is involved in the appointment of an arbitrator.

(Added to NRS by 2001, 1274)

(more…)

NEVADA REVISED STATUTES

CHAPTER 38 – MEDIATION AND ARBITRATION

 

UNIFORM ARBITRATION ACT OF 2000

 

NRS 38.206             Short title.

NRS 38.207             Definitions.

NRS 38.208             “Arbitral organization” defined.

NRS 38.209             “Arbitrator” defined.

NRS 38.211             “Court” defined.

NRS 38.212             “Knowledge” defined.

NRS 38.213             “Record” defined.

NRS 38.214             Notice.

NRS 38.216             Applicability.

NRS 38.217             Waiver of requirements or variance of effects of requirements; exceptions.

NRS 38.218             Application for judicial relief; service of notice of initial motion.

NRS 38.219             Validity of agreement to arbitrate.

NRS 38.221             Motion to compel or stay arbitration.

NRS 38.222             Provisional remedies.

NRS 38.223             Initiation of arbitration.

NRS 38.224             Consolidation of separate arbitration proceedings.

NRS 38.226             Appointment of arbitrator; service as neutral arbitrator.

NRS 38.227             Disclosure by arbitrator.

NRS 38.228             Action by majority.

NRS 38.229             Immunity of arbitrator; competency to testify; attorney’s fees and costs.

NRS 38.231             Arbitration process.

NRS 38.232             Representation by lawyer.

NRS 38.233             Witnesses; subpoenas; depositions; discovery.

NRS 38.234             Judicial enforcement of preaward ruling by arbitrator.

NRS 38.236             Award.

NRS 38.237             Change of award by arbitrator.

NRS 38.238             Remedies; fees and expenses of arbitration proceeding.

NRS 38.239             Confirmation of award.

NRS 38.241             Vacating award.

NRS 38.242             Modification or correction of award.

NRS 38.243             Judgment on award; attorney’s fees and litigation expenses.

NRS 38.244             Jurisdiction.

NRS 38.246             Venue.

NRS 38.247             Appeals.

NRS 38.248             Uniformity of application and construction. (more…)

EMPLOYMENT DISCRIMINATION AND WRONGFUL TERMINATION

In Nevada, the elements for a claim of retaliatory discharge (sometimes called employment discrimination, wrongful discharge, or tortious discharge) are:

  1. Employee engaged in protected activity while employed (such as filing a discrimination charge or opposing unlawful employer practices);
  2. Employee suffered an adverse employment action by the employer;
  3. The protected activity was a motivating factor in the adverse employment action;
  4. Causation and damages; and
  5. Punitive damages.

Burlington N. v. White, 126 S. Ct. 2405 (2006); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994); Allum v. Valley Bank of Nevada, 114 Nev. 1313, 970 P.2d 1062, 1066 (1998); D’Angelo v. Gardner, 107 Nev.704, 819 P.2d 206, 212 (1991); Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1984); 42 U.S.C. § 2000e-3(a).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of civil RICO violations (Racketeering Influenced and Corrupt Organizations Act) are:

  1. Defendants engaged in racketeering activities as defined in NRS 207.390 and a racketeering enterprise as is defined in NRS 207.380;
  2. Defendants acting directly, and in conspiracy with one another or through their syndicate, participated directly in racketeering activity by engaging in at least two crimes related to racketeering;
  3. Defendant’s activities have the same or similar pattern, intent, results, accomplices, victims, or methods of commission, or otherwise interrelated by distinguishing characteristics and are not isolated events;
  4. Defendant acquired or maintained directly or indirectly an interest in, or control of, any enterprise, or defendants are employed by or associated with any enterprise to conduct or participate directly or indirectly in the affairs of the enterprise through a racketeering activity;
  5. Plaintiff’s injuries flow from the defendant’s violation of a predicate Nevada RICO act;
  6. Plaintiff’s injury was be proximately caused by the defendant’s violation of the predicate act;
  7. Plaintiff did not participate in the commission of the predicate act; and
  8. Plaintiff is entitled to institute a civil action for recovery of treble damages proximately caused by the RICO violations. NRS 207.470(1).

