Category: Law

Alimony & Child Support Payments: In A Bankruptcy

PaymentsEx-spouses and divorced parents have long tried creative solutions to avoid spousal and child support payments. In one instance, a father offered to give up all parental rights and make a lump sum payment for child support in hopes of avoiding larger payments as his income increased. Even lottery winners have been known to sell a winning ticket for cash at a discount to avoid alimony. And it doesn’t stop there. One former NFL player began paying spousal support only after he was forced to spend several days in jail for avoiding paying his former spouse.

After the breakup of a marriage, it is not uncommon for people to find their financial situation has changed dramatically with new expenses and obligations piling up. Divorce leads to unexpected legal expenses, changes in living arrangements, and costs associated with the division of marital property. According to Forbes, the average contested divorce costs between $15,000 and $30,000, with some being far more expensive.

Clients who are making spousal or child support payments often feel as though the payments are unduly burdensome and are otherwise unhappy with the terms of their divorce decree. It is no surprise then, many of these individuals turn to bankruptcy for relief. This is where family law and bankruptcy meet. One of the questions commonly received by bankruptcy attorneys is whether a client, in these circumstances, can discharge his or her spousal and child support obligations through bankruptcy.  Unfortunately for these clients, in most cases, the answer is “no.”

Personal bankruptcy through Chapter 7 or Chapter 13 of the Bankruptcy Code can be a very effective way of shedding debt and allowing a client to move forward with a fresh start. Our legal system has evolved from an earlier time in American history when people who could not pay their debts were sent to prison. And while the lay person often thinks of bankruptcy as providing a clean slate, some types of debt, including alimony and spousal support, cannot be wiped away or restructured in bankruptcy.

Broadly speaking, there are two types of debt when it comes to bankruptcy. The first is the dischargeable kind, which includes credit card debt, mortgage debt, medical bills, and utility bills. The second is the nondischargeable type, which, along with domestic support obligations like alimony and child support, also includes most taxes and often student loans.  Because of the overriding public policy favoring the enforcement of familial obligations, bankruptcy law leaves little discretion to the courts when it comes to the dischargeability of domestic support obligations.

The reasoning for this hard line on domestic support obligations like alimony and child support is twofold. First, bankruptcy is a matter for the federal courts and matters involving marriage, divorce, and child support are governed by the state courts.  Second, Congress has deemed child and spousal support to be too important to be dischargeable.  As the Ninth Circuit has explained, “Bankruptcy provides a way to leave one’s debts, but not one’s most fundamental family obligations, behind.”  In re Rivera, 832 F.3d 1103, 1106 (9th Cir. 2016).

Balancing the competing policies of allowing the honest, but unfortunate debtor a fresh start, and the public policy favoring the enforcement of familial obligations, Congress enacted the following two exceptions to the discharge provided to individual debtors under Chapter 7 and 13 of the Bankruptcy Code. The first is set forth in 11 U.S.C. § 523(a)(5), which states that “domestic support obligations” cannot be discharged in bankruptcy.  Courts have constantly held that the term domestic support obligations includes child support and alimony, but have extended it to include other obligations upon which family members and former family members rely. The second is set forth in 11 U.S.C. § 523(a)(15), which provides that a debt to a “spouse, former spouse, or child of the debtor” incurred by the debtor in the course of a divorce or separation is not dischargeable in bankruptcy. The critical issues here are the identity of the payee and whether under state law, the debt was incurred in the course of a divorce or separation.

While the language of 11 U.S.C. § 523(a)(5) and (15) are fairly broad, they are not without limitation. For instance, courts have held that obligations to third-parties, even if set forth in the divorce decree, may be discharged because the debts are owed to a third-party and not the spouse, former spouse, or child of the debtor. Similarly, property settlement payments may be dischargeable when they are merely affecting an equitable division of community property and not providing domestic support.

