Archive for: 2018

Besides obtaining information from an adverse witness regarding the events which are the subject of the suit, you should also try understand how this witness will attack your claims.  Finally, you should attempt to do what you can to turn the witness into a witness for your case.  There is certain information you can get from each witness that allows you to attack the witness at trial.   Explore lines of questioning designed to elicit the following:

  1. What information must the witness admit?
  2. What information shows bias or impeaches the witness’ credibility?
  3. On what items may the witness’ testimony be limited (didn’t hear or see or experience X, Y, and Z)?
  4. Where is the witness weak?
  5. What does the witness know that agrees with your case?

Nevada Standards of Review on Appeal—A Digest

Abuse of Discretion

In General

“An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977 (9th Cir. 2003) (citation and internal quotation marks omitted); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 698 n.11 (9th Cir. 2011).

Under the abuse of discretion standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors.  McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011); Valdivia v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010) (citing SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)); Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (noting reversal under abuse of discretion standard is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances”). (more…)

20% Off These Titles.  Coupon code: “YOURGUIDES20” (Good Through 9.30.18)

Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.

 

A Litigator’s Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Buy here.

 

 

 

A Litigator’s Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every busy trial attorney practicing in Federal Court. With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to courtroom use or look up the rule/statute based on the concept. Buy here.

 

 

Nevada State Court Litigation Checklist (2nd Edition) (Your Legal Guides 2016).  This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.

 

A Litigator’s Guide to Nevada Evidentiary Objections (2nd Edition) (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Organized logically, it is cross-referenced to the Federal Rules of Evidence as well as Nevada’s evidence statutes.  Buy here.

 

 

A Litigator’s Guide to Nevada Rules of Evidence (2nd Edition) (Your Legal Guides 2016).  A Pocket book for every busy trial attorney whether practicing in Federal Court or in State Court. Tracks both Nevada and the Federal Rules of evidence in one source! With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to Nevada’s statutes, or look up the rule/statute based on the concept.  Buy here.

 

The Self Help Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides lay litigants through all the steps they need to take from initial filing to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

 

The Self Help Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows lay litigants to instantly find the right objection to make in the heat of battle during trial.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

 

 

The Self Help Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every every lay litigant in Federal Court. With this pocket book, litigants can find the correct Federal Rules based on the concept.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

Can a Party to Litigation Object to a Subpoena Issued to a Non-Party Witness for Documents?

It happens often.  A subpoena is issued to a third party who isn’t part of litigation because that party might have documents that are useful in a lawsuit.  When responding to the subpoena, can a party to the litigation step in and object on behalf of the non-party witness?  The law is clear that a party has standing to challenge a subpoena issued to a non-party only “when it alleges a personal right or privilege with respect to, or has possession of, the materials subpoenaed.” See Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 205CV-01451-RCJ-LRL, 2007 WL 121674, at *2 (D. Nev. Jan. 10, 2007) (citing Jez v. Dow Chemical Co., Inc., 402 F.Supp.2d 783, 784–85 (S.D.Tex.2005)); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-CV-832-RFB-VCF, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017).  In other words, because the party is not the recipient of the subpoena, it has standing to challenge only where its challenge asserts that the information is privileged or protected to itself.  See Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (Jerry T. O’Brien, Inc. v. Securities and Exchange Commission, 704 F.2d 1065, 1068 (9th Cir.1983), rev’d on other grounds, 467 U.S. 735, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984), citing Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 538, 27 L.Ed.2d 580 (1971)). (more…)

 Readiness Checklist for Mediation:

Eight Things You Should Discuss With Your Client Before Mediation

The Mediation Process

  • For a printer-friendly version of this checklist, click here
  • What is mediation and how is it different from court or arbitration?
  • Why should the client consider mediation?
  • What is the mediator’s role?
  • What is the client’s role in mediation?
  • Who may attend the mediation?
  • Confidentiality in mediation
  • Discuss joint and separate sessions (also called caucuses)
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether the client will speak directly with the mediator and/or the other party
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

(more…)

Cases Interpreting NRS 38.241; Vacatur of Arbitration Award—A Digest

In General

Mere error in the application of the law is not grounds to vacate an arbitration award.  Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).

An arbitrator manifestly disregards the law, so as to require vacation of arbitration award, when he or she recognizes that the law absolutely requires a given result and nonetheless refuses to apply the law correctly.  Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).

