In a unanimous decision authored by Justice Kavanaugh, the U.S. Supreme Court held that under the Federal Arbitration Act (“FAA”), “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract even if the court thinks that the arbitrability claim is wholly groundless.” The decision in Henry Shein, Inc. v. Archer & White Sales, Inc., issued January 8, 2019, addresses a split among the six circuit courts which have heard similar matters and vacates the decision of the Fifth Circuit which held that when a court determines that the request to have the matter arbitrated is “wholly groundless,” the court may deny a motion to allow an arbitrator to determine whether a matter is subject to arbitration.
The Nevada Supreme Court calls its changes to the 2019 Nevada Rules of Civil Procedure (“NRCP”) “exhaustive.” Although the changes do not take effect until March 1, 2019, since they are so comprehensive, a complete read would be advisable for all practitioners. The amended rules (with the committee’s explanatory notes) are available in a downloadable Word document here; a red-lined PDF version can be found here. The amendments largely bring our rules into alignment with the Federal Rules of Civil Procedure (“FRCP”), while retaining some Nevada-centric practices. Those familiar with the FRCP may find the version of NRCP red-lined against FRCP a most helpful document. The changes are too many to summarize here, but I have noted some which may impact civil practice the most regularly. They are presented in numerical order. For a table of the new deadlines and due dates, see here.
Rule 4.1 Waiver of Service:
Rule 4.1 incorporates the federal waiver of service rule, and without FRCP 4(d)(2)’s penalty provision. I’m uncertain what the rule committee intended, but the lack of penalty would seem to result in a defendant merely taking the full 30 days to delay the matter, refuse to waive service, and force the plaintiff to serve the old fashioned way, costing time and money. I have reached out a member of the committee to get a better understanding of the intention and how practitioners can comply with Rule 4.1(a)(1)(4), which requires that the notice contain a discussion of the consequences of failing to waive service. (more…)
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…)
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.
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…)
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…)
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:
- What information must the witness admit?
- What information shows bias or impeaches the witness’ credibility?
- On what items may the witness’ testimony be limited (didn’t hear or see or experience X, Y, and Z)?
- Where is the witness weak?
- What does the witness know that agrees with your case?
Nevada Standards of Review on Appeal—A Digest
Abuse of Discretion
“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…)
Readiness Checklist for Mediation:
Eight Things You Should Discuss With Your Client Before Mediation
- 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?
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…)
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.
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.
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.
Kirvin Doak Communications – 702.737.3100
Confidential business information automatically becomes protected in the law once the statutory definition in NRS 600A.030 is met. There is no requirement that the parties expressly identify the information as a “trade secret”. Should a dispute arise as to the use of the information, determining whether the information used is protected is a matter of applying the statutory definition as a question of fact. Frantz v. Johnson, 116 Nev. 455, 465 n. 4, 999 P.2d 351, 358 n. 4 (2000).
Courts may consider, however, such factors as: (1) the extent to which the information is ascertainable from sources outside the business and the ease with which it can be obtained; (2) whether the information was confidential or secret or was treated as such by the business; and (3) the employee’s knowledge of the confidential information and whether the same was known by competitors. Id., 116 Nev. at 467, 999 P.2d at 358-59. The business is presumed to make reasonable efforts to maintain the secrecy of information that is marked “Confidential” or “Private” in a reasonably noticeable manner. This presumption may only be overcome by clear and convincing evidence that the owner did not take reasonable efforts to maintain the secrecy of the information. NRS 600A.032.
An LLC may be dissolved at any time specified in its articles of organization, upon the occurrence of an event specified in the operating agreement, the affirmative vote of all its members, or upon entry of decree of judicial dissolution. NRS 86.491. In circumstances of judicial dissolution of an LLC, “the District Court may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business of the company in conformity with the articles of organization or operating agreement.” NRS 86.495.
Dissolution requires distribution of an LLC’s assets in the following priority: (1) to creditors, including members who are creditors (does not include contributions); (2) to members in respect to their right to the profits and other compensation by way of income on their distribution; and (3) to members in respect of their contribution of capital. NRS 86.521. “Subject to any statement in the operating agreement, members share in the company’s assets in respect to their claims for capital and in respect to their claims for profit or for compensation by way of income on their contributions, respectively, in proportion to the respective amounts of the claims.” (more…)
Readiness Checklist for Mediation
Counsel should consider discussing the matters below with their client prior to mediating a litigated matter. Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation. For a printer-friendly version of this article, click here.
