Recent Posts in Nevada Law Category

Nevada law requires that any driver involved in a traffic accident immediately stop his vehicle at the scene of the accident or, if his vehicle is obstructing traffic, to a location as close as possible. The law also requires that the driver of any vehicle involved in an accident file a report with the police department.

Assembly Bill No. 71 changes these laws. The bill clarifies the procedures for traffic accidents outlined in NRS 484.221 and modifies a requirement of NRS 484.223.

NRS 484.221 states that a driver involved in a traffic accident must move his vehicle if it is obstructing traffic. The bill changes the original statute to include the words: "As soon as reasonably practical." The bill also adds that the vehicle must be able to be moved "safely."

Assembly Bill No. 71 also adds a new section that changes NRS 484.223.

NRS 484.223 states that: "The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall... forthwith report such accident to the nearest office of a police authority."

The new bill changes this requirement and provides that: "A driver who moves or causes his vehicle to be moved...is not required to file a report pursuant to NRS 484.223 or 484.229." If a driver moves or causes his vehicle to be moved then that driver is no longer required to file a report.

Existing law provides immunity from civil liability to a person who serves or sells an alcoholic beverage to another person for damages caused by an intoxicated person as a result of that service or sale. (NRS 41.1305) Section 2 of this bill limits that immunity to a person who serves, sells or furnishes an alcoholic beverage to another person who is at least 21 years of age. In contrast, section 2 makes a person liable in a civil action for damages caused as a result of the consumption of alcohol by an underage person if he knowingly served, sold or furnished alcohol to the underage person or allowed the underage person to consume alcohol on premises or in a conveyance belonging to him or over which he had control. The liability created does not apply to a person who is licensed to serve, sell or furnish alcoholic beverages or to an employee or agent of such a person.

Section 1 of this bill further makes a person liable in a civil action for damages caused as a result of the use of a controlled substance by another person if the person knowingly served, sold or furnished the controlled substance or allowed the other person to use a controlled substance in an unlawful manner on premises or in a conveyance belonging to the person allowing the use or over which he has control.

I will report on interesting legislative developments over the next few months.

AB 468, effective October 1, 2007, requires providers of health care who refer patients to or recommend physical therapy to a patient to provide a written disclosure to the patient of any financial interests that the provider of health care has in a facility recommended or to which a patient is referred. This bill also clarifies that this new requirement does not authorize a referral or recommendation which is otherwise prohibited.

"Over the past 30 years, Nevada's Judicial and Legislative Branches have partnered to promote the creation of an intermediate appellate court - the Nevada Court of Appeals - and are in the process of doing so again.

A new study compiled by the Nevada Supreme Court at the behest of the Nevada Legislature demonstrates that the time is right to establish the new court level.

Nevada is one of just 11 states that do not have an intermediate appellate court, placing the burden on the Nevada Supreme Court to resolve all appeals. Currently, the seven-member Court must address more than 2,000 matters annually - one of the heaviest caseloads in the nation. 

Nevada Supreme Court Chief Justice William Maupin has announced the creation of a commission to study the way legal assistance is provided for criminal defendants who cannot afford to hire their own attorneys.

Chief Justice Maupin said the Commission on Indigent Defense, which is the second Supreme Court commission to be announced in two weeks, will study the issue statewide.

The Commission will be chaired by Justice Michael Cherry, who had a history of public sector criminal defense service before becoming a judge. Chief Justice Maupin will be an ex officio member.

"The Supreme Court believes deeply in the principle that all indigent defendants should be provided effective attorney representation so their rights are preserved and the integrity of the court system is protected," Chief Justice Maupin said.

Justice Cherry added that "when court appointed attorneys are ineffective or inadequate, it sometimes results in cases being reversed and new trials ordered. "That is costly for taxpayers and an additional burden on the court system. The best solution is to have competent, experienced, and effective attorneys available to represent indigent defendants."

Systems for providing representation for those unable to afford their own attorneys range from state and county public defender offices to contract attorneys and court appointed lawyers.

Problems arise when a case has multiple defendants and each defendant requires a separate attorney unconnected to attorneys for the other defendants. It is not unusual in criminal cases for defendants to request public funded attorneys.

Chief Justice Maupin noted that while the indigent defense issue has become controversial in Clark County, the problem is also acute in rural counties where attorneys are rare. Attorneys in rural conflict cases often must be brought in from urban centers.

"This Commission will address the issue from a statewide standpoint so we can determine what works best for each area, given the available resources," he said. "We are aware of the costs involved and hope the Commission weighs the needs of the justice system and the resource requirements."

"What is most important is that we have a criminal justice system that effectively serves the needs of the defendants, the courts, and the public," Chief Justice Maupin said.

Nevada Lawmakers Vote For Doctor-Backed 'I'm Sorry' Law

"A Nevada Senate committee voted Wednesday for a bill that would prevent doctors' apologies to their patients or patients' families from being admitted as court evidence if they're sued for negligence later on. The 'I'm Sorry' measure, SB174, provides that any doctor's expression of 'apology, regret, sympathy, commiseration, condolence or compassion' about a patient's suffering or death can't be used in court. Lawmakers voted to take out the word 'fault' from that list. In a 4-3 vote along party lines, the Senate Judiciary Committee allowed the bill to move forward, with all four Republicans supporting the proposal and Democrats voting 'no.'"

AAJ quoting Joe Mullin, Associated Press, Las Vegas Sun 4/04/07

If this is true, one can only hope that Farmers has gone back to reliance on the discretion of humans rather than the inevitable formulas of computers.

Consolidated appeals from district court orders denying new trials because of attorney misconduct (Docket Nos. 44458 and 44823) and granting new trials, based on similar allegations of attorney misconduct (Docket Nos. 45331 and 45405). Eighth Judicial District Court, Clark County; Stewart L. Bell, Judge (Docket No. 44458); Mark R. Denton, Judge (Docket No. 44823); Nancy M. Saitta, Judge (Docket No. 45331). Second Judicial District Court, Washoe County; Janet J. Berry, Judge (Docket No. 45405).

Vacated and remanded (Docket Nos. 44458 and 44823); affirmed and remanded (Docket Nos. 45331 and 45405); attorney Phillip Emerson referred to the State Bar of Nevada.

PARRAGUIRRE, J., dissented in part.

George T. Bochanis, Las Vegas, for Appellants Tiffany and Joseph Lang.

Edward S. Coleman, Henderson, for Appellant Lioce.

Emerson & Manke, LLP, and Phillip R. Emerson, Henderson; Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellants Castro and Seasholtz and for Respondents Wilson and Knippenberg.

Dennett & Winspear, LLP, and Ryan L. Dennett, Las Vegas, for Respondents Dana and Morry Cohen.

Chad M. Golightly, Las Vegas; Andrew M. Leavitt, Las Vegas, for Respondents Vanessa and Sylvia Cabrera.

John F. Kirsch, Reno, for Respondent Wheeler.

Burris, Thomas & Springberg and Andrew J. Thomas, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.

BEFORE THE COURT EN BANC.

OPINION

By the Court, HARDESTY, J.:

The defendants in each of the four underlying personal injury cases were represented by the same attorney, who gave substantially the same closing argument on behalf of his clients at each trial. Asserting that defense counsel's closing arguments constituted misconduct, the plaintiffs in each case sought new trials, with varying success. These consolidated appeals from the district court orders granting or denying new trials followed.

Because defense counsel's closing arguments encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them, we agree that they amounted to misconduct. In determining whether the district courts properly decided that this misconduct warranted new trials or not, we take the opportunity to revise our attorney misconduct jurisprudence. New trial requests based on attorney misconduct must be evaluated differently depending upon whether counsel objected to the misconduct during trial. When a party successfully objects to the misconduct, the district court may grant a subsequent motion for a new trial if the moving party demonstrates that the misconduct's harmful effect could not be removed through any sustained objection and admonishment. With respect to unobjected-to misconduct, we conclude that the district court may grant a motion for a new trial only if the misconduct amounted to plain error, so that absent the misconduct, the verdict would have been different. When ruling on a motion for a new trial based on attorney misconduct, district courts must make express factual findings, applying the above standards.

In these consolidated appeals, we conclude that in Castro v. Cabrera and Seasholtz v. Wheeler, the district courts did not abuse their discretion by granting the plaintiffs' motions for a new trial. In Lang v. Knippenberg and Lioce v. Cohen, however, we are unable to ascertain from the record whether the district courts abused their discretion in denying the plaintiffs' motions for a new trial. Accordingly, we vacate those orders and remand those two matters for a new decision on the new trial motions, based on the standards announced today.

Finally, we also remand Castro and Seasholtz to the district court to calculate the monetary sanctions we impose on the defendants' attorney and his clients for attorney misconduct, and we refer the defendants' attorney to the State Bar of Nevada for disciplinary proceedings, for his misconduct in these cases.

FACTS

These four appeals involve substantially the same closing argument given in each case by Phillip Emerson, the defendants' attorney. The cases are presented below in chronological order based on the date of the jury trial: (1) Castro (July 2004), (2) Lioce (September 2004), (3) Lang (October 2004), and (4) Seasholtz (November 2004). This chronology shows how Emerson's closing argument developed over time.

Castro v. Cabrera (Docket No. 45331)

This case arose from an automobile accident, in which appellant Luis Castro rear-ended respondents Gabriel and Nicholas Cabrera's vehicle. Police cited Castro for causing the accident. The Cabreras then sued Castro, alleging that they were injured in the accident. Castro retained Emerson to defend against the Cabreras' claims.

The parties attended the court-annexed mandatory nonbinding arbitration program, and because Castro paid his citation without protest, he informally stipulated to his liability for the accident.[1] The arbitrator found in the Cabreras' favor and awarded them damages.

After the arbitration award was rendered, Castro sought a trial de novo, arguing that he was not liable for the accident because the sudden emergency doctrine applied. Castro contended that, under that doctrine, he was not negligent because another vehicle suddenly entered his traffic lane, which caused him to then veer into the Cabreras' traffic lane to avoid being hit.

At trial, during closing argument, Emerson argued that the Cabreras had wasted the jurors' time and the taxpayers' money. Emerson said, "Ladies and gentlemen, at some time, at some point we must say, enough is enough. People must take responsibility for their lives and not blame others for challenges and setbacks. People must stop wasting taxpayers' money and jurors' valuable time on cases like this." Emerson also stated that the Cabreras' case was frivolous and that cases like the Cabreras' were responsible for the decline of the legal profession's reputation. Specifically, Emerson argued:

I also want to apologize if any of you thought that I was overzealous at times during this trial or if any of my remarks or examinations of the witnesses offended. If I offended you, I sincerely apologize. That was not my intention. But, you see, this is a case where the plaintiffs are trying to get something for nothing. You're probably wondering why I've spent so much time and energy on defending this case. It's not a big case. It's not a million-dollar case. You're not going to hear about this in the paper.