Arbitrator’s manifest disregard of the law, so as to require vacation of arbitration award, is something beyond and different from a misinterpretation or error in applying the law.   Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004). (more…)

Royal Oak, Michigan, July 12, 2018: Howard & Howard Attorneys PLLC is pleased to announce that five of our attorneys have been named to Nevada Business Magazines 2018 Legal Elite and Best Up and Coming Attorneys lists.

The Howard & Howard attorneys named to the 2018 Legal Elite list are as follows:

  • W. West Allen
  • Robert W. Hernquist
  • Matthew J. Kreutzer
  • Jay Young
The Howard & Howard attorney named to the 2018 “Best Up and Coming Attorneys” list is as follows:
  •  Jason Weiland

Legal Elite, published since 2008, recognizes the top attorney’s in the state as nominated by their peers. The exclusive list includes only the top 4 percent of licensed attorneys in the state. This years list features over 300 attorneys on the Northern and Southern Nevada lists. In addition, there are breakout lists for the Best Up and Coming and Best Government attorneys. In order to be included, attorneys passed several levels of scrutiny. After nominations closed, ballots were reviewed for eligibility and each voting attorney was vetted through the State Bar of Nevada to confirm their good standing.

Nominated lawyers were scored based on the number and type of votes they received. Nominations from attorneys at other firms received a scoring of three points and nominations from the same firm received one point. After final scores were tabulated, the top scorers were then verified again and contacted to finalize the Legal Elite list.

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners. The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

Can an Arbitrator be Removed During the Pendency of an Arbitration?

What do you do if you feel that the arbitrator appointed to hear your dispute isn’t providing a fair and impartial atmosphere in which your matter can be heard?  Can you challenge the Arbitrator before he or she makes the final decision in the matter?  What cause is sufficient to have an arbitrator removed?  As is the case with so many questions in the law, the answer is: it depends.  For the most part, parties to an arbitration who feel there is cause to remove an arbitrator are better off if it is a proceeding under the rules of the American Arbitration Association (“AAA”) or JAMS than if it a proceeding governed under the Federal Arbitration Act (“FAA”) or the Revised Uniform Arbitration Act (“RUAA”). (more…)

HOWARD & HOWARD CONGRATULATES OUR TWELVE ATTORNEYS NAMED TO MOUNTAIN STATES SUPER LAWYERS AND RISING STARS 2018 (WEDNESDAY, JUNE 27, 2018)

Royal Oak, Michigan, June 27, 2018: Twelve of Howard & Howards attorneys were recently named to the 2018 Mountain States Super Lawyers and Rising Stars lists as a result of a patented selection process. This process includes peer evaluation and independent research. Mountain States Super Lawyers covers the states of Nevada, Utah, Montana, Idaho and Wyoming. Only five percent of the lawyers in each of these states are named to Super Lawyers and two and one half percent to Rising Stars.

The Howard & Howard attorneys and the practice areas under which they are listed in 2018 Mountain States Super Lawyers and Rising Stars are as follows:

Nevada Office Super Lawyers:

Nevada Office Rising Stars:

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners.The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

The Secrets of Power Negotiating

The Mediation Process

  • For printer-friendly version of this article, click here
  • What is the client’s role in the mediation?
  • Discuss whether the client will speak directly with mediator and/or the other party
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

(more…)

REFERENCE TO JAMS RULES IN CONTRACT ALLOWS ARBITRATOR TO DECIDE ARBITRABILITY

by Guest Blogger Michael R. Lied

Usually, it is up to a court to determine if parties to an agreement have decided to let an arbitrator decide disputes under that agreement. But not always.

Simply Wireless sells cellular telephone goods and services to consumers and provides advertising, marketing, and distribution services to other businesses in the telecommunications industry. Simply Wireless is the registered owner of multiple trademarks using the name SIMPLY WIRELESS. Simply Wireless is also the originator and owner of the trademark SIMPLY PREPAID in connection with the sale of cellular telephone goods and services.