Explain the Process of Mediation
- What Is Mediation?
- What is the Role of the Mediator?
- What is Your Role at Mediation?
- How Does Mediation Compare to Litigation?
- Why Mediate?
- Who May Attend The Mediation?
- Is Mediation Confidential?
- What Will Happen At The Mediation?
- What Is A Separate Session?
- Can You Speak With Your Attorney Privately Any Time You Want?
- How Long With Mediation Last?
- What Helps To Get The Case Settled?
- Obtain client suggestions for non-monetary solutions, such as future business or payment in kind that may be desirable
- Decide whether an apology to or from the client might be appropriate
Selecting a Mediator
- Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?
- Describe how the mediator selection process works (if specified by contract or otherwise)
- Determine whether an evaluative or facilitative mediator would be best for this case
Explain How the Status of the Dispute Influences the Mediation Process
- Has suit/arbitration been filed?
- Is trial/arbitration looming?
- How long will trial/arbitration take to a final resolution?
- Have there been any continuances?
- Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?
- Are there pending dispositive motions before the court/arbitrator which create some risk?
- How should that risk inform the client’s decision-making?
- Discuss your honest assessment of chances of success on the pending motion
- Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).
- Has the judge/arbitrator made any preliminary decision in the dispute?
- Has the judge/arbitrator indicated an early assessment of either party or their case?
- Either explicitly or implicitly?
- What is the status of discovery?
- How much is completed?
- Are party depositions completed?
- Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;
- Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;
- What discovery needs to be completed?
- What is the estimated cost of completing discovery?
- Are expert witnesses needed?
- What is the estimated cost of the expert witness through the close of discovery?
- What is the estimated cost of the expert witness through the end of trial?
- Regarding previous settlement discussions:
- What are the impediments to settlement presently?
- How can the client and counsel best seek the assistance of the mediator to overcome those impediments?
The Impact of Opposing Counsel on the Case and the Mediation
- Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision
- Discuss how a mediator may assist the parties in dealing with opposing counsel
- Discuss the opposing counsel’s likely approach to the mediation
Settlement Authority at Mediation
- Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)
- Discuss the pros and cons of settlement at certain dollar ranges
- What is the likely result for the client on its best day should the matter go to trial?
- What is the likely result for the client on its worst day should the matter go to trial?
- What is the likely result for the client on an average day should the matter go to trial?
Anticipated Costs of Litigation or Arbitration
- What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)
- The pre-trial costs
- The cost to try the case
- How much has the client spent to date on the litigation
- Is there a right to appeal an ultimate resolution by the court/arbitrator?
- Whether an appeal is available only at the end of the case
- What is the likelihood of either party to appeal should they lose at trial?
- An estimated of the cost to appeal
- An estimated time to complete appeal
- Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it
- Cost and Fee-shifting:
- Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible
- Are litigation costs are recoverable from the other side
- The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)
- How long it may take for the court or arbitrator to resolve the case
What Are the Chances of Success at Trial?
- What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?
- If you obtain a judgment, does the defendant have assets available for collection?
- What is the attorney’s honest assessment of the strength of the opposing case?
- The likelihood that the trial will bring adverse publicity
- Discuss the risks of an adverse judgment, including:
- The availability of adequate liability insurance
- The availability of adequate funds or assets to satisfy a judgment
- Whether a judgment jeopardizes the survival of the client’s business
Jay Young is a mediator in Las Vegas, Nevada.
Download the PDF to discover the advantages to forming a Nevada Corporation over a Delaware Corporation.
In Nevada, the following actions require shareholder approval in the manner designated by the corporation’s governing documents or by a majority of shares if the documents are silent on the issue. The acts are required by Nevada’s corporate statutes linked below:
- Amending the corporation’s articles of incorporation;
- Election of directors;
- Removal of a director;
- Granting voting rights to “control shares” acquired by an “acquiring person” under the “acquisition of controlling interest” statutes;
- Merger, conversion, or exchange;
- The sale of all of the corporation’s property and assets; and
- Dissolution of the corporation.
