Archive for: 2018

Sample Nevada Affirmative Defenses*

RULE 8 DELINEATED AFFIRMATIVE DEFENSES

NRCP 8(c).     In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (more…)

Writ Petition for Denial of Motion to

Dismiss in Nevada

The Supreme Court will entertain writ petitions in the context of a denial of a motion to dismiss when (1) no factual dispute exists and the district court is obligated to dismiss an action pursuant to clear authority under a statute or rule; or (2) an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition.  Beazer Homes Nev., Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132 (2004).

An NRCP 12(b)(5) motion to dismiss shall be reviewed as a summary judgment where the district court treated it as a Rule 56 motion for summary judgment by entertaining matters outside the pleadings.  NRCP 12(b).

This Court reviews the denial of dismissal in these circumstance as though it were an order denying summary judgment.  Witherow v. State Bd. of Parole Comm’rs, 123 Nev. 305, 308, 167 P.3d 408, 409 (2007) (citing Coblentz v. Union Welfare Fund, 112 Nev. 1161, 1167, 925 P.2d 496, 499 (1996)) (granting of motion to dismiss where matters outside the pleadings were considered will be reviewed as granting a motion for summary judgment).

Orders granting or denying summary judgment are reviewed de novo.  Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Therefore, as the Order was issued after consideration of matters outside the pleadings, it should be reviewed de novo.

Although reviewing denial of a motion to dismiss with summary judgment treatment is available to petitioners, this Court reserves its discretion to cases in where there is “no question of fact, and in which a clear question of law, dispositive of the suit, [is] presented for our review.”  Poulos v. Eighth Judicial Dist. Court of State of Nev. In & For Clark Cnty., 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982) (citing Bottorff v. O’Donnell, 96 Nev. 606, 614 P.2d 7 (1980)).

Pursuant to Article 6, Section 4 of the Nevada Constitution: “[t]he court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.” NRS 34.160 provides that “[t]he writ [of mandamus] may be issued by the Supreme Court … to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station …” For more than a century, the Supreme Court has interpreted Nevada’s constitutional and statutory law to vest original jurisdiction in the Supreme Court to issue writs of mandamus.  See State v. Dist. Ct., 116 Nev. 127, 994 P.2d 692 (2000) (citing State ex rel. Curtis v. McCollough, 3 Nev. 202 (1867)).  Thus, the court has the constitutional and statutory authority to issue a writ of mandamus when, in the court’s discretion, circumstances warrant.

A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, or to control a manifest abuse of discretion.  See Beazer Homes, Nev., Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132, 1135 (2004); NRS 34.160.)  An abuse of discretion occurs if the district court’s decision is arbitrary and capricious or if it exceeds the bounds of law or reason.  Crawford v. State, 121 P.3d 582, 585 (Nev. 2005) (citation omitted). “Abuse of discretion” is defined as the failure to exercise a sound, reasonable, and legal discretion.  State v. Draper, 27 P.2d 39, 50 (Utah 1933) (citations omitted).  “Abuse of discretion” is a strict legal term indicating that the appellate court is of the opinion that there was a commission of an error of law by the trial court.  Id.  It does not imply intentional wrongdoing or bad faith, or misconduct, nor any reflection on the judge but refers to the clearly erroneous conclusion and judgment – one that is clearly against logic.  Id. (more…)

Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[M]otions to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsys., Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991).

“Courts will not grant motions to strike unless ‘convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the claim or defense succeed.’”  Novick v. UNUM Life Ins. Co. of America, 570 F.Supp.2d 1207, 1208 (C.D. Cal. 2008) (quoting RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005)).  “When ruling on a motion to strike, this Court ‘must view the pleading under attack in the light most favorable to the pleader.” Id. (citing RDF Media Ltd., 372 F. Supp. 2d at 561).  “Motions to strike apply only to pleadings, and courts are unwilling to construe the rule broadly and refuse to strike motions, briefs, objections, affidavits, or exhibits attached thereto.” Foley v. Pont, No. 11cv1769-ECR-VCF, 2013 WL 782856, at *4 (D. Nev. Mar. 1, 2013); Caldwell v. Smith, No. 94-3066-CO, 1995 WL 555080, at *1 (D. Or. Sept. 1, 1995) (denying motion to strike since motion to dismiss is not a pleading). (more…)

What Constitutes Admissible Evidence

Under Rule 56?