But, you see, I have a real passion for this kind of case. It's cases like this that make people skeptical and distrustful of lawyers and their clients who bring these type of lawsuits. It's a big factor as to why our profession is not as honorable in the eyes of the public as it once was. But the only way that people and their chiropractors will stop bringing these cases is if juries start saying no, enough is enough. Our legal process is meant to justly compensate and make one whole, not to make them rich.

The Cabreras did not object to the above statements. Following trial, the jury found in Castro's favor. The Cabreras moved for a new trial, arguing that Castro's attorney, Emerson, had committed attorney misconduct during his closing argument.

When addressing the Cabreras' motion for a new trial, the district court found that Emerson's closing argument constituted misconduct and that, cumulatively, the misconduct permeated the entire proceedings, requiring a new trial. In discussing Emerson's misconduct, the district court specifically referenced Emerson's statements regarding "these type of cases" and the fact that Emerson gave a "personal opinion as to the justness of the case." Castro appeals, arguing that the district court abused its discretion by granting a new trial.

Lioce v. Cohen (Docket No. 44458)

This case involved a multi-vehicle traffic accident, after which appellant Gregory Lioce sued respondents Dana Cohen and John Wilson for injuries he sustained in the accident. Wilson retained Emerson to defend him against Lioce's suit.

At trial, the parties disputed how the accident occurred and who was at fault. Lioce stated that he was traveling eastbound down a Las Vegas street when respondent Dana Cohen turned left into his vehicle. Cohen, however, testified that Lioce changed lanes and hit her vehicle. According to Cohen, when Lioce's vehicle came to rest following the collision with her vehicle, Lioce was then rear-ended by Wilson. Wilson testified that he was not negligent because another vehicle cut in front of him and he swerved, hitting Lioce's vehicle.

During closing argument, Emerson argued, as he did in Castro, that Lioce was wasting taxpayers' money and jurors' valuable time. Emerson expanded that argument, however, and said:

Ladies and gentlemen, at some time, at some point in time, we must say enough is enough. People must accept responsibility for their lives and their actions and not blame others for life's challenges and setbacks.

. . . .

You see, under our system of justice, each plaintiff must prove that he or she is injured. They cannot just say it and receive money. The buck stops here with you, ladies and gentlemen. You are in the position to say enough is enough.

Emerson later continued with his Castro argument, discussing frivolous lawsuits and the public's dim view of the legal profession. Emerson again expanded the argument, saying:

You are probably wondering why I spent so much time and energy defending this case. It's not a high profile case. You are not going to see it on the news. You are not even going to see it in the paper.

But, you see, I have a real passion for cases like this, because it's cases like this that make people skeptical and distrustful of lawyers and their clients who bring personal injury lawsuits. And it's a big factor as to why our profession is not as honorable a profession as it once was in the eyes of the public.

But the only way that people and their lawyers will stop bringing cases like this is if juries start saying: No. Enough is enough.

It has always been said that the American jury system is the conscience of our society; that when a jury speaks through its verdict, it's a reflection of society's values and beliefs and what justice is or should be.

This jury, you, have a tremendous responsibility here. Like I said, it's not a high profile case, but your responsibility here is no less. You have the opportunity here with your verdict to say enough is enough.

Lioce did not object to the above statements.

Following a two-day trial, the jury found for Cohen and Wilson. Lioce moved for a directed verdict or, in the alternative, a new trial based on attorney misconduct. The district court denied both motions, without providing any reasons for the order, and the hearing on the motions was not reported. Lioce appeals, arguing that a new trial was warranted because of Emerson's misconduct during closing argument.

Lang v. Knippenberg (Docket No. 44823)

This case arose when appellants Tiffany and Joseph Lang's nine-month-old daughter's facial area was injured by respondent Jennifer Knippenberg's large dog while she was under Knippenberg's care. After their daughter underwent surgery to repair her tear duct, the Langs sued Knippenberg, alleging that she was negligent. Knippenberg hired Emerson to defend her and argued that she was not negligent because the dog attack was an accident. At trial, the parties submitted evidence supporting their respective views, which indicated that the Lang's daughter was either bitten or scratched by Knippenberg's dog.

During closing argument, Knippenberg's attorney, Emerson, argued that the Langs' case wasted taxpayer and juror resources. He said, "At some point in time we must say enough is enough. People must stop wasting taxpayer's money and jurors['] valuable time on cases like this one." The Langs objected to this statement, and the district court sustained the objection but made no specific admonishment concerning the misconduct.

Continuing with his theory from Castro and Lioce that personal injury cases are generally frivolous, however, Emerson then said:

I must confess, this case, you know, you're probably wondering why I spent so much time and energy defending this case. I mean, it's not a high-profile case. You're not going to see this on the 6:00 o'clock news. You're not going to read about it in the paper. But you see, I have a real passion for this case and cases like it, because it's cases like this that make people skeptical and distrustful of lawyers and their clients who bring legitimate personal injury lawsuits.

And it's a big factor as to why our profession is not as honorable a profession as it once was in the eyes of the public.

The Langs again objected to Emerson's comments, and the district court sustained their objection but made no specific admonishment concerning the misconduct.

Nevertheless, Emerson continued with his Castro and Lioce arguments, further expanding them. He said:

Ladies and gentlemen, life for all of us is full of ups and downs, successes and failures, achievements and setbacks, the difference is that most of us, most of us accept our problems, without trying to blame someone else.

Accidents, things just happen, TMJ [Temporomandibular Joint Dysfunction], growth disturbance, hereditary issues, we take responsibility for our own lives instead of looking for an excuse to sue someone at the drop of a hat. There is a conventional school of thought prevalent now that Americans have become a society of blamers.

Once again, the Langs objected, and the district court sustained the objection, without any additional admonishment.

Emerson then argued:

You send your son or your daughter over to a slumber party and they're running around, maybe there's a pool in the backyard, running around, opening closing the slider, playing tag, something happens. One of them runs into the slider or shut[s] the door and hurts one of the other boy's fingers, is that an opportunity, does that mean you just go out and sue--negligence. It's an accident. If this is not an incident [sic], what is[?]

The Langs did not object after this comment.

After the closing argument concluded, the Langs moved for a mistrial, asserting that Emerson's closing argument on behalf of Knippenberg was prejudicial misconduct. The district court denied their request, finding that because the Langs had objected to Emerson's improper statements and their objections were sustained, a mistrial was unwarranted.

The jury found in Knippenberg's favor. The Langs then moved for a new trial, arguing again that Emerson had committed misconduct during his closing argument that resulted in a jury verdict based on passion or prejudice. The district court denied the Langs' motion, stating that it was "unable to discern from the few portions of the transcript of argument provided that the improprieties reflected therein permeated the proceedings to the extent that a new trial would be warranted under . . . Barrett v. Baird[[2]] and DeJesus v. Flick.[[3]]" The Langs appeal.

Seasholtz v. Wheeler (Docket No. 45405)

This case involved a motor vehicle accident in Reno, Nevada. Appellant James Seasholtz was driving, and respondent Lindsay Wheeler was his passenger, when the front of Seasholtz's vehicle collided with another vehicle. As a result of the accident, Wheeler reported feeling immediate pain in her arm, shoulder, hand, and neck, and she eventually sought medical treatment with two physiatrists,[4] two chiropractors, and a physical therapist. In all, Wheeler incurred approximately $13,632 in medical bills, $9,598 of which was from her chiropractic treatment.

Wheeler eventually filed suit against Seasholtz, alleging that her injuries were the result of Seasholtz's negligence in operating the vehicle and requesting damages for past and future medical expenses. Seasholtz retained Emerson as counsel and argued that Wheeler had been treated excessively and that her current complaints were related to past injuries.[5] Seasholtz's expert, however, connected Wheeler's current injuries to the accident, agreeing with Wheeler that her treatment with the physiatrists was warranted but disputing the extent to which her chiropractic treatment was necessary and effective.

During closing argument, Emerson admitted Seasholtz's liability for the accident, stating that the parties had stipulated to liability and that Seasholtz had accepted his responsibility for causing the accident. Emerson then argued, as he had in Castro, Lioce, and Lang, that Wheeler's case was frivolous and contributed to the decline of the legal profession and legal system. Again, he delivered substantially the same argument, while expanding on it, stating:

You're probably wondering why I spent so much time and energy defending this case. It's not a high-profile case; you are not going to see it on the evening news; it's not a multi-million dollars [sic]--they are not asking for a million dollars. But you see, I have a real passion for cases like this. Because it's cases like this that make people skeptical and distrustful of lawyers and their clients who bring legitimate personal injury suits. And it's a big factor as to why our profession is not as honorable a professional as it once was in the eyes of the public.

But the only way that people and their lawyers and their chiropractors will stop bringing these cases is if juries start saying no: enough is enough. When there is no harm, no foul will be called.

You know, life for all of us is full of its ups and downs, successes and failures, achievements and setbacks. The difference is that most of us accept our problems without trying to blame someone else. We take responsibility for our own lives instead of looking to someone else or looking for an excuse to sue at the drop of a hat.

There's a conventional school of thought prevalent now that Americans have become a society of blamers and excuse makers, that we are unable to accept responsibility for our own lives or the choices that we make and that we now draw our lawyers like gunfighters in the old west, six-shooters; that is often and without hesitation. We call fouls where there is no harm.

I think we have to ask ourselves what has happened to our society when neighbor now sues neighbor over some minor disagreement. Do you honestly think a case like this would have found itself inside of a courtroom 30 to 40 years ago? I think we have to ask ourselves that question. Where has the fundamental values our society has always been known by gone; like honesty, integrity, honor? It's always been said that the American jury system is the conscience of our society; that when a jury speaks through its verdict it's a reflection of our society views and beliefs and values as to what justice is or should be.

This jury, you, have a tremendous responsibility here today. Like I said, this is not a high-profile case, you're not going to see it on the six o'clock news, you're not going to read about it in the newspaper. But your responsibility is no less. You have an opportunity right here today to say that enough is enough and come back here after your deliberation--you're going to receive two verdict forms. This is one of them.

. . . .

. . . We, the jury in the above-entitled action, find for the defendant and against the plaintiff. Date it today's date, . . . and then sign it; and you can go home and rest easy knowing that you did the right thing. Thank you very much, ladies and gentlemen.

Wheeler did not object.