In Nevada, both the officers and directors of a corporation owe it fiduciary duties. NRS 78.138. Those duties include the duty of care and the duty of loyalty. A fiduciary is a “person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor” and loyalty. Black’s Law Dictionary (8th ed.2004). NRS 78.138 and 78.139 declare the duties specifically owed by a corporation’s fiduciaries. (more…)
The election of directors of a corporation must be held at the annual shareholders meeting by a “plurality of the votes cast at the election” unless the corporation’s articles of incorporation or bylaws require more than a plurality. NRS 78.330. If for any reason directors are not elected pursuant to NRS 78.320 or at the annual meeting, they may be elected at any fairly noticed special meeting of the shareholders. NRS 78.330(1). Moreover, shareholders owning at least 15% of the voting power may apply to the district court to order the election of directors if a corporation fails to hold a meeting within 18 months of its last meeting. NRS 78.345(1). (more…)
Corporate Annual Meetings: What They are and How to Hold and Document Them Correctly
A corporation in Nevada is recommended to hold an annual meeting of its shareholders or members. The meeting may be held anywhere, but must be held in the location and manner provided for in the articles of incorporation and/or bylaws of the corporation. Unless otherwise provided in the articles of incorporation or bylaws, the entire board of directors, any two directors, or the president may call annual and special meetings of the shareholders and directors. NRS 78.310. (more…)
One of the requirements to start a new corporation in Nevada is to complete and file an Annual List of Officers, Directors, and Resident Agent with the Secretary of State’s office “on or before the last day of the first month after filing the articles of incorporation.” NRS 78.150. (more…)
In legal terms, a Registered Agent (“RA”) is a person or business who is designated by a business entity registered with the state to receive service of process when that entity is sued. Service of process is the formal procedure for informing a company that legal action has been filed against it and requiring it to file a response to the same. NRS Chapter 77.
Since a business such as a corporation or limited liability company is not a person, the law requires that a single person be named to accept service of process. A business must therefore designate its RA by filing a form with the Secretary of State. Thereafter, once the RA is served with process papers, the entity is deemed to have received the same and its obligation to respond is triggered.
A joint venture is a contractual relationship in the nature of an informal partnership wherein two or more persons conduct some business enterprise, agreeing to share jointly, or in proportion to capital contributed, in profits and losses. A prime example we see often is a venture for the development of land. In this example, one venturer may own real property and may agree to allow a second venturer to build improvements (an office building, for instance) on the real property and that the venture will sell the real property with the improvements and share in the profits at an agreed-upon rate. (more…)
The Nevada Deceptive Trade Practices Act[i] is a comprehensive consumer protection act, many portions of which apply to all businesses and occupations. If a person makes false or misleading representations or uses deceptive practices in the course of his or her business or occupation, that person may be subject to restraining orders, fines, and criminal penalties.[ii] This Act makes pyramid schemes, [iii] false or misleading solicitation of charitable contributions, [iv] and certain acts with respect to contests, [v] door-to-door sales, [vi] and credit service organizations[vii] “deceptive trade practices” and subjects the person performing any such acts to the penalties listed above. In addition, a victim of deceptive trade practices under this Act can bring an action against the wrongdoer for damages, costs, and reasonable attorney’s fees.[viii]
[i] NRS Chapter 598.
[ii] NRS 598.0979(1), 598.0999.
[iii] NRS 598.110.
[iv] NRS 598.1305.
[v] NRS 598.136 – 598.138.
[vi] NRS 598.140 – 598.2801.
[vii] NRS 598.741 – 598.782.
[viii] NRS 41.600.
Employers, do your zero drug tolerance policies allow you to discipline an employee for using marijuana if the employee is legally using medical marijuana in Nevada? The answer may surprise you.
A recent federal court held that just because marijuana is illegal under federal law does not bar a discrimination claim by an employee based on conduct protected by state medical marijuana laws. In other words, discipline your employees with caution.
Nevada’s law goes even farther. Here, even though an employer does not have to permit an employee to use marijuana in the workplace, it is required to accommodate an employee’s need for medical (not recreational) marijuana.
NRS 453A.800 Costs associated with medical use of marijuana not required to be paid or reimbursed; medical use of marijuana not required to be allowed in workplace; medical needs of employee who engages in medical use of marijuana to be accommodated by employer, other than law enforcement agency, in certain circumstances. The provisions of this chapter do not:
- Require an insurer, organization for managed care or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana.