And divorcing spouses should beware that simply labeling a payment as spousal support or alimony in a divorce decree does not necessarily make it nondischargeable in bankruptcy. Rather, the bankruptcy court will look to whether the payment obligation is really for the support of the former spouse or child or was incurred in the course of the divorce or separation irrespective of what the payment is labeled in the divorce decree.

Thus, while spousal support payments and other payment obligations incurred in a divorce proceeding are usually not dischargeable in a bankruptcy – no matter how creative one gets – the best practice is to consult with a bankruptcy attorney before filing to make sure that the client doesn’t just end up back in family court.


Nedda Ghandi, Esq., is the founding partner of Ghandi Deeter Blackham Law Offices. A Nevada native, Ghandi is a graduate of the University of Nevada, Las Vegas William S. Boyd School of Law and has practiced law in Las Vegas for 9 years. Ghandi has written numerous articles for publications concerning interesting developments in the law, and has been selected as a member of Nevada’s Legal Elite and as a Super Lawyer every year since 2013. Ghandi Deeter Blackham specializes in family law, bankruptcy, guardianship, and probate. Consultations may be scheduled by calling 702.878.1115 or visiting www.ghandilaw.com.

Read Our Digital Issues

Like Us On Facebook

The MD-DC

MD

The Surprising Challenge Of Doctors & Chiropractors Working Together & How To (Legally) Do It

Allopathic physicians with a Medical Doctorate (M.D.) or a Doctorate in Osteopathic Medicine (D.O.) often find it valuable to partner with a chiropractic physician (D.C.). This relationship is especially valuable if the allopathic physician is a primary care provider. The relationship can also be quite profitable for a D.C. as well. However, the two types of providers cannot form a direct partnership in most states due to the Corporate Practice of Medicine (CPOM) laws. In addition, anti-referral laws such as the Anti-Kickback Statute (AKS) prohibit the individual providers from receiving financial benefits of any kind for referring patients, especially from other providers. This creates a paradoxical situation where all parties (the M.D./D.O., the D.C., and the patients) benefit from this specific partnership but significant legal roadblocks stand in its way. This article discusses how M.D./D.O.s may work with a D.C. to provide better care for their patients without running afoul of the various regulations governing medical practice.

The M.D.-D.C. partnership (commonly referred to as the “MD-DC”) creates substantial advantages for both types of providers and their patients. The first major advantage of the relationship is higher reimbursements. If an M.D. examines the patient, and sets and supervises the treatment plan for the D.C. to follow, the practice is allowed to bill for the chiropractor’s services as physical therapy under the M.D.’s billing code. For the same procedure, insurance providers, both government and private, reimburse up to three (3) times as much when billed under the M.D. compared to when billed under the D.C. In addition, if the D.C. is working under the supervision of an M.D., s/he can provide physical therapy services to the patients, apart from and in addition to chiropractic care.

The patients also derive significant advantages from MD-DC relationship. An M.D. is capable of treating a larger number of maladies than a D.C.; who must limit his/her practice to treating musculoskeletal issues. Chiropractic medicine only offers minimal prescriptive authority and most D.C.s are not even authorized to write prescriptions, for pain medication or otherwise. Therefore, if both types of providers are collocated and partners, patients only need to go to a single clinic to receive treatment for health issues other than musculoskeletal injuries, including primary care. Also, M.D.s are authorized to issue pharmaceutical prescriptions. Therefore, if the patient’s pain is not adequately addressed through chiropractic manipulations, they may be referred to the M.D. to receive pain management treatment, including pharmaceutical prescriptions. If needed, the M.D. may also be able to refer the patients directly to receive surgical care, cutting out an additional referral step and office visit.

The MD-DC provides patients with access to conservative care, allowing providers to treat patients’ issues with minimal pharmaceutical assistance and expense. In fact, many musculoskeletal injuries may be treatable with only chiropractic manipulation. Easy access to and optimal utilization of chiropractic manipulation allows the M.D. to prescribe a lower dose of analgesic (pain relieving) medication for musculoskeletal injuries. Analgesic medications, including opioids, have significant side effects, most notably, substance addiction. This MD-DC therefore aligns well with national public policy to combat the over-prescription of medications like opioids.