Nevada law provides requires that all fact presented to a court by motion must be by sworn testimony.  Further, “[a]ffidavits/declarations must contain only factual, evidentiary matter, conform to the requirements of NRCP 56(e), and avoid mere general conclusions or argument.”  EDCR 2.21(c).  NRCP 56(e) requires “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The first requirement of Rule 56(e) is that the sworn testimony must be made upon personal knowledge.  See generally Saka v. Sahara–Nevada Corp., 92 Nev. 703, 705, 558 P.2d 535, 536 (1976) (recognizing that affidavits must be based on “the affiant’s personal knowledge, and there must be an affirmative showing of his competency (more…)

Nevada Statutes of Limitation and the Discovery Rule

Statutes of limitation are designed to assure fairness to parties and prevent surprise lawsuits by determining the maximum time allowed after an event within which legal proceedings may be initiated.  As a practical matter, statutes of limitation avoid fraud on the court by disallowing claims to linger “until evidence has been lost, memories have faded, and witnesses have disappeared.”  In re Jim L. Shetakis Distrib. Co., 415 B.R. 791, 799 (D. Nev. 2009) aff’d, 401 F. App’x 249 (9th Cir. 2010) (quoting Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (as quoted in Oltman v. Holland America Line, Inc., 538 F.3d 1271, 1278 (9th Cir. 2008))).  The appropriate accrual date after which a claim may not be filed is a question of law if the facts are uncontroverted.  Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458, 463 (2012).

The time allowed to file a claim may be extended pursuant to the “discovery rule”, which is also known as the inquiry notice doctrine.  The discovery rule is available when fairness dictates that the plaintiff should be allowed more time to file her claim because the nature of the claim was hidden from her somehow.  Claimants must demonstrate the reasons or excuses why the statute should be tolled.  Siragusa v. Brown, 971 P.2d 801, 807 (Nev. 1998).  “This rule requires a plaintiff to use due diligence in determining the existence of a cause of action and delays the accrual of the cause of action until the plaintiff obtains inquiry notice. Bemis v. Estate of Bemis, 114 Nev. 1021, 1025, 967 P.2d 437, 440 (1998) (applying the inquiry notice standard to determine when the applicable statute of limitations ran).” (more…)

“The court looks with disfavor on motions to exceed page limits, so permission to do so will not be routinely granted.”  LR 7-3(c).

 

[INSERT CAPTION]

 

[PARTY NAME] hereby moves this Court, pursuant to Rule 7-3 of this Court’s Local Rules of Civil Procedure, for an Order granting [INSERT PARTY NAME] leave to file [NAME OF MOTION] in excess of twenty pages. In support of this motion, [INSERT PARTY NAME] states as follows:

  1. Local Rule 7-3 provides, in relevant part, that “[r]eply briefs and points and authorities shall be limited to twenty (20) pages, excluding exhibits.”
  2. [INSERT PARTY NAME] filed its [NAME OF MOTION] on [DATE] (Docket No. [NUMBER]). [INSERT PARTY NAME]’s [NAME OF MOTION] totals approximately [PAGES] pages.
  3. [INSERT PARTY NAME] has made every effort to be both brief and complete in its reply memorandum, as required by Local Rule 7-4. Because of [REASONS JUSTIFYING THE NEED FOR A LENGTHY PLEADING], [INSERT PARTY NAME] respectfully submits that a presentation of all the relevant facts and legal arguments requires greater length than permitted in a standard-length reply memorandum.  [INSERT FACTS AND REASONS FOR THE MOTION IN COMPLIANCE WITH LR 7-3(c)].

WHEREFORE, [INSERT PARTY NAME] respectfully requests

  1. That this Court allow [INSERT PARTY NAME] to file its [NAME OF MOTION] in excess of twenty (20) pages; and
  2. That this Court accept the [NAME OF MOTION] filed by [INSERT PARTY NAME] (Docket No. [NUMBER]), which is in excess of twenty (20) pages.