- Require any employer to allow the medical use of marijuana in the workplace.
- Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:
(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or
(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.
The statute has quite a few inherent problems, including:
- It does not define “employee.” Therefore, employers cannot be sure whether it applies to only current employees or whether it also applies to applicants;
- Second, there is no enforcement mechanism for the statute, leaving an employer unable to predict liability and an employee without a way to challenge an employer’s failure to meet the statute’s requirements;
- In requiring an employer to accommodate the need for medical marijuana, the statute ventured well beyond any mandate imposed by Article 4, Section 38 of the Nevada Constitution; and
- The statute provides two different accommodation standards by first stating that an employer does not need to modify those “job or working conditions” that are “based upon the reasonable business purposes of the employer,” and then stating that an accommodation is not reasonable if it would prohibit an employee from fulfilling any and all job responsibilities.
To our knowledge, this statute has not been tested by the courts. That leaves this area a minefield for the unwary. If you have an employee who is eligible for medical marijuana, contact an employment attorney to discuss your options before disciplining for marijuana use.
Partnership by Estoppel in Nevada
Partnership by estoppel is a statutory recognition that someone “represents himself or herself, or consents to another representing him or her to any one, as a partner” and should therefore be held responsible as a partnership under the law. NRS 87.160(1). A partner is an association of two or more persons doing business together for a profit. NRS 87.060(1).
In other words, if I tell someone that you are my partner and you agree or do not correct me, that person has the right to presume we are acting as a partnership. In a partnership, the partners have unlimited personal liability for the acts of the partnership and the acts of their partners, so holding oneself out as a partner can have huge legal implications. NRS 87.433. Nevada’s Supreme Court has held that the consent to be treated as a partnership may be reasonably implied from the conduct of the parties.
The Moral: unless you want to have unlimited liability for the acts of that person, don’t say they are your partner.
I hear people refer to those with whom they do business as their “partners” frequently. I even hear this from people who are really shareholders in a corporation or members in a limited liability company. I am fairly certain that if most of them understood the potential liability of forming a true partnership, they would never call themselves someone’s partner ever again. Partnerships are relatively easy to form (beware: some court decisions and Nevada’s statutes have held that a partnership can be formed just by telling those with whom you are doing business that you and another person are “partners”), requiring simply an association of two or more persons doing business together for a profit. NRS 87.060(1). Every partner is a fiduciary to the other partner(s). That means the partner has a legal duty to act in the best interests of his or her partners and of the partnership rather than acting in his or her own interest. NRS 87.210. (more…)
Howard & Howard published its comprehensive guide to doing business in Nevada recently. This impressive volume should be on the shelf of every business owner as a handy resource to answer your questions about starting and operating a Nevada business from soup to nuts. The Table of Contents below shows the breadth of the coverage. The book is well worth the $25.00 list price, but if you come to the Howard & Howard Las Vegas office and mention this blog, Jay Young will give you a free copy. Get yours today!
- An Overview of Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
- Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
- Limited Liability Companies . . . . . . . . . . . . . . . . . . . . . . 31
- Other Business Entities . . . . . . . . . . . . . . . . . . . . . . . . . . 43
- Foreign Qualification to do Business in Nevada . . . . . . . . 87
- Business Name Registration Requirements . . . . . . . . . . . . 90
- Purchase and Sale of Businesses and Entities. . . . . . . . . . . 92
- Mergers, Conversions, Exchanges, and Domestication . . . 93
- Business Regulation and Licensing . . . . . . . . . . . . . . . . . . 98
- Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
- Purchase and Sale of Property. . . . . . . . . . . . . . . . . . . . 103
- Deeds of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
- Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
- Construction Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
- Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
- Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
- Mineral Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
- Condemnation / Eminent Domain. . . . . . . . . . . . . . . . 143
- Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
- Labor and Employment Law . . . . . . . . . . . . . . . . . . . . 153
- Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
- Gaming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
- Franchise Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
- Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
- Securities Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 225
- Trusts and Estate Planning. . . . . . . . . . . . . . . . . . . . . . 231
- Family Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
- Tribal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
- Anti-Trust Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
- Consumer Protection Laws. . . . . . . . . . . . . . . . . . . . . . 263
- Reporting Requirements for Foreign Direct Investment 269
- Electronic Transactions . . . . . . . . . . . . . . . . . . . . . . . . 272
- Financing Investments . . . . . . . . . . . . . . . . . . . . . . . . . 275
- Financial Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . 283
- Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
- Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
- Marijuana Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
- Wine Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
- Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Doing Business in Nevada: A Practical Guide (co-author) 2017. This guide is a must for any company doing business in Nevada. It covers everything from how to properly form a business to leases, corporations, limited liability companies, foreign qualifications to do business in Nevada, business name registration requirement, purchase and sale of businesses and entities, mergers, conversions, exchanges, and domestication of business, business regulation and licensing, real estate, deeds of trust, leases, construction law, easements, zoning, minerals, family law, dispute resolution, taxation, franchising, securities regulation, estate planning, banking, and marijuana law. Contact Jay for your copy.