The jury found in Seasholtz's favor. Wheeler moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The district court granted the new trial, finding that Emerson's arguments amounted to misconduct, which had denied Wheeler a fair trial. In rendering its decision, the district court explained that "[t]he pandering committed by [Emerson] was inflammatory and prejudicial. Although Wheeler did not object to the alleged misconduct, the Court finds [Emerson's] comments were of such sinister influence as to constitute irreparable error." Seasholtz appeals, arguing that the district court abused its discretion by granting a new trial.[6]

DISCUSSION

In these appeals, we revisit the standards that the district courts are to apply when deciding a motion for a new trial based on attorney misconduct. We also clarify the proper appellate standards for reviewing the district court's order. Then, we determine whether Emerson's arguments amounted to misconduct and, if so, whether the district courts abused their discretion in granting or denying the new trial motions because of the misconduct.

Attorney misconduct jurisprudence and the standards utilized by the district court for a new trial based on attorney misconduct

As noted, these appeals raise the issue of which standards district courts are to apply when deciding motions for a new trial based on attorney misconduct. These standards should vary depending on whether the purported misconduct was objected to and admonished, objected to and unadmonished, i.e., the objection was overruled, or sustained but not admonished, repeated or persistent, or unobjected to. But in the past, we have not always differentiated between these types of factual circumstances. Thus, in discussing the standards, we examine Nevada's attorney misconduct jurisprudence historically.

Our attorney misconduct jurisprudence begins with Barrett v. Baird, in which we adopted the Ninth Circuit Court of Appeals' rule that, "'[t]o warrant [a new trial] on grounds of attorney misconduct, the flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.'"[7] However, in Barrett, we did not state whether the moving party had objected to the misconduct, and we did not address whether a party must object to alleged attorney misconduct to preserve the issue as a ground for a new trial. Thus, Barrett's permeation rule implicitly applied to both objected-to and unobjected-to misconduct and is unclear in its application. It is not clear whether the permeation rule requires the misconduct to occur throughout the proceeding or whether a single act of misconduct can infect the proceeding to provide a basis for a new trial.

More recently, in DeJesus v. Flick, we addressed whether a party's failure to object to improper argument during trial foreclosed that party from raising the issue in the context of an appeal from an order denying a new trial, and we cited Barrett in reviewing the attorney's unobjected-to misconduct.[8] While recognizing that "[g]enerally, a failure to object to attorney misconduct precludes review," the majority of this court concluded that an exception to the general rule should apply to prevent the "plain error" that resulted from the "inflammatory quality and sheer quantity of misconduct" by the opposing party's attorney.[9] Underlying the majority's "plain error" determination was its conclusion that the verdict was unsupported by the evidence, which indicated that the cumulative effect of the attorney's improper arguments must have "so thoroughly permeated the proceeding that . . . they tainted the entire trial and resulted in a jury verdict that was the product of passion and prejudice," thereby denying the appealing party a fair trial.[10] Thus, DeJesus created a rule that unobjected-to misconduct would be reviewed only for plain error based on the "inflammatory quality and sheer quantity of misconduct."[11]

The dissent in DeJesus offered a different test for resolving new trial motions for unobjected-to misconduct. Noting the importance of making objections in the advocacy system, the dissent urged that claims of misconduct are generally entitled to no consideration unless a timely and proper objection and a request for admonishment has been made.[12] The rationale for this rule is to provide the court with an opportunity to instruct counsel, admonish the jury, and prevent additional prejudice through repeated misconduct, thus avoiding a mistrial or appeal. Referring to this purpose, the dissent quoted Horn v. Atchison, Topeka and Santa Fe Railway Co.,[13] saying, "'It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have.'"[14] In this, the dissent reasoned that appellate review would not be necessary in most cases where misconduct occurred because the trial court would have the opportunity to immediately remedy any prejudice. However, the DeJesus dissent recognized that in rare circumstances, unobjected-to misconduct may be so sinister as to amount to irreparable and fundamental error.[15]

After DeJesus, we again examined unobjected-to misconduct in Ringle v. Bruton, and a majority of this court attempted to clarify that case.[16] The Ringle court first recognized the two salutary purposes of objections: (1) "[o]bjections demonstrate that the objecting party takes issue with the conduct,"[17] and (2) "[t]imely objections . . . conserve judicial resources" by allowing the trial court the "opportunity to correct any potential prejudice and to avoid a retrial," which "may also obviate the need for an appeal."[18] We therefore "reiterate[d] the requirement in civil cases that counsel timely and specifically object to instances of improper argument in order to preserve an issue for appeal."[19] We then stated that we would consider "egregious but unobjected-to misconduct . . . 'only in those rare circumstances where the comments are of such sinister influence as to constitute irreparable and fundamental error.'"[20] We noted that "irreparable and fundamental error" is such that, if left uncorrected, "would result in a substantial miscarriage of justice or denial of fundamental rights," and we pointed out that this error occurs only when "it is plain and clear that no other reasonable explanation for the verdict exists."[21] However, this plain error rule was not enunciated in DeJesus, and the Ringle court's reliance on DeJesus as authority for the rule was improper.

Applying the "clarified" rule to the facts presented in Ringle, we concluded that because Ringle's counsel failed to object to the purported misconduct, "any error resulting from the misconduct [was] deemed waived," and unless Ringle could show that the verdict was "unreliable," he was precluded from arguing that issue on appeal.[22] But we then noted that it was unnecessary for us to review the verdict's reliability because Ringle had not shown misconduct so permeating the record as to support the need for a new trial in the first place.[23] Thus, in Ringle, the application of the plain error test suggested that the complaining party must demonstrate that the misconduct permeated the proceedings before this court will consider the reliability of the verdict. However, the scope, nature, and quantity of misconduct are themselves relevant to whether the verdict is reliable. The Ringle court therefore misapplied the rule that it adopted for plain error, which requires an examination of whether there is no other reasonable explanation for the verdict.

After reviewing our prior jurisprudence, we conclude that Barrett's permeation rule is incomplete and that DeJesus's "inflammatory quality and sheer quantity" test is unworkable. Accordingly, the rule and test in those opinions are overruled. While we approve of Ringle's "plain error" test for unobjected-to misconduct, its application is limited to an examination of whether "no other reasonable explanation for the verdict exists" except for the misconduct. Accordingly, we take this opportunity to revise our attorney misconduct jurisprudence and outline the proper standards for granting or denying a new trial based on attorney misconduct.

Objected-to and admonished misconduct and objected-to and unadmonished misconduct

As Ringle dealt with unobjected-to misconduct, Barrett's rule, that a new trial is proper when attorney misconduct sufficiently permeates the proceedings, still applies to objected-to misconduct. However, Barrett's standard for objected-to misconduct does not sufficiently consider and apply the salutary purposes of objection, and we therefore overrule Barrett. We restate the requirement that in our advocacy system, the parties' attorneys are required to competently and timely state their objections. And in cases in which an objection has been made to attorney misconduct, the district court should not only sustain the objection but admonish the jury and counsel.

In the event of a new trial motion, the better standard for reviewing objected-to and admonished misconduct was a standard presented in DeJesus's dissenting opinion. The DeJesus dissenting opinion precluded any review on appeal for attorney misconduct unless the record showed a timely and proper objection and a request that the jury be admonished.[24] We agree and conclude that for objected-to and admonished misconduct, a party moving for a new trial bears the burden of demonstrating that the misconduct is so extreme that the objection and admonishment could not remove the misconduct's effect. When the district court finds that the objection and admonishment were insufficient to remove the attorney misconduct's effect, a new trial is warranted.

When a party objects to purported attorney misconduct but the district court overrules the objection and the jury is not admonished, the party moving for a new trial based on that purported attorney misconduct must first demonstrate that the district court erred by overruling the party's objection. If the district court concludes that it erred by overruling the objection, the district court must then consider whether an admonition to the jury would likely have affected the verdict in favor of the moving party. In this, the court must evaluate the evidence and the parties' and the attorneys' demeanor to determine whether a party's substantial rights were affected by the court's failure to sustain the objection and admonish the jury.[25]

Repeated or continued objected-to misconduct

As demonstrated in Lang, the proper standard for considering objected-to persistent or repeated attorney misconduct presents a more complex issue. The plaintiffs argue that when the misconduct continues after a sustained objection, the "simple sustained objection does little to erase such improper and emotional arguments and pandering to [the jury's] passion and prejudice, especially when such comments are the last thing a jury hears about a case." The defendants argue that when an argument is objected to and the objection is sustained, any prejudice from the allegedly improper argument is thereby sufficiently cured.

As we stated above, when a party's objection to an improper argument is sustained and the jury is admonished regarding the argument, that party bears the burden of demonstrating that the objection and admonishment could not cure the misconduct's effect. However, when, as in Lang, an attorney must continuously object to repeated or persistent misconduct, the nonoffending attorney is placed in the difficult position of having to make repeated objections before the trier of fact, which might cast a negative impression on the attorney and the party the attorney represents, emphasizing the improper point.[26]

We therefore conclude that when the district court decides a motion for a new trial based on repeated or persistent objected-to misconduct, the district court shall factor into its analysis the notion that, by engaging in continued misconduct, the offending attorney has accepted the risk that the jury will be influenced by his misconduct. Therefore, the district court shall give great weight to the fact that single instances of improper conduct that could have been cured by objection and admonishment might not be curable when that improper conduct is repeated or persistent.

Unobjected-to misconduct

Ringle stated that a party must object to purportedly improper argument to preserve this issue for appeal.[27] We reapprove this requirement, and we note that it is also necessary that a party object in order to preserve this issue in the district court for motions for a new trial. When the party has not objected to the complained-of conduct, the district court should generally deem this issue to be waived.

In cases of plain error, however, we, and the district courts, may still review allegations of unobjected-to attorney misconduct. As we stated in Ringle, plain error requires a party to show "that no other reasonable explanation for the verdict exists."[28] This standard addresses the rare circumstance in which the attorney misconduct offsets the evidence adduced at trial in support of the verdict.

Accordingly, the proper standard for the district courts to use when deciding a motion for a new trial based on unobjected-to attorney misconduct is as follows: (1) the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists. In deciding whether there is plain error, the district court must then determine (2) whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error. In the context of unobjected-to attorney misconduct, irreparable and fundamental error is error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different.[29]

Requirements for the district court

Additionally, we now require that, when deciding a motion for a new trial, the district court must make specific findings, both on the record during oral proceedings and in its order, with regard to its application of the standards described above to the facts of the cases before it. In doing so, the court enables our review of its exercise of discretion in denying or granting a motion for a new trial.

Appellate standards of review of motions for a new trial based on attorney misconduct

On appeal, we review orders denying or granting motions for a new trial for an abuse of discretion.[30] Whether an attorney's comments are misconduct is a question of law, which we review de novo;[31] however, we will give deference to the district court's factual findings and application of the standards to the facts.[32] Our review in the instant appeals involves questions of law and fact; therefore, we review the district courts' decisions regarding whether Emerson's comments were misconduct de novo, and we give deference to the district courts' factual findings and their application of the standards to the facts.