[DATE]

Respectfully submitted,

[COUNSEL NAME]

IT IS SO ORDERED:

________________________________

UNITED STATES MAGISTRATE JUDGE

DATED: ________________________

In Nevada, a claim for civil conspiracy requires: (1) two or more parties; (2) acting in concert; (3) with an intent to accomplish an unlawful objective for the purpose of harming another; and (4) damages. Consolidated Generator-Nevada Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 917 P.2d 1251, 1256 (1998).  When alleging civil conspiracy between corporations, one must plead and prove that agent(s) of each corporation involved acted outside their employment and personally became a conspirator.

Under the Intracorporate Conspiracy doctrine, members of a corporation, such as officers or employees, cannot be held to have conspired among themselves, because the corporation and its agents constitute a single actor for purposes of law. Therefore, the plurality of actors requirement needed to constitute a conspiracy is not satisfied.  “Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacity on behalf of the corporation not as individuals for their individual advantage.” Collins v. Union Federal Savings and Loan Association, 99 Nev. 284, 304, 662 P.2d 610, 622 (1983). “[I]n order to sustain a claim for civil conspiracy for agents of a corporation are involved, it is necessary to show that one or more of the agents acted outside of the scope of their employment to render them a separate “person” for purposes of the conspiracy.” Faulkner v. Arkansas Children’s Hospital, 69 S.W. 3d, 393, 407 (Ark. 2002). Thus, it is incumbent upon the Plaintiff to allege sufficient facts that corporations which are alleged to be agents of one another received “a benefit wholly separable from the more general and indirect corporate benefit always present under the circumstances surrounding virtually any alleged corporate conspiracy.” Seleman v. Am. Sports Underwriters Inc., 697, F. Supp. 225, 239 (W. D. VA 1988). See also Trau-Med of Am. Inc. v. Allstate Ins. Co., 71 SW 3d 691, 704 (Tenn. 2002) (affirming dismissal of a conspiracy claim and noting “in this case, the plaintiff does not even intimate much less expressly allege in the complaint that the corporate agents involved in conspiratorial conduct were acting outside the scope of their employment or that they were pursuing their own personal objectives”).

The law in Nevada has consistently held that a superseding intervening cause is an interfering act that overcomes the original culpable act, and where the intervening act is an unforeseeable, independent, non-concurrent cause of the injury. Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970) (a negligence action will not stand when there is an intervening cause that in and of itself is “the natural and logical cause of the harm.”).  In effect, the intervening cause must break the chain of causation.

In the case of Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256, Mr. Justice Strong, speaking for the supreme Court of the United States, said:  “In the nature of things, there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.”

Konig v. C.C.O. Ry., 36 Nev 181, 212, 135 P. 141, (1913).

Complying with the Meet and Confer Requirement in Nevada Discovery Disputes

Nevada law requires that counsel, before filing a motion regarding a discovery dispute, meet and confer in an attempt to resolve the matter without court intervention.  This article discusses the requirements of that obligation, together with the mechanics of how the parties must be prove compliance with the requirement to the court.

The Eighth Judicial Court Rule (“EDCR”) 2.34 provides, in relevant part:

(d) Discovery motions may not be filed unless an affidavit of moving counsel is attached thereto setting forth that after a discovery dispute conference or a good faith effort to confer, counsel have been unable to resolve the matter satisfactorily. A conference requires either a personal or telephone conference between or among counsel. Moving counsel must set forth in the affidavit what attempts to resolve the discovery dispute were made, what was resolved and what was not resolved, and the reasons therefor. If a personal or telephone conference was not possible, the affidavit shall set forth the reasons.

(more…)

Can the Confidential Documents of a Non-Party be Subpoenaed?

If you have documents which require that you hold them in confidence, but receive a subpoena requiring the disclosure of those documents, can you withhold the documents?  In this situation, non-parties served with a subpoena can file a timely objection and ask the court to quash or modify the subpoena to protect them from disclosing privileged or protected matter, trade secrets or confidential commercial information.  See Fed.R.Civ.P. 45(3); see also United States v. Fed’n of Physicians & Dentists, Inc., 63 F. Supp. 2d 475, 479 (D. Del. 1999).