NRS 207.470; Stoddart v. Miller, 2008 WL 6070835 (Nev. 2008 ); Siragusa v. Brown, 114 Nev. 1384, 971 P.2d 801 (1999); Gordon v. Eighth Judicial Dist. Ct., 12 Nev. 216, 231, 913 P.2d 240, 250-51 (1996); Cummings v. Charter Hosp. of Las Vegas, Inc., 111 Nev. 639, 896 P.2d 1137 (1995); Allum v. Valley Bank of Nevada, 109 Nev. 280, 849 P.2d 297 (1993); Hale v. Burkhardt, 104 Nev. 632, 634, 764 P.2d 866, 867 (1988).

 

See elements for other claims at the Nevada Law Library

Professional Experience

Arbitration and Mediation Concentrations

  • Business/Commercial
  • Business/Partnership Disputes/Dissolution
  • Business Torts
  • Contract Disputes
  • Employment
  • Franchise Disputes
  • Personal Injury
  • Real Estate
  • Trade Secrets
  • Unfair Competition and Restrictive Covenants

ADR Training

  • Graduate: Pepperdine University’s Straus Institute for Dispute Resolution “Advanced Mediation: Skills and Techniques” course (2017)
  • Employment and Labor Case Law Update: What Arbitrators and Practitioners Need to Know (AAA 2017)
  • Faculty, Arbitration Fundamentals and Best Practices for New Arbitrators, AAA (October 2017)
  • Out of Sight, Out of Mind:  What You Need to Know about Preventing and Arbitrating Business-to-Business (“B2B”) Data Breaches, AAA (2017)
  • Panelist, Arbitrator’s Roundtable – Las Vegas, AAA (2017)
  • Nevada Supreme Court Settlement Judge Training, Nevada Supreme Court (2016)
  • Impasse Prevention & Communication/Implied Bias, Nevada Supreme Court (2016)
  • Breaking Impasse, Nevada Supreme Court (2016)
  • Mediation Ethics, a Comprehensive Review, Nevada Supreme Court (2016)
  • Consolidation and Joinder In Construction Arbitration: Ignorance Is Not Bliss, AAA (2016)
  • Arbitrator’s Roundtable – Las Vegas, AAA (2016)
  • Arbitrator Subpoenas: Are They Worth the Paper They’re Printed On? AAA (2015)
  • Essential Mediation Skills for the New Mediator, AAA (2015)
  • Fundamentals of Effective Mediation Advocacy, AAA (2015)
  • Confronting Arbitrability & Jurisdiction in Arbitration, AAA (2015)
  • Arbitrator’s Roundtable – Las Vegas, AAA (2015)
  • Award Writing, AAA (2014)
  • Arbitration Fundamentals and Best Practices, AAA (2013)
  • Arbitrator’s Role, Authority, and Responsibility, AAA (2006)
  • Arbitrator’s Ethics, Practice Standards and Disclosures, AAA (2006)
  • Preparing for and Conducting a Preliminary Hearing, AAA (2006)
  • Managing Issues Involving Self-Represented Parties, AAA (2006)
  • Managing Panel Dynamics, AAA (2006)
  • Preparing for and Writing the Award, AAA (2006)
  • Managing Evidentiary Hearing Issues, AAA (2006)
  • Managing Post-Hearing Issues, AAA (2006)
  • Arbitrator Training, Better Business Bureau (2006)
  • Succeeding In Mediation, AAA (2003)
  • Mediation and Arbitration Advocacy, AAA (2002)
  • Cutting Edge Negotiation Strategies for Lawyers, Negotiation Strategy Institute (2002)
  • Arbitrator Training, Supreme Court of Nevada, State Bar of Nevada (2000)
  • Arbitration 101, Clark County Bar Association (1994)
  • 40-hour Arbitrator Training, AAA (2013)
  • 40-hour Mediation Training, AAA (2015)
  • 36 Hour ADR Certification, J. Reuben Clark Law School, Brigham Young University (1994)