Impropriety of Emerson's arguments

We next address whether Emerson's arguments were improper. The challenged arguments can be classified into three types of alleged misconduct: (1) jury nullification; (2) statements of personal opinion; and (3) golden rule arguments, which occurred only in the Lang case. We describe each type of misconduct below, and we conclude that all of Emerson's challenged closing arguments were improper.

Jury nullification

Jury nullification has been defined as,

[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.[33]

As set forth above, Emerson made arguments that these cases wasted taxpayers' money and jurors' time. Emerson also argued that the cases were examples of people "looking for an excuse to sue someone at the drop of a hat" and that society now believed that "Americans have become a society of blamers." Defendants contend that these arguments are not misconduct and, instead, that the arguments implied that it was

a waste of time and resources to bring cases that do not have an adequate basis in fact and law to prevail. Th[e] comment[s] w[ere] supported by the evidence that showed that [the defendant] was not negligent in this case and was affirmed when the jury reached a defense verdict in this case.

We disagree and conclude that Emerson's arguments amounted to impermissible jury nullification.

Emerson's arguments suggested to the jurors that, regardless of the evidence, if the jury found in the defendants' favors, the jury could remedy the social ills of frivolous lawsuits. Essentially, Emerson asked the jury to "send a message" about frivolous lawsuits. His arguments were directed at causing the jurors to harbor disdain for the civil jury process--a defining, foundational characteristic of our legal system--and at perpetuating a misconception that most personal injury cases are unfounded and brought in bad faith by unscrupulous lawyers. These arguments were irrelevant to the cases at hand and improper in a court of law and constitute a clear attempt at jury nullification.

Personal opinion regarding the justness of the plaintiffs' causes

Under Nevada Rule of Professional Conduct (RPC) 3.4(e), an attorney shall not state to the jury a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a civil litigant.[34] As an example, we have held in criminal cases that prejudicial misconduct occurred when an attorney provided the jury with his personal opinion on an expert witness's credibility and a defendant's character.[35] Although criminal cases involve constitutional issues, requiring heavy scrutinization of improper comments, an attorney's statements of personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a litigant is nonetheless improper in civil cases and may amount to prejudicial misconduct necessitating a new trial.

Plaintiffs contend that Emerson impermissibly injected his personal opinion about the justness of their causes when he said that he had "a real passion for [these] case[s] and cases like [them]," because these were the types of cases that cause people to be distrustful of lawyers and legitimate plaintiffs and lead to what Emerson argued was the public's negative perception of the legal system.

Defendants counter that Emerson's comments were simply "setting the stage" for their request that the jury "let the truth speak through its verdict" and reflect "society's values and beliefs of what justice is or should be." They argue that Emerson was urging the juries to fulfill their responsibility even though the cases were "not high profile." According to defendants, because the cases were not high profile, it would be illogical that Emerson would assert that the cases had an effect on the diminution of the legal profession in the public's eyes; Emerson was merely "trying to remind the jury of their duty to follow the law, ignore what others may think[,] and make a decision based on the evidence that had been presented." Accordingly, defendants assert that Emerson's arguments were appropriate. We disagree.

The comments noted above reflect Emerson's personal opinion about the justness of personal injury litigants' causes and the defendants' culpability. Emerson stated that because of the sheer frivolity of these cases, it was his personal crusade to defend his clients. He also indicated that these types of cases directly contributed to the decline of the public's perception of the legal profession and to the widespread impression that personal injury cases are meritless. By representing to the jury his personal opinion that the plaintiffs' cases were worthless, Emerson not only violated his ethical duties, he also prejudiced the jury against the plaintiffs.[36]

The golden rule argument

An attorney may not make a golden rule argument, which is an argument asking jurors to place themselves in the position of one of the parties.[37] Golden rule arguments are improper because they infect the jury's objectivity.[38]

Only the Langs argued that Emerson made a golden rule argument. In Lang, Emerson asked the jury to consider whether, if the jurors' children were injured at a slumber party, they would merely consider that an accident or see it as an opportunity to sue. Emerson impliedly asked the jurors to consider what remedies the jurors would pursue for the accident and inferred that the jurors would not consider litigation.

Emerson's client in the Lang case, Knippenberg, first argues that the Langs waived their challenge by failing to object to this comment. She also argues that the comment is not a golden rule argument because the comment did not place jurors in either the Langs' or Knippenberg's position. Knippenberg contends that the purpose of the comment was "to provide a hypothetical situation involving an accident that occurred absent any negligence." We disagree.

Regarding the Langs' failure to object, we conclude that, because of the persistent nature of Emerson's misconduct, the Langs' objections to Emerson's other improper arguments sufficiently preserved this issue for appeal. During his closing argument, Emerson plainly stated to the jurors, "You send your son or daughter" to a friend's house, where he or she was injured, and questioned, "[D]oes that mean you just go out and sue[?]" (Emphasis added.) He invited the jurors to make a decision as if they and their children were involved in his hypothetical situation--a situation that somewhat paralleled the scenario of the Langs' daughter's injuries. This question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence that the Langs and Knippenberg presented. Thus, Emerson's comment amounted to an impermissible golden rule argument.

Review of the district courts' orders in the instant cases

As we have concluded that Emerson's arguments are misconduct, we must next decide whether the district courts abused their discretion in deciding the motions for new trial.

In the Castro case, Castro was cited for causing the accident, and he paid the fine without protest. Castro informally stipulated to liability for arbitration, and the arbitrator found against him. However, after a trial de novo, the jury found against the Cabreras and in Castro's favor. The district court, who witnessed the parties' and their attorneys' demeanor and the effect of Emerson's improper closing argument on the jurors, found that a new trial was warranted, even absent objection. In ordering a new trial, the district court specifically referenced Emerson's improper arguments.

Although the district court applied Barrett's "sufficiently permeated the proceedings" standard when granting the new trial, based on the facts of this case and because the district court concluded that Emerson's arguments amounted to repeated misconduct egregious enough to require a new trial, we conclude that the district court did not abuse its discretion in granting the Cabreras' motion for a new trial. We affirm the district court's order.[39]

In the Seasholtz case, Seasholtz admitted liability for the accident and only disputed Wheeler's injuries. Seasholtz's expert agreed that the majority of Wheeler's medical treatment was necessary, and he only disputed her chiropractic treatment. Yet the jury found against Wheeler entirely and denied her any recovery--even for her undisputed medical expenses. In granting Wheeler's motion for a new trial, the district court concluded that notwithstanding Wheeler's failure to object, Emerson's arguments amounted to irreparable and fundamental error.

Again, as with the Castro case, the district court in the Seasholtz matter employed the former standard, commenting that Emerson's "comments were of such sinister influence as to constitute irreparable error." Although an improper standard was used, we give deference to the district court's conclusion that Emerson's comments amounted to irreparable error, and based on the facts, we conclude that the district court did not abuse its discretion by granting Wheeler's motion for a new trial. We therefore affirm the district court's order.[40]

In the Lang case, when denying the Langs' motion for a new trial, the district court relied on Barrett and DeJesus. As we have overruled Barrett and DeJesus did not apply because it addressed unobjected-to misconduct and the Langs objected to Emerson's misconduct, the district court employed incorrect standards when deciding whether the Langs' motion for a new trial should be granted. Therefore, we vacate the district court's order, and we remand the Lang matter to the district court for it to apply the correct standards and to determine whether Emerson's misconduct requires a new trial.

Finally, in the Lioce case, the order denying Lioce's motion for a new trial is summary, only stating that the motion was denied without providing any reasoning. As there is no reasoning for the district court's decision, we are unable to decide whether it abused its discretion in denying Lioce's motion for a new trial. Accordingly, we vacate the district court's order and remand this case for a decision on the motion based on the standards discussed in this opinion.[41]

Deliberate misconduct

In support of their positions on appeal, defendants assert two arguments that warrant further discussion. First, they argue that Emerson's comments did not amount to prejudicial misconduct and new trials are not required because Emerson did not deliberately engage in the misconduct. Second, they argue that the plaintiffs' attorneys also engaged in misconduct during the respective trials, which this court must consider when deciding these appeals. Both of these positions are without merit.

A claim of misconduct cannot be defended with an argument that the misconduct was unintentional. Either deliberate or unintentional misconduct can require that a party receive a new trial. The relevant inquiry is what impact the misconduct had on the trial, not whether the attorney intended the misconduct. Even so, we reject defendants' argument that Emerson's misconduct here was unintentional. In each case, Emerson delivered nearly the same closing argument, just expanding on the argument and adding additional improper material as the cases progressed. Therefore, we are unpersuaded by the assertion that Emerson's continued use and expansion of the improper arguments was not deliberate.

We also reject defendants' proffered justification that we must consider the plaintiffs' attorneys' purported misconduct when addressing Emerson's unethical conduct. Defendants did not object below to the majority of the statements they now argue are misconduct, and we conclude that defendants have not overcome their failure to object by demonstrating irreparable and fundamental error. Nevertheless, the majority of defendants' contentions regarding the plaintiffs' attorneys' purported misconduct are without merit and do not amount to misconduct. And in many instances, defendants' arguments regarding plaintiffs' attorneys' purported misconduct are founded upon misrepresentations of the plaintiffs' attorneys' conduct.

More importantly, a court of law is no place to resort to the argument of "he said it first" or "he did it too." Opposing counsel's violations of professional standards should never be the basis for engaging in professional misconduct. Merely because another lawyer allegedly disregards the ethical rules does not give the opposing lawyer the right to also disregard the rules. Further, asserting that engaging in misconduct is proper because another lawyer is also engaging in misconduct is in and of itself misconduct.

Sanctions

Finally, we conclude that Emerson's misconduct in Castro and Seasholtz warrants monetary sanctions. In those cases, Emerson and his clients shall pay each respective plaintiff's reasonable attorney fees and costs incurred for the first trial and this appeal.[42] We remand Castro and Seasholtz to the district courts to determine this amount by applying the factors in Brunzell v. Golden Gate National Bank[43] and also to determine Emerson's and his clients' deadline for paying this sanction. Finally, in all four cases, we refer Emerson to the State Bar of Nevada for disciplinary proceedings.[44]

CONCLUSION

Today we revise and clarify our attorney misconduct jurisprudence and provide different standards for the district courts depending on whether the purported attorney misconduct was objected to or not. We also impose on the district courts the requirement to make specific findings on the record and in their orders regarding these standards. In the instant cases, we conclude that the district courts did not abuse their discretion in granting the Cabreras' and Wheeler's motions for a new trial, and we affirm the orders in Castro and Seasholtz. In Lang and Lioce, we are unable to evaluate whether the district courts abused their discretion in denying the motions for a new trial, and we vacate those orders and remand those cases to the district courts for new decisions under the standards set forth in this opinion. Finally, we remand Castro and Seasholtz to the district courts to calculate and impose monetary sanctions on Emerson and his clients, and we refer Emerson to the State Bar of Nevada, in all four cases, for disciplinary proceedings.