A confidentiality requirement alone is generally not sufficient to warrant a protective order. “[P]rivate confidentiality agreements do not preclude the production of documents for the purpose of discovery.”  In re C.R. Bard, Inc. Pelvic Repair Systems Products Liability Litigation, 287 F.R.D 377, 384 (S.D. W.Va. 2012) (citing Zoom Imaging, L.P. v. St. Luke’s Hosp. and Health Network, 513 F.Supp.2d 411, 417 (E.D.Pa.2007); Niester v. Moore, No. 08–5160, 2009 WL 2179356, at *3 (E.D.Pa. July 22, 2009)). (more…)

Rule 45 Requires That a Party Imposing an Undue Financial Burden on a Third Party Must    Reimburse its Costs

Rule 45 provides that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”  Fed. R. Civ. P. 45(d)(1).  Discoverable information from a non-party is construed more narrowly, and is weighed against the potential prejudice to the non-party.  See Laxalt v. McClatchy, 116 F.R.D. 455, 458 (D.Nev.1986) (“The standards for non-party discovery … require a stronger showing of relevance than for simple party discovery.”); Litton Indus., Inc. v. Chesapeake & Ohio Railway Co., 129 F.R.D. 528, 529-30 (E. D. Wis. 1990) (providing that “records of non-party shipbuilder concerning ship construction” were germane to establishing ship construction costs for damage purposes and would not prejudice the producing non-party; however, the other vast categories of  documents sought regarding business operations were not discoverable from the non-party).  The rules require that the courts be sensitive to the costs imposed on third parties, protecting them against significant cost.  Watts v. S.E.C., 482 F.3d 501, 509, 375 U.S.App.D.C. 409, 417 (D.C. Cir. 2007). (more…)

Jay Young is a top mediator in Las Vegas, Nevada.  ADR Certified since 1994.  Additional 40 hour certification and graduate of Pepperdine Law’s Strauss Institute for Dispute Resolution’s  “Advanced Mediation: Skills and Techniques” program.  Jay is a Nevada Supreme Court Settlement Judge (mediator), a Judge Pro Tem, a Special Master, and a National Mediation Panelist for the American Arbitration Association and Advanced Resolution Management.  Contact him at (855) 777-4476.  Go here for Jay’s full bio.

What Is Mediation?

Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting.  It is more akin to marriage counseling than litigation.  The mediator will not be deciding any outcome but will try to get the parties to come to an agreement with which they can both live.  According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:

acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial 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. 

Since no two disputes are alike, no two solutions will be the same.  The process of how mediation proceeds will therefore depend largely on the needs of those involved.  I will attempt to illustrate some of the possible ways a mediation might proceed.

What is the Role of the Mediator?

As a mediator, I believe my first role is to understand the dispute between the parties.  The parties to the suit have the most information about the issues that they currently face.  To help them reach a resolution, I need to understand the genesis of the dispute through its current status.  Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute.  Your brief should not be a trial advocacy brief or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me.  You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims.  Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.

A good brief will contain:

  • A factual summary, including any factual disputes;
  • A short statement outlining the type of work/business of every party, if relevant;
  • A chronology of events, if relevant;
  • A glossary of technical terms, if relevant;
  • A list of the important parties and their relation to the dispute;
  • An outline of the legal issues;
  • A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);
  • A candid evaluation of the relative strengths and weaknesses of each party’s case;
  • A procedural history of the litigation, and any upcoming deadlines, including a trial date;
  • A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);
  • Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and
  • Any terms or conditions that the party or parties believe should be included in a settlement agreement.

Second, attorneys sometimes want all mediation briefs to be confidential.  There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other.  If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.

While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side.  Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.

Third, I will not decide who wins your dispute.  I do not “take sides”— I am not a judge, jury, or an advocate.  My job is to help each side come to an agreement. You are the one who decides if you are willing to accept any offer made by the other party.  I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward.  At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear.  I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement.  Most parties to mediation at one time or another express unrealistic goals or settlement offers.  Rest assured that I will discuss “reality” with both side of the dispute.

Fourth, I will try to help the parties find common ground.  As I do so, my goal is to guide the process in a fair fashion.  Sometimes that means discussing money being paid from one side to another.  Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.

Finally, understand that I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party.  These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.