Professional Licenses

  • Nevada State Bar (1994)
  • U.S. District Court, District of Nevada (1994)
  • U.S. Court of Appeals, 9th Circuit (1995)

Memberships and Professional Affiliations

  • State Bar of Nevada
  • Clark County Bar Association
  • American Arbitration Association
  • National Institute for Trial Advocacy

Education

  • J.D., J. Reuben Clark Law School (1994)
  • B.A., Brigham Young University (1991)

Honors & Awards 

  • Top 100 List:  Mountain States Super Lawyers, in Business Litigation and ADR (2015 – 2017)
  • The Best Lawyers in America, Arbitration (2017)
  • Mountain States Super Lawyers (2014-present)
  • AV Rated, Martindale-Hubbell (Litigation, Commercial Law, and Business Law)
  • America’s Most Honored Professionals, Top 10% (2011, 2015-2016) Top 1% (2017)
  • Top 100 Lawyers in the Mountain States, Salt Lake Magazine (2015 – 2016)
  • Perfect 10.0 “Superb” Avvo.com rating
  • Nevada Legal Elite 2017, top 4% of Nevada’s Attorneys in  the Categories of: Professional Neutral (Arbitrator & Mediator) and Business Litigation.
  • Nevada Legal Elite, top 1% of Nevada’s Attorneys (2009, 2011, 2014 – 2015)
  • Top Lawyers, Desert Companion Magazine (2012 – 2014)
  • Top 100 Lawyers, MyVegas Magazine (2012 – 2013)
  • Vegas, Inc. Magazine – “Top Lawyers: The Best of the Best in Southern Nevada,” (2013)
  • Clark County Pro Bono Project Award – 50 hours certificate (2013)
  • Client’s Choice Award, AVVO in Litigation, Arbitration, Business Law, Bankruptcy, and Real Estate (2015)
  • National Institute for Trial Advocacy, “Master Advocate” designation
  • 48th Annual GRAMMY® Award Winner – Best Gospel Choir or Chorus Album (2005)
  • Vocalist, NAACP Image Award-winning album “Where My Heart Belongs” (2015)

LECTURES/TEACHING

  • Arbitration Fundamentals and Best Practices for New Arbitrators, AAA (October 2017)
  • Arbitrator’s Roundtable, Panelist, AAA (2017)
  • Deposition Training, Faculty for the National Institute for Trial Advocacy‘s Nevada Deposition Program, Continuing Legal Education Seminar (2008-2012 & 2014-present)
  • Business Contracts A to Z, Faculty presenting lecture and written materials on non-competition agreements, trade secrets, intellectual property, and breach of contract, National Business Institute (2012)
  • Advocacy Teacher Training, Graduate of the National Institute for Trial Advocacy’s intensive teacher training program (November 2009)
  • Trial Advocacy Training, Faculty for the National Institute for Trial Advocacy’s Las Vegas In-house Trial Training program, Continuing Legal Education Seminar (March 2006)
  • Deposition Training, Faculty for the National Institute for Trial Advocacy’s Las Vegas In-house Deposition Program, Continuing Legal Education Seminar (August 2005)
  • Commercial and Residential Evictions, Presenter of “Residential Evictions and Trial,” Continuing Legal Education Seminar (Sterling Education Services), Las Vegas, Nevada (May 18, 2005)
  • Landlord-Tenant Law Update, Presenter of “The Eviction and Judicial Process,” Continuing Legal Education Seminar (Sterling Education Services), Las Vegas, Nevada (January 13, 2005)
  • Commercial Leases: Drafting, enforcing, and Other Critical Issues, Presenter of “When a Tenant Files Bankruptcy,” Continuing Legal Education Seminar (Sterling Education Services), Las Vegas, Nevada (September 23, 2004)
  • Protecting the Homeowners Association, Presenter Las Vegas Seminar to Property Managers, Homeowner Association Boards, and Homeowners, Las Vegas, Nevada (1995)