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. Also available on Amazon!
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. Also available on Amazon!
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. Also available on Amazon!
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.
Nevada Civil Practice Manual, Chapter 26: Pre-Judgment Remedies, Jay Young (co-author), State Bar of Nevada Publication (LexisNexis Matthew Bender), 5th Ed. (2005-2016). “The Nevada Civil Practice Manual is written and edited entirely by a team of volunteer attorneys and judges, all of whom actively practice law in Nevada. Their hands-on knowledge of Nevada law and its courts was invaluable in the development of this publication, and their expertise greatly enhances its contents. The publication is managed by the State Bar of Nevada.”
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.
The plaintiff in a lawsuit is allowed to seek as many remedies as are available to her and may choose the one which is most beneficial to her. The doctrine of election of remedies requires:
- The existence of two or more remedies;
- Inconsistency between the remedies; and
- Choice of one or more of the remedies.
How Does a Party Prosecute an Action for Misappropriation of Trade Secrets?
NRS 600A.030(2) defines “misappropriation” as:
(a) Acquisition of the trade secret of another by a person by improper means;
(b) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(c) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(1) Used improper means to acquire knowledge of the trade secret;
(2) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(I) Derived from or through a person who had used improper means to acquire it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(3) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
NRS 600A.040 provides injunctive relief for the actual or threatened misappropriation of trade secrets, stating;
- Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction must be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time to eliminate commercial or other advantage that otherwise would be derived from the misappropriation.
* * *
- In appropriate circumstances, the court may order affirmative acts to protect a trade secret. As used in this subsection, “affirmative acts” includes, without limitation, issuing an injunction or order requiring that a trade secret which has been misappropriated and posted, displayed or otherwise disseminated on the Internet be removed from the Internet immediately.
In Frantz, the Nevada Supreme Court found misappropriation of trade secrets based on the fact that: (l) lists containing information were missing after the former employee left the job; (2) the former employee contacted the plaintiff’s customers to offer “more competitive pricing;” and (3) the former employee’s phone records and other evidence indicated calls to plaintiff’s customers. As a result, the former employee was liable for misappropriation of trade secrets. The Court further found that the competitor had misappropriated trade secrets when the competitor hired the former employee, announced that competitor intended to compete against plaintiff by taking all of plaintiff’s customers, and the competitor hired employees from other competitive companies and asked them to use their knowledge about their former employers’ pricing structure and customer base. Id.
To prove misappropriation under NUTSA, a plaintiff must plead and prove: (1) the existence of a valuable trade secret as defined by the statute; (2) misappropriation through use, disclosure, or nondisclosure of use of the trade secret; and (3) the misappropriation was wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose. Frantz, 116 Nev. at 466, 999 P.2d at 358. The Court has wide discretion in calculating damages, subject only to a review for abuse of discretion. Id. (citing Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1379, 951 P.2d 73, 74 (1997) (citations omitted)).
Abraham Lincoln said: “Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”
So, your attorney has asked if you will agree to mediate your legal dispute. Do you understand what that means? This articles below explain mediation and what you can expect from the process and from your mediator.
What Is Mediation?
What is the Role of the Mediator?
What is Your Role at Mediation?
How Does Mediation Compare to Litigation?
Who May Attend The Mediation?
Is Mediation Confidential?
What Will Happen At The Mediation?
What Is A Separate Session?
Can You Speak With Your Attorney Privately Any Time You Want?
How Long With Mediation Last?
What Helps To Get The Case Settled?
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 tends 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.
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.
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.
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.
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.
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.
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.
What is Your Role?
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 advisor 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.
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, 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.
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.
Mediation FAQ: 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.