ROSE, C.J., BECKER, MAUPIN, GIBBONS and DOUGLAS, JJ., concur.

**********FOOTNOTES**********

[1] Payment of a misdemeanor traffic citation is not conclusive evidence of civil liability. See Langon v. Matamoros, 121 Nev. 142, 144-45, 111 P.3d 1077, 1078-79 (2005) (concluding that NRS 41.133, which allows a judgment of conviction to conclusively establish civil liability for a crime, does not apply to misdemeanor traffic offenses).

[2] 111 Nev. 1496, 908 P.2d 689 (1995).

[3] 116 Nev. 812, 7 P.3d 459 (2000).

[4] A physiatrist is "a physician who specializes in physical medicine." Webster's New Collegiate Dictionary 887 (9th ed. 1985). Physical medicine is a branch of medicine that diagnoses and treats disease using physical methods like radiation, heat, and electricity. Id.

[5] Before the accident, Wheeler had been very active in sports and other activities, from which she had previously sustained several injuries.

[6] In the discussion section, we refer to the Cabreras, Lioce, the Langs, and Wheeler collectively as "plaintiffs." We refer to Castro, the Cohens and Wilson, Knippenberg, and Seasholtz collectively as "defendants."

[7] 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995) (quoting Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984)).

[8] 116 Nev. 812, 815-16, 7 P.3d 459, 462 (2000) (plurality opinion).

[9] Id. at 816, 7 P.3d at 462.

[10] Id. at 820, 7 P.3d at 464.

[11] Id. at 816, 7 P.3d at 462.

[12] Id. at 826, 7 P.3d at 468-69 (Rose, C.J., dissenting).

[13] 394 P.2d 561 (Cal. 1964).

[14] DeJesus, 116 Nev. at 826, 7 P.3d at 468-69 (Rose, C.J., dissenting) (quoting Horn, 394 P.2d at 565).

[15] Id. at 827, 7 P.3d at 469.

[16] 120 Nev. 82, 95-96, 86 P.3d 1032, 1040 (2004).

[17] Id. at 94-95, 86 P.3d at 1040.

[18] Id. at 95, 86 P.3d at 1040.

[19] Id.

[20] Id. at 96, 86 P.3d at 1041 (quoting Budget Rent A Car Systems, Inc. v. Jana, 600 So. 2d 466, 467 (Fla. Dist. Ct. App. 1992)).

[21] Id.

[22] Ringle, 120 Nev. at 96, 86 P.3d at 1040.

[23] Id. at 96, 86 P.3d at 1041.

[24] DeJesus v. Flick, 116 Nev. 812, 826, 7 P.3d 459, 468-69 (2000) (Rose, C.J., dissenting).

[25] NRCP 59(a)(2) (providing that a new trial may be granted when a party's substantial rights have been affected by misconduct).

[26] Leathers v. General Motors Corp., 546 F.2d 1083, 1086 (4th Cir. 1976).

[27] Ringle, 120 Nev. at 95, 86 P.3d at 1040.

[28] Id. at 96, 86 P.3d at 1041.

[29] See id. at 95, 86 P.3d at 1040 ("Irreparable and fundamental error . . . is only present when it is plain and clear that no other reasonable explanation for the verdict exists."); Parodi v. Washoe Medical Ctr., 111 Nev. 365, 368, 892 P.2d 588, 590 (1995) ("plain error is error which . . . 'had a prejudicial impact on the verdict when viewed in context of the trial as a whole'" (quoting Libby v. State, 109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993))).

[30] Langon v. Matamoros, 121 Nev. 142, 143, 111 P.3d 1077, 1078 (2005).

[31] See Bronneke v. Rutherford, 120 Nev. 230, 232, 89 P.3d 40, 42 (2004) (applying de novo review in an appeal involving a motion for a new trial because the appeal primarily concerned a legal issue).

[32] See D.R. Horton, Inc. v. Green, 120 Nev. 549, 553, 96 P.3d 1159, 1162 (2004) (applying de novo review to legal issues and leaving the factual application of the issue to the district court's discretion).

[33] Black's Law Dictionary 875 (8th ed. 2004).

[34] At the time of trial, this ethical duty was set forth in SCR 173(5).

[35] Yates v. State, 103 Nev. 200, 204, 734 P.2d 1252, 1255 (1987) (holding that reversible misconduct occurred when an attorney called the expert witness's testimony "'m[a]larkey'" and "'outright fraud'"); Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 234 (1986) (holding similarly when an attorney called an expert witness a "'hired gun from Hot Tub Country'").

[36] The third comment also amounts to jury nullification because it asserted that the jury should accept an attorney's personal opinion on a public policy debate as a substitute for the evidence and law that should decide the case.

[37] Boyd v. Pernicano, 79 Nev. 356, 358-59, 385 P.2d 342, 343 (1963).

[38] Id. at 358, 385 P.2d at 343.

[39] We will affirm the district court's order when it reaches the right decision, even if for the wrong reason. Albios v. Horizon Communities, Inc., 122 Nev. ___, ___ n.40, 132 P.3d 1022, 1033 n.40 (2006).

[40] Id.

[41] Lioce argues that, should we decide a new trial is warranted, his case must be remanded to a different district court judge because Judge Bell was biased toward him. We conclude that this argument is without merit, and we also direct Lioce to NRS 1.235(1), which states that a party desiring to disqualify a judge in district court "must file an affidavit specifying the facts upon which the disqualification is sought." See also Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005).

[42] See Greene v. State, 113 Nev. 157, 170, 931 P.2d 54, 62 (1997) (issuing monetary sanctions, on appeal, against trial counsel for an improper opening statement and the failure to observe the district court's admonitions); McGuire v. State, 100 Nev. 153, 159-60, 677 P.2d 1060, 1065 (1984) (issuing monetary sanctions, on appeal, against trial counsel for attorney misconduct during trial); see also Randolph v. State, 117 Nev. 970, 982 n.16, 36 P.3d 424, 432 n.16 (2001) (ordering trial counsel to show cause why we should not sanction him, on appeal, for misconduct during trial); Williams v. State, 103 Nev. 106, 112 n.6, 734 P.2d 700, 704 n.6 (1987) (stating that we will impose sanctions on attorneys who "cannot conform to the proper norms of professional behavior, whether inside or outside the courtroom").

[43] 85 Nev. 345, 349-50, 455 P.2d 31, 33 (1969).

[44] We have carefully considered the parties' other arguments and conclude that they are without merit.

*****************************

PARRAGUIRRE, J., concurring in part and dissenting in part:

I concur with the majority's analysis and conclusions relating to attorney misconduct jurisprudence. I disagree, however, with the scope of sanctions imposed in the Castro and Seasholtz cases.

The district court judges have the benefit of evaluating all conduct during the course of trial, and are in a superior position to determine and impose appropriate sanctions for attorney misconduct. It does not appear from the record that the district court chose to impose sanctions in either case. In fact, it is not clear that sanctions were even requested. Before imposing sanctions of the nature ordered by the majority, I would prefer to have additional information. I, therefore, would order trial counsel to show cause why sanctions should not be imposed.

This blog we examine the definitions within the definition.

For instance, under Nevada law, the term "client" is defined as follows:

49.045. "Client" defined

"Client" means a person, including a public officer,
corporation, association or other organization or entity, either public
or private, who is rendered professional legal services by a lawyer,
or who consults a lawyer with a view to obtaining professional legal
services from him.

Interestingly, there is always an argument that you become a "client" of an attorney, at least for the purpose of obtaining privilege, as soon as you talk to an attorney about your case and regardless of whether you retain him or pay him.

Let's look at a few other definitions:

49.055. "Confidential" defined

A communication is "confidential" if it is not intended to
be disclosed to third persons other than those to whom disclosure
is in furtherance of the rendition of professional legal services to
the client or those reasonably necessary for the transmission of the
communication.

49.065. "Lawyer" defined

"Lawyer" means a person authorized, or reasonably believed
by the client to be authorized, to practice law in any state or nation.

*Note here that the lawyer may not even be licensed to practice in Nevada, but if you think he is, privilege may apply.

49.075. "Representative of the client" defined

"Representative of the client" means a person having
authority to obtain professional legal services, or to act on advice
rendered pursuant thereto, on behalf of the client.

49.085. "Representative of the lawyer" defined

"Representative of the lawyer" means a person employed by
the lawyer to assist in the rendition of professional legal services.

Next blog I'll set out the legal list of who may claim this privilege and what exceptions exist.

The general scope of this privilege is set out in NRS 49.095 and provides:

49.095. General rule of privilege

A client has a privilege to refuse to disclose, and to prevent
any other person from disclosing, confidential communications:

1. Between himself or his representative and his lawyer or

his lawyer's representative.

2. Between his lawyer and the lawyer's representative.

3. Made for the purpose of facilitating the rendition of
professional legal services to the client, by him or his lawyer to a
lawyer representing another in a matter of common interest.

Lawyers are fond of defining things and the Nevada statutes contain numerous definitions and qualifications that effect this privilege. More on those next blog.

NRS 49.015 provides, generally:

49.015. Privileges recognized only as provided

1. Except as otherwise required by the Constitution of the
United States or of the State of Nevada, and except as provided in
this Title or Title 14 of NRS, no person has a privilege to:

(a) Refuse to be a witness;

(b) Refuse to disclose any matter;

(c) Refuse to produce any object or writing; or

(d) Prevent another from being a witness or disclosing any
matter or producing any object or writing.

2. This section does not:

(a) Impair any privilege created by Title 14 of NRS or by
the Nevada Rules of Civil Procedure which is limited to a particular
stage of the proceeding; or

(b) Extend any such privilege to any other stage of a
proceeding.

In general, then, a privilege exists when provided for by law. Next blog we'll begin to look at the most common privileges.

But of course people do read blogs because blogs deliver targeted information. This blog, for instance, is intended for the sole purpose of helping the public find answers to commonly asked questions about Nevada law. My goal has always been simple: deliver more substantive information on Nevada law than any other lawyer on any other site.

I'll continue to do that, and I'll continue to poach from my four Nevada legal guides (recently published and selling well - check our site at www.NevadaLegalGuides.com).

Legal professionals who use my guides now pay between $40 and $50 a book. But if you tune into my site, you will see many excerpts from my books (which took four years to compile) provided free of charge.

So keep tuning in and I'll keep providing more information on Nevada injury law than you'll find anywhere else.

And if you've seen this blog column, and have unanswered questions, simply drop me an email and I'll do my best to answer your question as quickly as possible.

Starting tomorrow I'll begin an extensive look at Nevada evidence law. See you there.