What is Your Role at Mediation?

             In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation.  Much of that presentation, if not all, focuses on the past.  In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important adviser to you, but you play a more central role.  I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward.  I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet.  Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future.  Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.

How Does Mediation Compare to Litigation?

Litigation is about proving your case and having a judge, or an arbitrator declare a winner; one party wins and another loses.  In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor.  Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will.  Mediation is designed to try to find a resolution that is a win-win.  Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation.  Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.

In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points.  Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does.  Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories.  I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak.  Be honest about your “bad facts”.  All cases have bad facts and neither yours nor your opponent’s case is an exception.  Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.

Lastly, in litigation, someone else determines your future.  It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong.  You will lose all control over the outcome.  Conversely, by mediating your dispute, you can maintain control over the outcome.

Why Mediate?

The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result.  Every experienced litigator can point to cases they won when they didn’t think they had a chance winning.  They can also point to times when if there was any justice, they would have won, but lost.  There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.  A mediated result gives you certainty without the risk of litigation.

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision.  The study surveyed thousands of cases in California and New York over a five-year period.  It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time.  In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however.  Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them.  Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs who fared worse than the last offer, received on average $43,000 less than the last offer given before trial.  Some studies suggest that 95% or more of lawsuits settle rather than go to trial.  Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later?  Doing so will save time, aggravation, stress, and money.  That said, mediation will not be an easy process.  At times, you may feel uncomfortable, pressured, and perhaps even emotional.  If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.

There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible.  It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal.  Once the parties have come this close to a settlement, the last thing they should do is to give up.  The easy answer will be to walk out the door in frustration.  But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation.  If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand.  Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable.  If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit and allow the mediator a chance to give you a reason to stay.  If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.

Who May Attend The Mediation?

All parties directly involved in the dispute should attend the mediation.  You and your attorney, as well as the other party and their counsel need to appear.  Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone.  If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person.  If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process.  Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.

Is Mediation Confidential?

Yes, mediation proceedings are confidential.  There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand:  1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.

As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side.  I will absolutely hold those in confidence unless you later authorize me to share that information with someone.  The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement.  The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.

Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means.  This point is so important that it is written into the law.  First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.”  Nevada Revised Statutes 48.105.  Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court.  Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings.  Nevada Revised Statutes 48.109(3).  Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.”  Nevada Revised Statute 48.109(2).

Mediators may not share confidential information you provide to him or her to your opponent.  Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential.  Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential.  I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential.  There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information.  Finally, communications between you and your counsel are attorney-client privileged communications protected by law.

What Will Happen At The Mediation?

First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet.  I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better.  Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present.  I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.

Second, I like to start the day with a short joint session.  In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding.  Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions.  I will ask for a commitment to the process of the mediation.  You should be prepared to commit to making a good faith effort to settle your differences at mediation.

What Is A Separate Session?

A separate session is sometimes referred to as a caucus or a private session.  It is simply a private meeting between a mediator and one party (with that party’s counsel).  I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall and will not be able to hear one another’s separate session.  I then meet separately with each party.  These sessions can be as short as a few minutes and as long as necessary to make progress.

The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact.  Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another.  It does not mean that I am in the other room “drinking the kool-aid” being served by the other side.  Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution.  During a separate session, a mediator may simply gather information before even asking either party to make any offer.  Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.

Can You Speak With Your Attorney Privately Any Time You Want?

Yes!  All you have to do, whether in a joint session or separate session, is tell me and I will make arrangements for privacy so that you can speak freely with your counsel.

How Long Will the Mediation Last?

No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process.  The more complex the problem, the more likely that the mediation will take some time to come to a conclusion.  I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter.  Most business mediations take at least a half a day, but complex matters can go a full day or longer.  Bring any item with you that you need to be comfortable.  Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.

What Helps To Get The Case Settled?

Everything I have covered in this article is designed to assist you in trying to resolve your dispute.  The more you prepare, the more likely you are to reach a settlement.  Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise.  If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you.  If you are an injured party, you may likely feel that no amount of money can really make the past go away.  Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation.  The sweet spot for settlement is somewhere between those two extremes.

Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value.  Jurors are strangers to your case and may have differing beliefs and attitudes toward you.  Jurors are often suspicious of people who bring lawsuits and of their attorneys.  They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money.  This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify.  On the other hand, juries tend to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished.  Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias.  Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.

Abuse of Process Claim Requires an Allegation of Abusive Acts After the Filing of a Claim

An abuse of process claim in Nevada has two fundamental elements: (1) an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular conduct of a proceeding.  Executive Mgmt. Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 843, 963 P.2d 465, 478 (1998).  The action for abuse of process hinges on the misuse of regularly-issued process.  Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 606, 503 P.2d 9 (1972).

The mere filing of a complaint itself is insufficient to establish the tort of abuse of process.  Hampton v. Nustar Managment Financial Group, Dist. Court, (D. Nev. 2007); Laxalt v. McClatchy, 622 F. Supp. 737, 752 (D. Nev. 1985).  Instead, the complaining party must include some allegation of abusive measures taken after the filing of the complaint in order to state a claim.  Id.  Merely alleging that an opposing party has a malicious motive in commencing a lawsuit does not give rise to a cause of action for abuse of process.  Id.; Curiano v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984). (more…)

A Subpoena Seeking Documents from a Third Party That Could be Obtained from a Party is Unduly Burdensome

The discovery standards and case law applied when seeking documents or information from non-parties differ from those of a party to the litigation. The limits on discovery should be more narrowly construed when non-parties are the target of discovery. Dart Indus. Co., Inc. v. Westwood Chemical Co., 649 F.2d 46, 649 (9th Cir. 1980) (recognizing that although there is a strong policy in favor of liberal discovery, there is potential for abuse in applying that policy to nonparties); In re Subpoena to Apple, Inc., No. 5:14-cv-80139-LHK-PSG, 2014 WL 2798863, *2 (N.D. Cal., June 19, 2014) (“Discovery may be limited to ‘protect third parties from harassment, inconvenience, or disclosure of confidential documents.'” quoting Dart, supra); Edwards v. California Dairies, Inc., 2014 WL 2465934 at *2 (“While discovery should not be unnecessarily restricted, discovery is more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.” citing Dart, supra).  Pursuant to Rule 45(c)(2)(B), which allows the answering party to timely object to the Subpoena, once a party raises a timely objection to a Subpoena, it is not required to produce documents, or even search for them, until the subpoenaing party obtains an order compelling the same.  Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, at 494 & n. 5 (9th Cir. 1983)); see also Forsythe v. Brown, 281 F.R.D. 577, 587 (D.Nev.2012) report and recommendation adopted, 3:10–CV–00716–RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012). (more…)

Once you have exhausted the witness’ knowledge regarding their knowledge of the subject matter of the dispute, filled in the gaps, and created usable testimony by gaining recapitulation and are about to conclude the deposition, you want to do all that you can to make sure the witness cannot later change testimony without looking biased or lacking in veracity.  Consider asking the following questions which will provide you with some good testimony in the event the witness attempts to materially change his or her testimony at the time of trial:

  • Witness, do you agree that I have given you every opportunity to tell me what you want the court to know about the incident leading to this suit?
  • Do you agree that you have given me truthful testimony today?
  • Is there anything that you think is important about the incidents related to this lawsuit that I have not asked you about?
  • If there is, please tell me about that now.
  • So, you have told me everything that you believe is important about this lawsuit?

Gaining this testimony will not prevent the witness from changing testimony, but it will allow you to highlight the fact that the witness didn’t think the “new” testimony was important at the time of the deposition, and allow you to argue that the trier of fact should discount the testimony for that reason.

Royal Oak, Michigan, August 28, 2018: Howard & Howard Attorneys PLLC is pleased to announce that twenty-nine of our attorneys were selected by their peers for inclusion in The Best Lawyers in America® 2019. Since it was first published in 1983, Best Lawyers®has become universally regarded as the definitive guide to legal excellence. Best Lawyers® lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world), and almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world were received. For the 2019 Edition of The Best Lawyers in America®, 7.8 million votes were analyzed, which resulted in almost 60,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers® is considered a singular honor. Corporate Counsel magazine has called Best Lawyers® “the most respected referral list of attorneys in practice.”
(more…)

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…)

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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

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