BOOKS/PUBLICATIONS

ARTICLES

Nevada Mediation Toolbox

Nevada Arbitration Toolbox

The Nevada Department of Business and Industry (the “Department”) oversees the organization, licensing, operation, and dissolution of financial institutions.  The Nevada Division of Financial Institutions (the “NFID”) within the Department has supervisory control of most financial services businesses operating in Nevada, such as state-chartered banks, thrifts, savings and loan firms and credit unions, as well as trusts, installment loans, high-interest loans, and collection agencies.  Since 1999, mortgage brokers and mortgage bankers have been subject to the jurisdiction of the Nevada Mortgage Lending Division (the “NMLD”). (more…)

Jay Young’s Peer Reviews

Mark Twain’s reportedly once said, “I like criticism, but it must be my way.”  Below are actual blind peer reviews given of Jay Young, Las Vegas, Nevada business attorney, arbitrator, and mediator to lawyer.com.  Mr. Young’s peers–attorneys and judges–have given him the highest marks available for knowledge and ethics in Arbitration, Litigation, Commercial Law, Real Estate, and Business Law.

(more…)

This is the seventh in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

Financing

Incentives for Foreign Investors (Immigrant Investor/EB-5 Visas)

Under the Immigrant Investor/EB-5 Visa program, foreign investors may obtain a U.S. Visa in return for investment of at least $1,000,000 and the creation of ten jobs within the United States.  In a Targeted Employment Area, defined as rural area or one with high unemployment (including on Indian reservations), a $500,000 investment is required. (more…)

Jay Young, Nevada Business Attorney and Arbitrator

Jay Young is a Las Vegas, Nevada Arbitrator, Mediator, and Supreme Court Settlement Judge

For downloadable pdf of this article, click here.

Many of the complaints that I hear from litigators about arbitration could be resolved if the arbitration clause which forced the parties into litigation were written better.  Arbitrations are, of course, a creature of contract.[1]  Therefore, the parties’ arbitration agreement[2] is often the beginning and end of the arbitrator’s authority.[3]  The arbitrator is bound to give effect to the contractual rights and expectations of the parties “in accordance with the terms of the agreement.”[4]  In fact, although the Federal Arbitration Act presumes that arbitration awards will be confirmed except upon a few narrow circumstances,[5] the arbitrator who acts beyond the scope of the authority found in the parties’ arbitration clause risks having the award vacated.[6]  So, if you want the arbitrator to behave differently, write a better arbitration agreement.  (more…)

In Nevada, the elements for a claim slander of title are:

  1. Defendant makes false and malicious communications;
  2. Disparaging to one’s rights in land; and
  3. Plaintiff is damaged.

Robinson v. Ocwen Loan Servicing, LLC, Case No. 2:10-CV-321 JCM , 2010 WL 2834895, *2 (D. Nev. 2010); Exec. Mgt., Ltd. v. Ticor Title Ins. Co., 962 P.2d 465, 478 (Nev. 1998).

 

See elements for other claims at the Nevada Law Library

This is the sixth in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

Incentives for Doing Business With Indian Tribes

Accelerated Depreciation

Businesses operating on tribal reservations may accelerate the rate of depreciation of property used within the reservation.  Property normally depreciated over twenty years may be depreciated over twelve years.  Property normally depreciated over five years may be depreciated over three years.  Property normally depreciated over three years may be depreciated over two years. (more…)

This is the fifth in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

Federal Approval of Certain Contracts

The federal government must approve certain contracts involving Indian tribes or their rights, including:

  • A purchase, grant, lease, or other conveyance of tribal lands, or of any title or claim thereto, from any tribe to a person or entity;[1]
  • Mineral leases and agreements;[2]
  • Tribal Energy Resource Agreements for mineral energy development;[3]
  • A contract with an Indian tribe that “encumbers Indian lands for a period of 7 or more years…;”[4]
  • Leases of the surface of land held in trust for or with restricted status by and Indian or Indian Tribe;[5] and
  • Contracts relating to gaming activities, which are also subject to tribal gaming ordinances.[6]

(more…)

In Nevada, the elements for a claim strict product liability are:

  1. That the product was defective;
  2. That the defect existed when the product left the defendant’s possession;
  3. That the product was used in a manner which was reasonably foreseeable by the defendant; and
  4. That the defect was a cause of the damage or injury to the plaintiff.