Set forth below are case citations and holdings that deal with damage issues in such cases.

The statutes of repose bar only those actions arising out of design and construction-related negligence, but not negligent maintenance. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).

Under NRS 41.141, a plaintiff who is fifty percent at fault is not barred from recovery, but his damages are reduced by his own percentage of negligence. NRS 41.141(1); State Farm Auto Ins. Co. v. Commissioner of Insurance, 114 Nev. 535, 958 P.2d 733 (1998).

In Nevada, an abutting property owner or occupant does not have a duty to keep a sidewalk in front of his/her property in a reasonable safe condition, and liability will not lie unless owner created defect in manner independent of and apart from ordinary and accustomed use for which sidewalks are designated. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).

Recovery is barred when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but because the defendant is not negligent at all. The defendant has no duty to warn against an obvious danger and cannot, therefore, be negligent in failing to give such a warning. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).

The obvious danger rule survives the adoption of comparative negligence statutes. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).

The obvious danger rule does not apply to situations where liability is predicated upon acts other than a failure to provide adequate warning of a dangerous condition. Thus, even where the danger is obvious, a defendant may be negligent in having created the peril or in subjecting the plaintiff to peril. Harrington v. Syufy Enterprises., 113 Nev. 246, 931 P.2d 178 (1997).

Where an unforeseeable supervening cause intervenes between defendant's negligence and plaintiff's injury, defendant is relieved of liability. Dakis v. Scheffer, 111 Nev. 817, 898 P.2d 116 (1995); El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 691 P.2d 436 (1984).

Express assumption of risk is essentially a contract where the plaintiff signs a document and openly agrees to hold the defendant harmless for known and inherent dangers of a particular activity. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994).

With the single exception of an express assumption of risk, the assumption of risk doctrine has been subsumed by our comparative negligence statute and is no longer a bar to recovery for negligence. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994); Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).

Where a foreign substance causing a patron to slip and fall results from actions of persons other than the business or its employees, the business is liable only if it had actual or constructive notice of the condition and failed to remedy it. Chastain v. Clark County School Dist., 109 Nev. 1172, 866 P.2d 286 (1993); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320 (1993).

The contributing fault on the plaintiff's part could reduce the plaintiff's recovery under the doctrine of comparative negligence, but it does not negate a finding that the defendants' negligence was the proximate cause of the plaintiff's injuries. Joynt v. California Hotel & Casino, 108 Nev. 539, 835 P.2d 799 (1992); Taylor v. Silva, 96 Nev. 738, 615 P.2d 970 (1980).

NRS 41.500, the Good Samaritan statute, provides that any person who renders emergency aid, gratuitously and in good faith, is not liable for acts of ordinary negligence. The phrase "gratuitously and in good faith," limits the protection of this statute to those situations in which the rescuer was not already under a duty to act. NRS 41.500; Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).

Critical ingredients of "emergency" situation within meaning of Good Samaritan statute are as follows: suddenness, unexpected necessity for immediate action, lack of time for measured evaluation of alternative courses of action, and respective efficacy and priority of alternatives. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).

The vitality of express assumption stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk. Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).

To relieve a defendant from liability under an "act of God" theory, the act must be such a providential occurrence or extraordinary manifestation of the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided by reasonable care or by the use of those means which the situation renders reasonable to employ. Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).

Set forth below are case citations and holdings that deal with damage issues in such cases.

Relief in contribution and implied indemnity is unavailable to the extent those claims arise from the intentional or punitive liability of the party seeking such relief. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Whether Beckwith thought Reccelle was God or his evil master is of no matter because he admittedly struck Reccelle in the eye with the desire of getting away from him. This is a non-accidental intentional act even if Beckwith did not intend to harm Reccelle. Thus, we conclude that Beckwith's act of striking Reccelle is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. Beckwith v. State Farm Fire and Cas. Co., 120 Nev. 23, 83 P.3d 275 (2004).

A government entity is afforded immunity for pre-emergency negligence when the damage caused by the negligent emergency management was exacerbated by the pre-emergency negligence. A government entity, however, is not immune from liability for its pre-emergency negligence that is not intertwined with damage caused by later negligent emergency management activities. Vermef v. City of Boulder City,119 Nev. 549, 80 P.3d 445 (2003).

An employer was not vicariously liable for its employee's negligence when the employee commuted from his home to a jobsite in his private vehicle. Kornton v. Conrad, Inc., 119 Nev. 123, 67 P.3d 316 (2003).

State employees engaged in child protective services are entitled to quasi-judicial immunity when they provide information to the court (e.g., reports, case plans, testing evaluations and recommendations) pertaining to a child who is or may become a ward of the State. When a state agency or its employees provide their decision-making expertise to the court, they act as an arm of the court and are entitled to absolute quasi-judicial immunity. However, once the court makes a decision ratifying the recommendations of the state agency (e.g., placement in foster care, need for further medical evaluation, etc.), the state agency and its employees are no longer acting as an arm of the court. Rather, their function in carrying out the order of the court falls within the executive branch of government and pursuant to their statutory duties. Specifically, quasi-judicial immunity does not apply to state agencies or their employees for the day-to-day management and care of their wards. State v. Second Judicial Dist. Court ex rel. County of Washoe, 118 Nev. 609, 55 P.3d 420 (2002).

The Court declined to recognize an independent tort for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third party. Additionally, the Court concluded that a negligence claim for spoliation does not exist under the circumstances presented in this case. Timber Tech Engineered Bldg. Products v. The Home Ins. Co., 118 Nev. 630, 55 P.3d 952 (2002).

An employer may be liable for punitive damages for acts or omissions of its agents if, but only if, (a) principal or managerial agent authorized doing and manner of act; (b) agent was unfit and principal or managerial agent was reckless in employment or retaining him, (c) agent was employed in managerial capacity and was acting in scope of his employment, or (4) principal or managerial agent of principal ratified or approved act. Smith's Food & Drug Centers, Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208 (1998).

Absent injury to person or property, a plaintiff may not recover in negligence for economic loss. Arco Products Co. v. May, 113 Nev. 1295, 948 P.2d 263 (1997); Local Joint Executive Board v. Stern, 98 Nev. 409, 651 P.2d 637 (1982).

Emotional distress can be an element of damage recovered by a direct victim in a negligence cause of action. Shoen v. America, Inc., 111 Nev. 735, 896 P.2d 469 (1995).

When a party negligently damages the property of another, the damage award should be designed to compensate the injured party in full measure for the total harm proximately caused by the defendant's breach of duty. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 866 P.2d 1138 (1994).

Economic loss is something other than property damage. Economic losses include lost profits, lost productivity, lost wages, business expectations and other losses that flow from the loss of the things damaged by the defective product. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Pratt and Whitney Canada, Inc., 107 Nev. 535, 815 P.2d 601 (1991).

As always when I list holdings from multiple cases, selections are listed in chronological order starting with more recent cases:

To satisfy actual causation element in a negligence action, plaintiff must show that but for defendant's negligence, plaintiff's injuries would not have occurred. The legal causation requirement means that defendant must be able to foresee that his negligent actions may result in harm of particular variety to certain type of plaintiff. Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).

In determining foreseeability, a defendant need not foresee the extent of the harm, or the manner in which it occurred. He need only foresee that his negligent conduct could have caused a particular variety of harm to a certain type of plaintiff. Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).

Duty to act affirmatively to aid others in peril is generally imposed where special relationship exists between parties, such as innkeeper-guest, teacher-pupil, or employer-employee. Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).

NRS 48.095 excludes evidence of subsequent remedial measures to prove negligence or culpable conduct, unless such evidence is offered to prove another purpose such as feasibility of precautionary measures. Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991); Jacobson v. Manfredi by Manfredi, 100 Nev. 226, 679 P.2d 251 (1984).

A res ipsa inference of negligence is permitted when: 1) Plaintiff has shown that defendant was in exclusive control of the instrumentality causing harm; 2) The accident was one that does not ordinarily occur in the absence of negligence; and, 3) Defendant is in a better position to explain the cause of the accident. Landmark Hotel & Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 757 P.2d 361 (1988); Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985).

Res ipsa loquitur is balancing doctrine, and while plaintiff need not show exact cause of injury, he must at least show that it is more probable than not that the injury resulted from the defendant's breach of duty. If that is shown, an inference of negligence on the part of the defendant arises and it is then incumbent on the defendant to come forward with rebuttal evidence. Otis Elevator Company v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985); American Elevator Company, v. Briscoe, 93 Nev. 665, 572 P.2d 534 (1977).

For an act to be the "proximate cause" of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981).

The policy rationale for the doctrine of respondeat superior is grounded on the theory of control rather than on an entrepreneur theory; once a master-servant relationship is established, the principal inquiry is whether the tortious conduct occurred within scope of employment. Natl. Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689 (1978).

The improvement of safety devices is not indicative of negligence but merely of a desire to prevent future injury to person or property. Bomar v. United Resort Hotels, Inc., 88 Nev. 344, 497 P.2d 898 (1972); Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).

This blog I will concentrate on those cases that discuss proving negligence claims in Nevada and next blog I will finish this discussion of proof.

The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving negligence:

In determining whether an agent acts in a managerial capacity, the key is to look to what the individual is authorized to do by the principal and to whether the agent has discretion as to what is done and how it is done. Job titles should be of little importance. Smith's Food & Drug Centers, Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208 (1998); Cerminara v. California Hotel and Casino, 104 Nev. 372, 760 P.2d 108 (1988).

Evidence of subsequent, similar accidents involving the same condition may be relevant to issues of causation and whether there is a defective or dangerous condition. Reingold v. Wet 'N Wild, 113 Nev. 967, 944 P.2d 800 (1997).

Nevada is a notice pleading jurisdiction. This means that civil complaints in Nevada can be pleaded rather loosely as long as they ensure that an opposing party is put on notice of the legal theories upon which a party is proceeding.

The Nevada Supreme Court has long held that pleadings will be liberally construed to place matters into issue which are fairly noticed to the adverse party. Pittman v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994).

The test for whether allegations in a complaint are sufficient to assert a claim for relief is whether the allegations give fair notice of the nature and the basis of a legally sufficient claim and the corresponding relief requested. Vacation Village v. Hitachi America, 110 Nev. 481, 874 P.2d 744 (1994). While the rules for pleading in Nevada are liberal, it is nevertheless essential to thoroughly understand the elements of recognized legal theories, preferably early in a case, since such elements constitute a framework for discovery, a blueprint for proof at trial, and an aid in the formulation of jury instructions.

Such elements also ensure that a complaint is properly drafted and answered.

And so, without further ado, I'll start my next blog with the elements of negligence claims in Nevada with special attention to fact scenarios that the Nevada Supreme Court has discussed in this context.

