Archive for: August, 2016

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)”

________________________

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)

(more…)

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:

(more…)

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.

(more…)

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.

 

(more…)

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.

(more…)

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.

(more…)