NEVADA JURY INSTRUCTIONS 7.02; BAJI 9.00.

Nevada recognizes the doctrine of strict tort liability for defective products.  Valentine v. Pioneer Chlor Alkali, 109 Nev. 1107, 864 P.2d 295, 297 (1993). By this system, the courts seek to place responsibility for injuries caused by defective products wherever it will most effectively reduce the hazards to life and health inherent in the marketing of defective products. Allison v.Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948, 952 (1994).   Although manufacturers are not insurers of their products, where an injury is caused by a defective product, responsibility is placed upon the manufacturer and distributor of that product.

In order to bring a successful products liability suit in Nevada, a plaintiff must prove: (1) that the product had a defect which rendered it unreasonably dangerous; (2) the defect existed at the time the product left the manufacturer; and (3) the defect caused the plaintiff’s injury.  Fyssakis v. Knight Equip. Corp.,  108 Nev. 212, 826 P.2d 570, 571 (1992).  A manufacturer or distributor is of a product is strictly liable for injuries resulting from a defect in the product that was present when it left its hands.  Ginnis v. Mappes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970).

Under Nevada law, a product that does not include a warning that adequately communicates the dangers that may result from its use or foreseeable misuse, the product is defective.  Fyssakis, 826 P.2d at 572. Further, evidence that the product lacked adequate safety features or that a safe alternative design was feasible at the time of manufacture will support a strict liability claim. On the other hand, a product which bears suitable and adequate warnings concerning the safe manner in which the product is to be used, and which is safe to use if the warning is followed, is not in defective condition.  Crown Controls Corp v. Corella, 98 Nev. 35, 37, 639 P.2d 555, 557 (1982).

Purely economic losses usually are not recoverable under tort theories of negligence and strict liability.  Nat’l Union Fire Ins.  v.  Pratt & Whitney,  107 Nev. 538, 815 P.2d 601 (1991).

 

See elements for other claims at the Nevada Law Library

In Nevada, all questions of statutory construction must start with the language of the statute itself.  See 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47:1, at 274–75 (7th ed. 2007) (“The starting point in statutory construction is to read and examine the text of the act and draw inferences concerning the meaning from its composition and structure.” (footnote omitted)) – as quoted by In re Nevada State Eng’r Ruling No. 5823, 277 P.3d 449 (2012).   In other words, the Court must begin its inquiry with the statute’s plain language.   Arguello v. Sunset Station, Inc., 252 P.3d 206, 209 (2011).  The Court may not look beyond the statute’s language if it is clear and unambiguous on its face.  See Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1302, 148 P.3d 790, 792-793 (2006).  See also Valdez v. Emp’rs Ins. Co. of Nev., 123 Nev. 170, 162 P.3d 148 (2007); Hobbs v. Nev., 127 Nev. Adv. Op. 18, 251 P.3d 177, 179 (2011); Pro-Max Corp. v. Feenstra, 117 Nev. 90, 95, 16 P.3d 1074, 1078 (2001). Stated another way, in circumstances where the statute’s language is plain, there is no room for constructive gymnastics, and the court is not permitted to search for meaning beyond the statute itself.  See Pro-Max Corp. v. Feenstra, 117 Nev. 90, 95, 16 P.3d 1074 1078 (2001).