1. Defendant owed a duty of care to plaintiff;

2. Defendant breached that duty;

3. The breach was the legal cause of plaintiff's injuries; and,

4. Plaintiff suffered damages.

Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996).

The Nevada Supreme Court has dealt with and discussed many fact situations in which negligence was at issue. Here are selections from some of those cases:

Tangible, physical injury must occur during policy period for coverage to be triggered, and insured's allegedly negligent welding of support structure for sign and modifications of bolts were not "property damage" during policy period. United National Ins. Co. v. Frontier Ins. Co., Inc., 99 P.3d 1153 (2004).

A joint tortfeasor seeking to perfect a contribution claim in the context of a settlement must first extinguish the liabilities of the other joint tortfeasors against whom contribution recovery is sought. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

A tortfeasor seeking to perfect an implied indemnity claim in the context of a settlement is not required to extinguish the liabilities of joint tortfeasors against whom indemnity recovery is sought. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Any joint tortfeasor in a multi-defendant tort action may obtain protection from claims of contribution and implied indemnity by settling with the tort claimant in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

The district court's discretion in determining the good or bad faith of a particular settlement is not talismanic, but rather, must be exercised based upon a myriad of considerations. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

The remedies of contribution and implied, i.e., noncontractual indemnity allow parties extinguishing tort liabilities by way of settlement or payment of judgments to seek recovery from other potential tortfeasors under equitable principles. Contribution is a creature of statute, while implied indemnity is generally a creation of the common law. Under the Nevada statutory formulation, the remedy of contribution allows one tortfeasor to extinguish joint liabilities through payment to the injured party, and then seek partial reimbursement from a joint tortfeasor for sums paid in excess of the settling or discharging tortfeasor's equitable share of the common liability. Generally stated, implied indemnity allows a complete shifting of responsibility to an "indemnity obligor" when the party seeking indemnity has extinguished its liabilities incurred as a result of the indemnity obligor's active fault.The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Under NRS 17.265, the provisions of the contribution statutory scheme do not impair rights of indemnity and, more particularly, where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

A tortfeasor seeking to perfect a contribution claim through a prejudgment settlement process must pay an amount in excess of his equitable share of liability and must explicitly extinguish the liability of the joint tortfeasor from whom contribution is sought as part of the settlement. The substantive right to contribution is governed by a factual determination as to whether the payment has exceeded the settling party's equitable share of the common liability. A party seeking to perfect contribution as part of a settlement is not required to obtain a formal ruling that his settlement is in good faith. However, a tortfeasor seeking protection against claims of contribution by nonsettling tortfeasors should obtain a formal ruling that its settlement is made in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

A tortfeasor seeking to perfect an implied indemnity claim via settlement is not required to extinguish the liability of the indemnity defendant. This having been said, failure to extinguish the liability of the indemnity defendant leaves the claim in some jeopardy, given the possibility that the district court, as in this case, could approve a separate subsequent settlement between the claimant and the potential indemnity defendant. Accordingly, a settlement that extinguishes the liability of the indemnity plaintiff and the indemnity defendant preempts the statutory protection provided under NRS 17.245 for an indemnity defendant who attempts to settle with the underlying plaintiff at a later time. A tortfeasor seeking to perfect an implied indemnity claim as part of a settlement is not required to obtain a formal ruling that the settlement is in good faith unless he wishes protection from implied indemnity claims against him. And a tortfeasor seeking a unilateral settlement and protection against claims of implied indemnity by nonsettling tortfeasors should obtain a formal ruling that its settlement is made in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Good-faith determinations are governed by a myriad of considerations, including the liability permutations arising from the merits of the contribution and indemnity claims. A settling defendant seeking protection from contribution and implied indemnity claims has the burden of proving that the settlement was in good faith. Relief in contribution and implied indemnity is unavailable to the extent those claims arise from the intentional or punitive liability of the party seeking such relief.The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Statute requiring claims against dissolved corporations to be filed within two years after dissolution did not apply to claims arising after the dissolution, and homeowners' claims did not arise until the alleged defects were, or should have been, discovered. Beazer Homes Nevada, Inc. v. Eighth Judicial Dist. Court ex rel. County of Clark, 97 P.3d 1132 (2004).

Arbitrator did not manifestly disregard the law by failing to apply spoliation presumption in favor of motorcyclist when truck owner and truck driver lost or destroyed accident-scene photographs. Bohlmann v. Byron John Printz and Ash, Inc., 120 Nev. 543, 96 P.3d 1155 (2004).

Under the specific terms of this policy, an insured's alleged negligent supervision of an adult son who commits statutory sexual seduction is not a covered occurrence, and the intentional-acts and child-molestation exclusionary language is not ambiguous. Fire Ins. Exchange v. Cornell, 120, Nev. 303, 90 P.3d 978 (2004)

A negligence claim can be alleged in a construction defects cause of action initiated under Chapter 40. Olson v. Richard, 120 Nev. 240, 89 P.3d 31 (2004).

An apartment owner was negligent in failing to warn a resident about a drop-off between the landscaping and the parking areas. The statutes of repose do not obviate the duty of owners and occupiers to maintain their property free of hazards. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).

A restaurant owed a duty towards an intoxicated invitee to act reasonably, but the restaurant had no duty to administer the Heimlich maneuver to invitee. Lee v. GNLV Corp., 22 P.3d 209, 212, 117 Nev. 291 (2001).

Hotel did not have duty to pedestrian who slipped and fell on icy sidewalk to keep sidewalk in reasonably safe condition, as there was no special use of sidewalk by hotel that created hazard beyond normal atmospheric conditions; there was no evidence that use of sidewalk by hotel or its customers caused dangerous condition, that hotel did anything itself to increase pedestrian's risk of harm, or that condition that caused fall was consequence of unnatural accumulation of ice or snow caused by traffic pattern of other guests between hotel and curb. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).

In the situation where a property owner hires security personnel to protect his premises and patrons, that property owner has a personal and nondelegable duty to provide responsible security personnel. Therefore, for purposes of respondeat superiority liability, security personnel are the employees of the property owner as a matter of law, even if the property owner engaged a third party to hire the security personnel. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996).

NRS 651.010, which limits liability of innkeepers for damage to their guests' personal property, does not extend to the valet parking area of the innkeeper. NRS 651.010; Tienda v. Holiday Casino, Inc., 109 Nev. 507, 853 P.2d 106 (1993).

The Good Samaritan statute does not cover emergency situations involving uninjured, healthy persons. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).

In view of the comparative negligence statute, a social "drinking club" and its members could be liable for the death of an initiate during his initiation to the club even though the doctrine of "last clear chance" was rendered inappropriate by such statute. Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979). 

I have always felt that the highest purpose of legal blogs is to educate legal consumers. Therefore, I plan to utilize materials from my books in my blogs starting today with extended and in-depth information on the law of negligence in Nevada extracted from the Second Edition of my first legal book (originally published in 1999 and completely updated in 2006), Elements of Nevada Legal Theories.

I believe that this sort of in-depth tailored legal research is not available anywhere else on the Internet. Please do not hesitate to let me know if you find this type of information useful. 

The Nevada Supreme Court clarifed this issue in General Motors Corp. v. Dist. Ct. 122 Nev. Adv. Op. No. 41(2006), a decision published a few weeks ago.

The Court overturned previous law and applied the Second Restatement of Conflict of Laws, section 145.

The Court stated that the Second Restatement's most significant relationship test begins with a general principle

that: the rights and liabilities of parties with respect to an issue in tort are governed by the local law of the state that, "with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in section 6." Section 6 identifies the following principles:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

These principles are not intended to be exclusive and no one principle is weighed more heavily than another.]

Upon this basis, the Court held that in a scenario such as that presented above, Nevada law would apply against the manufacturer and Arizona law would apply against the seller.

There, the Court clarifies the common-law grounds available for a court to review a private arbitration award. The Court had previously recognized that a private arbitration award may be reviewed under two common-law grounds: (1) the award is arbitrary, capricious, or unsupported by the arbitration agreement; or (2) the arbitrator manifestly disregarded the law. Under the first ground, the Court clarifies that the reviewing court may only concern itself with the arbitrator's findings and whether they are supported by substantial evidence or whether the subject matter of the arbitration is within the arbitration agreement. Under the second ground, the Court concludes that the reviewing court may only concern itself with whether the arbitrator knew of the law and, if so, consciously disregarded it, not whether the private arbitrator's interpretation of the law was correct.

Binding arbitration is not always the final step that many think it is.

There are special laws that govern lawsuits against Nevada and its political subdivisions. These laws, and the Nevada Supreme Court cases that have interpreted these laws, eliminate an injured party's ability to sue in certain cases and limit potential damage awards in those cases in which lawsuits are allowed.

Nevada law provides that parties that prevail against the state or one of its subdivisions may recover a maximum of $50,000.00 per claim. This law is complex, however, and many exceptions exist and continue to develop.

If you have an injury claim against Nevada or one of its poltical subdivisions, you should consult an attorney to evaluate how Nevada's immunity caps apply to your situation.

Nevada law addresses this in two statutes:

First, NRS 41.470 provides:

1. Except as otherwise provided in NRS 424.085, any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.

2. The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.

3. The liability imposed by this section is in addition to any other liability imposed by law.

Next, NRS 41.472 adds:

1. If a parent, guardian or other person legally responsible for a minor under the age of 18 years:

(a) Knows that the minor has previously been adjudicated delinquent or has been convicted of a criminal offense;

(b) Knows that the minor has a propensity to commit violent acts; or

(c) Knows or has reason to know that the minor intends to use the firearm for unlawful purposes,

and permits the minor to use or possess a firearm, any negligence or willful misconduct of the minor in connection with such use or possession is imputed to the person who permits such use or possession for all purposes of civil damages, and, notwithstanding the provisions of subsection 2 of NRS 41.470, that person is jointly and severally liable with the minor for any and all damages caused by such negligence or willful misconduct.

2. As used in this section, "firearm" has the meaning ascribed to it in NRS 202.253.

-A presiding judge is appointed and hears all motions.

-The parties exchange document and witness lists and meet for a pretrial conference to chart out the course of the case.

-The case is calendared and set for trial to commence not later than 120 days from the date the judge was assigned.

-Parties may quote from depositions rather than call witnesses, and other evidentiary rules are relaxed.

-Expert witnesses may be used but the use of live expert testimony is discouraged.

-A jury of 4 to 6 members is chosen.

-A judgment may not exceed $40,000.00 per plaintiff.

-Diehard parties may appeal a case within the Short Trial Program directly to the Nevada Supreme Court.

I'll discuss incentives and financial risks built into Nevada's ADR system in my next blog or two. 

In Washoe County, Nevada, there are two basic choices in cases of this nature.