T-Mobile also provides cellular services. Although T-Mobile and Simply Wireless compete, they have partnered on several projects.  T-Mobile and Simply Wireless partnered on a project by executing a contract referred to as the “HSN/QVC Agreement”. (more…)

So, You Want to Own Your Own Business in Nevada? The Nevada Business Law Blog's Primer on Nevada Business Law

So, You Want to Own Your Own Business in Nevada? The Nevada Business Law Blog’s Primer on Nevada Business Law

A Review of Nevada’s Corporate Law

Original Publication Date: 3.11.15

This article explores the advantages and disadvantages of various types of business entities in Nevada.  Generally, the main advantage of a corporate entity is to shield its owners from placing their personal assets in jeopardy for the obligations of the business.  If you are unsure which entity is right for you, call today 702.667.4828 for a consultation with one of our business attorneys.

(more…)

Standard Alternative Dispute Resolution (Arbitration and Mediation) Clauses

I often hear litigators and clients complaining that the process of arbitration is flawed and does not deliver on its aspirations to provide a cheaper, quicker alternative to litigation in court.  My response is that they are not really upset with the process of arbitration or mediation, but with the person who drafted the Alternative Dispute Resolution clause in their contract.  The Arbitrator must administer the arbitration proceed pursuant to how the parties wrote the agreement.  Therefore, as I wrote in this post, if you want a better process, write a better contract.  I have endeavored to provide both my preferred standard ADR clause (with explanations), but also some alternative model arbitration, mediation, and ADR clauses from other trusted sources.  The drafter should determine the process which will best benefit each client and draft the clause accordingly.

The italicized language below explains the rationale behind clauses and why one might choose that clause over another alternative.[1] (more…)

FOR IMMEDIATE RELEASE

March 02, 2018

 

EASTERSEALS NEVADA ACQUIRES TOYS 4 SMILES TO BENEFIT PATIENTS AND FAMILIES  

Celebrated local non-profit becomes permanent program at Easterseals Nevada

LAS VEGAS – In an effort to expand its reach and create occupational opportunities for adults with disabilities, Easterseals Nevada has acquired Toys 4 Smiles, a local non-profit organization dedicated to creating toys from scrap materials for children in need.  A staple in the valley for more than a decade, Toys 4 Smiles will continue operating as a permanent program within the Easterseals Nevada organization.

Created in 2005, Toys 4 Smiles began as a community-based campaign by founder Rex Doty to manufacture wooden toy cars for underprivileged children in the Las Vegas valley. Each toy starts as a simple block of donated scrap hardwood and ends as a polished wooden car, created entirely by retired volunteers. Since its inception, the non-profit has donated over 300,000 cars to first responders and philanthropic organizations such as Safe Nest, The Shade Tree, Opportunity Village and Candlelighters Childhood Cancer Foundation of Nevada.

“We have long admired Toys 4 Smiles’ mission to bring quality toys to children who need it most,” said Brian Patchett, president and CEO of Easterseals Nevada. “By bringing them into the Easterseals family we are able to both ensure longevity for their mission and extend additional services to bring smiles to those in need.”

With this acquisition, Toys 4 Smiles cars will also be used to assist in developmental therapy for children with disabilities and will enhance services at Easterseals new Children’s Therapy and Autism Clinic. Additionally, instead of relying only on volunteer woodworkers, Easterseals will expand the program to create occupational opportunities for veterans and adults with disabilities who have completed its Community Training Services program, providing adults with disabilities the opportunity to earn a paycheck. In an effort to create a seamless transition, Toys 4 Smiles president and founder Rex Doty and board members Donovan Thiesssen and Jay Young have joined the Easterseals Nevada Board of Directors to spearhead the expansion efforts for the program.

The Toys 4 Smiles workshop is currently located at 4315 Dean Martin drive. For more information, please visit EastersealsNevada.org or call (702) 870-7050.

About Easterseals Nevada

Since 1950, Easterseals Nevada has been advocating for, and working with, infants, children, youth and adults who have disabilities and other challenges.  We work to address our community’s social service gaps, and to leverage partnerships and other strategic opportunities to increase participation in economic and civic life for all people.  Easter Seals Nevada is one of Nevada’s largest community disability agencies serving more than 9,000 people with disabilities and their families each year. To keep up with Easter Seals Nevada’s news and events, follow us on Twitter @EasterSealsNV and like us on Facebook or visit our website at www.eastersealsnevada.org.