Courts must not render any part of the statute meaningless, and must not read the statute’s language so as to produce absurd or unreasonable results.  Leven v. Frye, 123 Nev. 399, 405, 168 P.3d 712, 716 (2007).  They must consider “the policy and spirit of the law and will seek to avoid an interpretation that leads to an absurd result.”  Id. (quoting CityPlan Dev. v. State Labor Comm’r, 121 Nev. 419, 435, 117 P.3d 182, 192 (2005)). In fact, “The meaning of words used in a statute may be sought by examining the context and by considering the reason or spirit of the law or the causes which induced the legislature to enact it.  The entire subject matter and the policy of the law may also be involved to aid in its interpretation, and it should always be construed so as to avoid absurd results.”  Welfare Div. of State Dept. of Health, Welfare and Rehabilitation v. Washoe Cty. Welfare Dept., 88 Nev. 635, 637 (1972); Ex parte Siebenhauer, 14 Nev. 365, 368 (1879); Western Pacific R.R. v. State, 69 Nev. 66, 69 (1952). Finally, the Courts must conform their decisions to reason and the public policy behind the statute.  Great Basin Water Network v. State Eng’r, 234 P.3d 912, 918 (2010).

 

See elements for other claims at the Nevada Law Library

This is the fourth in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

 

Available Court Forums

Federal Courts

Federal courts are courts of limited jurisdiction.  They may only hear civil matters arising as a federal question, or by diversity jurisdiction.  Federal question jurisdiction allows the court to hear matters where the plaintiff alleges a violation of the United States Constitution, federal law, or a treaty to which the United States is a party.[1]  Therefore, most private parties will not have cause to file an action claiming federal question jurisdiction against a tribe. (more…)

In Nevada, the elements of a wrongful death claim are:

  1. The death of a human being;
  2. Caused by another’s wrongful act or negligence;
  3. Plaintiff is an heir or personal representative of decedent; and
  4. Plaintiff suffered damages for monetary injury as a result of the death;

NRS 41.085; NEVADA JURY INSTRUCTIONS 10.13; NEVADA JURY INSTRUCTIONS 10.14; NEVADA JURY INSTRUCTIONS 10.15; NEVADA JURY INSTRUCTIONS 10.16; NEVADA JURY INSTRUCTIONS 10.17; NEVADA JURY INSTRUCTIONS 10.18; BAJI 14.50; BAJI 14.52

 

See elements for other claims at the Nevada Law Library

In Nevada, in order to collect attorney fees as special damages, one must plead and prove:

  1. Plead that they are entitled to collect attorney fees as special damages in the complaint pursuant to NRCP 9(g);
  2. Must plead and prove that fees are a “natural and proximate consequence of the injurious conduct”; and
  3. Must prove fees as to each claim.

Liu v. Christopher Homes, LLC, 321 P.3d 875 (2014); Sandy Valley Assoc. v. Sky Ranch Estates Owners Ass’n, 117 Nev. 948, 956, 35 P.3d 964, 969 (2001).

 

See elements for other claims at the Nevada Law Library

This is the fifth in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

Tribal Land

Trust Land

Most tribal land is owned by the federal government in trust for the tribe or individual Indian.  The relationship between the government and the tribe is similar to that of a guardian and a ward, where the government is a fiduciary owing duties to the tribes to care for the land on behalf of the tribes now and in the future.[1]  Trust land is not subject to state or local taxes, land use laws, or some federal environmental regulations.[2]  It may not be sold, leased, or taxed without federal government approval.[3]

Fee Land

Certain lands within a reservation may be owned in fee by a tribe, individual Indians, and non-Indians.  The federal government does not hold these lands in trust for the tribes.  Fee land is subject to applicable state and local taxes.[4]  Fee land owned by a tribe outside of a reservation is not normally subject to restrictions against alienation, encumbrance, or governmental approval. The law is not clear whether such restrictions apply to fee land within the boundaries of a reservation.[5]

 


 

[1] Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).

[2] 25 C.F.R. § 1.4.

[3] See 25 U.S.C. § 81; 25 C.F.R. §  152.22(b); 25 U.S.C. § 177; 25 C.F.R. § 224; 25 U.S.C. § 396a; 25 U.S.C. § 415; 25 U.S.C. § 2102(a); 25 U.S.C. § 3504.