First, parties can proceed through arbitration. In this form of alternative dispute resolution, the parties each strike two names from a list of five arbitrators and an arbitrator is chosen and sets the basic rules for discovery and an arbitration hearing. Evidentiary rules are often highly relaxed and most arbitrations take less than half a day. Also, arbitration hearings occur faster than trials, with most completed within six to eight months of filing a complaint.

The parties present their cases at the arbitration hearing and the arbitrator hears evidence and makes an award to the prevailing party.

Parties may also opt intially to proceed through a structured mediation program. Mediation, unlike arbitration, is a process in which a decision is not made by a third party. Rather, an appointed mediator works with the parties (who are usually in separate rooms) and attempts to bring them together to a mutually acceptable (or mutually unacceptable) resolution.

If a party is dissatisfied with an arbitration result, or if mediation fails to bring the parties together, litigants can opt to then proceed into Nevada's Short Trial program. More on this next blog.

While numerous claims against an insurance company are possible in any given case, Nevada's "bad faith" claim (which is actually called a "breach of the implied covenant of good faith and fair dealing" claim) requires proof of the following elements:

-Plaintiff and defendant entered into a contract;
-Defendant owed a duy of good faith to plaintiff arising from the contract;
-There was a special element of reliance or a fiduciary duty between plaintiff and defendant where defendant was in a superior or entrusted position;
-Defendant breached his duty by engaging in misconduct; and,
-Plaintiff suffered damages as a result of the breach.

An insurance company acts in bad faith when it wrongfully denies coverage to an insured. An insurance policy is considered a contract between you and your insurance carrier. This contract requires that your insurer act in "good faith" toward you.

Insurers frequently attempt to deny claims for any reason they can. Also, even when an insurer acknowledges that a claim or lawsuit is covered by the insurance policy, it often attempts to underpay a claim. To prove bad faith, the insured needs to show that the insurer failed to honor the contract and had no cause not to pay what was due.

Insurers have a duty to deal fairly with insureds. Every insurance contract contains an unwritten covenant or promise of good faith imposed by law upon an insurer to always act fairly toward its insureds in handling their claims.

There are many examples of how an insurer can commit bad faith. These include: failing to promptly and thoroughly investigate a claim; unreasonably delaying payment; unreasonably denying benefits; using unreasonable interpretations in translating policy language; refusing to settle a claim or reimburse you for the entirety of your loss, etc.

Insureds should immediately notify their agents of claims and review their insurance policy as it relates to the claim. Document all events, notes and all contacts and communications made, whether written or verbal, with the insurer. Keep track of the dates and times of communications and the identities of those with whom you spoke.

If you feel like your insurance company has treated you unfairly, please feel free to call or email me and I'll be happy to discuss your case.

Nevada has always been an employer-oriented state in the view of the Nevada Supreme Court. This held true once again in a noteworthy case that arose from a disgruntled professor's denial of tenure.

There, the Court held that tenure is a multidimensional, subjective, decision-making process where numerous traits and work habits of a professor are considered. The Court went on to say that the University of Nevada, Reno's denial of tenure was discretionary under the contract and not a breach of contract. Faculty appointment at the university level, said the Court, is an area poorly suited for judicial supervision, and thus one where judicial restraint must be exercised. This judicial reluctance to intrude upon university decisions is imbedded in the deeply rooted principles of academic freedom. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. University of Nevada, Reno v. Stacey, 116 Nev. 428, 997 P.2d 812 (2000).

This case makes clear that professors need to think twice before challenging tenure decisions in Nevada. 

Doctor's depositions are different, though. Unless a doctor is a defendant in a malpractice action, most doctor depositions take place at the doctor's office. And most doctor's offices aren't particularly big or particularly nice.

I found myself in one such deposition a few days ago. My client (the plaintiff) was present, the defense attorney was there, a court reporter was there, the treating doctor was there. I had a huge notebook with over 1000 pages of medical records, my client, a senior citizen, had her walker, the court reporter had her notebook computer, her stengraphy machine and the rest of her court reporter parapheralia, and there we were, all crammed into some wealthy doctor's hot, messy, crowded space.

And then something mystical occured: the doctor realized that we couldn't all fit and moved the entire show up to his medical group's lavish board room. We all spread out, leaned back, pivoted around in plush leather chairs and the depositon proceeded to conclusion in the inner sanctum.

The surprises, however, weren't finished, because when the deposition ended, and I thanked the doctor (diplomatically) for moving us out of his tiny space, he confessed to me why we were ever crammed together in the first place.

"Doctors," he said, "don't like depositions and they don't want to spend their time with lawyers. The more uncomfortable a lawyer is, the sooner a deposition is likely to end. And that's why we hold depositions in our offices."

As I walked out I wondered why I hadn't realized this perfectly logical fact years ago.

Relatively recent changes to Nevada's medical malpractice statutes now require that all medical malpractice cases filed in Nevada's courts contain an expert affidavit.

Nevada statute NRS 41A.071 provides:

Dismissal of action filed without affidavit of medical expert supporting allegations. If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a 
medical expert who practices or has practiced in an area that is substantially similar to the type of practice

What this means, in effect, is that victims of malpractice must find an expert witness before a case is first filed. The defense, by contrast, is not required to submit an affidavit with their answer.

Nevada medical malpractice plaintiffs are at a significant disadvantage from the start of a case: first, because our new one-year statute of limitations (thanks to the insurance and medical industry lobbies) makes it extremely difficult to gather records and gain a review in this length of time; and second, because plaintiffs divulge a great deal about their case from the start while defendants can wait until close to trial to reveal their expert theories.

Generally speaking, there are two phases to most cases: 1) the settlement phase, and 2) the litigation phase.

The litigation phase of a case can be divided into three distinct stages: 1) the complaint and answer stage, 2) the discovery stage, and 3) the trial stage.

This is the second of a series of articles that pertains to the stages of litigation in Nevada district courts cases. This article will focus on the discovery stage.

Discovery Stage

"Discovery" is the broad term used to characterize the various tools a lawyer can employ to gain information that may be valuable to the prosecution or the defense of a case.

In most cases, the parties must meet for the purpose of an early case conference within a certain period of time after an answer is filed. The parties must exchange, at this conference, lists of potential witnesses and lists of documents with copies of those documents. Often, a trial or arbitration date is established at the early case conference. Injured litigants should note that a hearing date is important to the progress of a case. Defense lawyers often wait until a case is close to arbitration or trial to make meaningful settlement offers.

After an early case conference other types of discovery are possible. These include:

- Depositions, at which witnesses are sworn and their testimony is recorded. 
- Interrogatories, or written questions to the other side. 
- Requests for production of documents to a party. 
- Requests for party admissions. 
- Requests to inspect or to test. 
- Records subpeonas, to obtain records from nonparties.

Although most lawyers do not copy their clients with all of the discovery obtained in course of a case, clients should feel free to sit down and discuss the progress of discovery with their counsel. Cases are often won or lost in the discovery stage.

Nevada Revised Statute 11.190 governs statutes of limitation for a majority of legal actions brought within this state.

Those evaluating a claim to understand when it must be brought (generally the date by which the action must be filed in court) must be careful, however, since particular types of claims (medical malpractice, for instance) have statutes of limitations contained elsewhere in Nevada law.

NRS 11.190 provides:

NRS 11.190 Periods of limitation. Except as otherwise provided in NRS 125B.050 and 217.007, actions other than those for the recovery of real property, unless further limited by specific statute. 

Generally speaking, there are two phases to most cases: 1) the settlement phase, and 2) the litigation phase.

The litigation phase of a case can be divided into three distinct stages: 1) the complaint and answer stage, 2) the discovery stage, and 3) the trial stage.

This is the first of a series of articles that pertain to the stages of litigation in Nevada district courts cases.

This article will discuss in broad terms the compaint and answer stage and future articles will deal with the discovery and trial stage.

Complaint and Answer Stage

Litigation starts when a complaint is filed. A complaint contains factual allegations against the other side and sets forth legal claims and a "prayer" for relief. Claims are made up of elements and a party must prove each and every element of a claim to prevail on that claim.

Different types of damages are available upon the proof of different claims. Exact damage amounts are not alleged in district court complaints; rather, general allegations usually allege an approximate damage amount.

Similarly, facts set forth in complaints do not need to be exhaustive. Nevada is a notice pleading jurisdiction, which means, basically, that complaints only need to contain enough information to give the other side notice of a party's claims.

Most defendants have 20 days to answer a complaint. An answer sets forth defenses (such as failure to adhere to the statute of limitations or failure to set forth the necessary elements of a claim) and may set forth counterclaims or claims against third parties.

Arbitration

In many parts of Nevada, complaints that reflect that the value of a case is under $40,000.00 must proceed through arbitration before a party is entitled to a bench or jury trial. 

Nevada laws recognize that insurers owe special duties to their insureds and protections are set forth, both in Nevada statutes and in Nevada regulations, to protect insureds from their insurance companies. Nevada law allows for punitive damages to be awarded against an insurer that breaches certain obligations to its insured.

While numerous claims against an insurance company are possible in any given case, Nevada's "bad faith" claim (which is actually called a "breach of the implied covenant of good faith and fair dealing" claim) requires proof of 
the following elements:

1. Plaintiff and defendant entered into a contract; 
2. Defendant owed a duty of good faith to plaintiff arising from the contract; 
3. There was a special element of reliance or a fiduciary duty between plaintiff and defendant where defendant was in a superior or entrusted position; 
4. Defendant breached duty of good faith by engaging in misconduct; and, 
5. Plaintiff suffered damages as a result of the breach.

An insurance company acts in bad faith when it wrongfully denies coverage to an insured. An insurance policy is considered a contract between you and your insurance carrier. This contract requires that your insurer act in "good faith" toward you.

Insurers frequently attempt to deny claims for any reason they can. Also, even when an insurer acknowledges that a claim or lawsuit is covered by the insurance policy, it often attempts to underpay a claim. To prove bad faith, the insured needs to show that the insurer failed to honor the contract and had no cause not to pay what was due.

Insurers have a duty to deal fairly with insureds. Every insurance contract contains an unwritten covenant or promise of good faith imposed by law upon an insurer to always act fairly toward its insureds in handling their claims.

Examples Of Bad Faith

There are many examples of how an insurer can commit bad faith. These include: failing to promptly and thoroughly investigate a claim; unreasonably delaying payment; unreasonably denying benefits; using unreasonable interpretations in translating policy language; refusing to settle a claim or reimburse you for the entirety of your loss, etc.

Making Insurance Claims

Insureds should immediately notify their agents of claims and review their insurance policy as it relates to the claim. Document all events and all contacts and communications made, whether written or verbal, with the insurer. Keep track of the dates and times of communications and the identities of those with whom you spoke.

If you believe that your insurance company has acted in bad faith, contact an experienced attorney as early as possible.