 

###

Media Contact:

Dayna Calkins

Kirvin Doak Communications – 702.737.3100

DCalkins@kirvindoak.com

 

Las Vegas: James Kohl and Jay Young, of Howard & Howard in Las Vegas, have been reappointed Settlement Judges by the Nevada Supreme Court for a second three-year term.

The announcement was made by Nevada Supreme Court Justice Ron Parraguirre.

The Nevada Supreme Court has mandated that certain matters on appeal participate in an Alternative Dispute Resolution (ADR) program to mediate disputes before an appeal is heard.

The Settlement Judges, who serve as impartial third parties, dont rule on the cases they hear. Instead, they work with the parties in communicating their interests to promote a mutually acceptable resolution to the dispute.

According to the Court, its Settlement Judges are required to have a high level of training and experience as professional mediators. Over half of the cases assigned to the ADR program settle with the assistance of a Settlement Judge.

Kohl, a partner at Howard & Howard, has been an arbitrator and mediator for the State Bar of Nevada Fee Dispute Committee and an arbitrator for the Nevada Courts Annexed Arbitration Program. In addition, he acts as a private mediator.

Recognized by his peers as an outstanding attorney, Kohl is AV-rated by Martindale-Hubbell. He has also been named to the Nevada Business Top 100 Lawyers and to Mountain State Super Lawyers.

Young, also a partner with the firm, is a national panelist with the American Arbitration Association, an arbitrator/mediator with Advance Resolution Management and an arbitrator with the Better Business Bureau.

In addition, Young is AV-rated by Martindale-Hubbell and has been recognized by Mountain States Super Lawyers, Best Lawyers in America, Nevada Business magazine Legal Elite and Vegas, Inc. Top Lawyers.

About Howard & Howard

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners. The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

Motions to Vacate Modify, Correct, or Modify an Arbitration Award

The United States Supreme Court established over 160 years ago that courts in the U.S. will not set aside an arbitration for error in law or fact.[1]  The Supreme Court held then that if an arbitrator has “given their honest, incorrupt judgment on the subject-matters submitted to them, after a full and fair hearing of the parties, [the parties] are bound by it; and a court of chancery have no right to annul their award because it thinks it could have made a better.”[2]  The Court argued that by voluntarily choosing by contract to arbitrate rather than litigate a dispute, the parties have bargained to be bound by the arbitrator’s construction of the agreement, which should not be disturbed by the courts.[3]  Further, if a court were to choose to weigh the merits of a grievance, it would “usurp[] a function which is entrusted to the arbitration tribunal.”[4] (more…)

HOWARD & HOWARD ATTORNEYS JAMES KOHL AND JAY YOUNG REAPPOINTED SETTLEMENT JUDGES BY NEVADA SUPREME COURT (TUESDAY, JANUARY 30, 2018)

Las Vegas, January 30, 2018: James Kohl and Jay Young, of Howard & Howard in Las Vegas, have been reappointed Settlement Judges by the Nevada Supreme Court for a second three-year term.

The announcement was made by Nevada Supreme Court Justice Ron Parraguirre.

The Nevada Supreme Court has mandated that certain matters on appeal participate in an Alternative Dispute Resolution (ADR) program to mediate disputes before an appeal is heard.

The Settlement Judges, who serve as impartial third parties, dont rule on the cases they hear. Instead, they work with the parties in communicating their interests to promote a mutually acceptable resolution to the dispute.

According to the Court, its Settlement Judges are required to have a high level of training and experience as professional mediators. Over half of the cases assigned to the ADR program settle with the assistance of a Settlement Judge.

Kohl, a partner at Howard & Howard, has been an arbitrator and mediator for the State Bar of Nevada Fee Dispute Committee and an arbitrator for the Nevada Courts Annexed Arbitration Program. In addition, he acts as a private mediator.

Recognized by his peers as an outstanding attorney, Kohl is AV-rated by Martindale-Hubbell.

Young, also a partner with the firm, is a national panelist with the American Arbitration Association, an arbitrator/mediator with Advance Resolution Management and an arbitrator with the Better Business Bureau.

In addition, Young is AV-rated by Martindale-Hubbell and has been recognized as one of the Top 100 SuperLawyers by Mountain States Super Lawyers, Best Lawyers in America (arbitration), Nevada Business magazine Legal Elite and Vegas, Inc. Top Lawyers.

About Howard & Howard

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners.The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)