[4] County of Yakama v. Confederated Tribes and Bands of Yakama Indian Nation, 502 U.S. 251 (1992).

[5] 25 U.S.C. § 177; see also Pub. L. 101–630, § 101 (“Section 2116 of the Revised Statutes (25 U.S.C. § 177) prohibits the conveyance of any lands owned by Indian tribes without the consent of Congress.”); 25 C.F.R. §  152.22(b) (“Lands held in trust by the United States for an Indian tribe, lands owned by a tribe with Federal restrictions against alienation and any other land owned by an Indian tribe may only be conveyed where specific statutory authority exists and then only with the approval of the Secretary unless the Act of Congress authorizing sale provides that approval is unnecessary.”); United States v. Sandoval, 231 U.S. 28 (1913); United States v. Candelaria, 271 U.S. 432 (1926); Alonzo v. United States, 249 F.2d 189 (10th Cir. 1957), cert. denied 355 U.S. 940 (1958); Tonkawa Tribe of Oklahoma v. Richards, 75 F.3d 1039, 1045 (5th Cir. 1996); but see Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993), cert. denied, 512 U.S. 1228 (1994); Saginaw Chippewa Tribe v. State of Michigan, 882 F.Supp. 659 (E.D. Mich. 1995), rev’d on other grounds 106 F.3d 130 (6th Cir. 1997), cert. granted and judgment vacated sub. nom. Michigan v. United States, 524 U.S. 923 (1998); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379 (Wash. 1996)

In Nevada, the elements for a claim waste are:

  1. Defendant commits or permits an act constituting waste to property at a time when Defendant is rightfully in possession of property;
  2. Defendant’s act cause permanent or lasting injury done to the property, to the prejudice of another who has an interest in the property; and
  3. Plaintiff is entitled to treble damages.

NRS 40.150; Price v. Ward, 25 Nev. 203, 849–50, 58 P. 849 (1899).

 

See elements for other claims at the Nevada Law Library

 

In Nevada, the elements for a claim of bad faith discharge, tortious discharge, or wrongful discharge, are:

  1.  Enforceable contract of employment (even for an indefinite period of future employment);
  2. Special relationship between the tortfeasor and the tort victim (i.e., a relationship of trust and special reliance);
  3. Employer acts in bad faith; conduct must go well beyond the bounds of ordinary liability for breach of contract;
  4. Causation and damages; and
  5. Punitive damages.

Martin v. Sears, Roebuck and Co., 111 Nev. 923, 899 P.2d 551 (1995); Shoen v. Amerco, Inc., 111 Nev. 735, 896 P.2d 469 (1995); D’Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206 (1991); Kmart v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).

 

See elements for other claims at the Nevada Law Library

1794297759_6d53e7c4f5_b                The Nevada Supreme Court recently decided that the waiver of the right to arbitrate a dispute is presumptively within the jurisdiction of the courts, not arbitrators to decide unless the arbitration agreement clearly reserves this question of arbitrability to the arbitrator.  That is if the claimed waiver arises from litigation conduct.

The case involves claims against a payday lender who obtained, according to the court, “thousands of default judgments” against defendants who failed to appear in collection actions brought after default on the short term loans.  Plaintiffs sued as a class to, inter alia, have the court deem the default judgments void and uncollectable when it was learned that the lender’s process server engaged in “sewer service—the practice of accepting summonses and complaints for service, failing to serve them, then falsely swearing in court-filed affidavits that service had been made when it was not.”

The lender’s motion to compel arbitration based on agreements to arbitrate was denied when the District Court held the lender waived its right to arbitration by bringing the collections actions and obtaining the default judgments at issue.  (more…)

In Nevada, the defense of waiver is available where:

  1. A voluntary and intentional express or implied relinquishment of a known right; and
  2. Made with full knowledge of all material facts.

Udevco, Inc. v. Wagner, 100 Nev. 185, 189, 678 P.2d 679, 682 (1984).

 

See elements for other claims at the Nevada Law Library