Unfortunately, despite the equitable advantages of these partnerships, they are legally difficult. CPOM laws in most states, including Nevada, prohibit medical practices from being owned by persons not licensed to practice medicine. See NRS 89.070.1. These laws also prohibit a non-M.D./D.O. from having any voting control (through equity) in a professional medical entity. Id. Therefore, an M.D. and a D.C. cannot form a professional medical entity together to provide medical services under Nevada law. However, these providers may still be able to work together under different types of arrangements.

The M.D. can own and operate a medical practice where s/he employs the D.C. to provide their services (the “Employment Model”). This employment arrangement can either be a flat, salary-based compensation, or it may provide the D.C. with an opportunity to earn a bonus based upon case volume and overall practice performance. However, for these bonuses, the M.D. employer and D.C. employee must negotiate the bonus compensation in advance and this bonus arrangement must be memorialized as a part of the D.C.’s employment agreement which must have a term of at least one (1) year to avail the practice of the employment safe harbors created in the anti-kickback laws.

The second method of the MD-DC is the management services organization (“MSO”) model. The two providers form an MSO which does not provide medical services. However, this entity may provide all of the necessary non-medical services to the M.D.’s (and the D.C.’s) practices/clinics, including but not limited to, leasing/buying space and equipment, paying non-clinical staff, billing and collecting, etc. The profit that the MSO makes for providing these non-medical services may be shared legally between the M.D. and the D.C. Each partner in the MSO may choose whether to contribute capital or services, or a combination thereof, and receive distributions of profit accordingly. Further details of the MSO structure can be found in our article entitled ‘The ABCs of the MSO’ published in the summer 2017 edition of Vegas Legal Magazine.1 This article explains the MSO corporate structure, the regulations governing it, and the common pitfalls providers face when participating in such entities.

The State of California is a notable exception in this regard since its CPOM law, the Moscone-Knox Professional Corporations Act, allows other licensed personnel such as chiropractors, psychologists, optometrists, clinical social workers, etc. to receive equity in a professional medical corporation, so long as the sum of the equity held by such other licensed personnel does not exceed forty-nine (49%) percent. Conversely, in a professional chiropractic corporation, the licensed allopathic physician(s) may hold equity so long as the total equity held by a non-chiropractor does not exceed forty-nine (49%) percent.

M.D.s and D.C.s may use either of the aforementioned arrangements (or combinations/versions thereof) to structure their relationship. However, both federal and state regulations addressing anti-referral and CPOM laws are extremely broad and complex. The arrangement, as set up, must be exactingly complaint with all the relevant criteria to survive regulatory scrutiny. Providers must be cognizant of not just the letter of the law, but also its spirit. In addition, the providers must put a robust dispute resolution structure in place at the outset so the interests of all parties, including the patients, are protected in the event of a disagreement between the providers down the line.

The providers are strongly encouraged seek the assistance of experienced healthcare counsel and financial advisors to set up an MD-DC. Counsel will ensure the established arrangement is not only compliant with law and public policy, and will also help implement robust measures to protect not just the interests of the individual parties, but also the confidentiality, integrity, and accessibility of the patient records in the event of a dispute. Finally, utilizing the services of a certified public accountant (CPA) with healthcare experience will help ensure that both providers receive equitable compensation for their hard work and capital, irrespective of the type of arrangement they decide on.

A partnership between an M.D./D.O. and a D.C. creates immense value in the healthcare marketplace. However, given the breadth and depth of the regulations governing such a relationship and the volume of increasingly lucrative violations thereof, it is easy for providers to be lured into relationships that may land them into trouble. Aspiring MD-DC participants should understand that the power of partnership can be as risky as it is profitable. Collaboration is just as important clinically as it is professionally, and the right professional team can make the MD-DC everything it promises to be, and more.


Glenn H. Truitt, Esq. is a managing partner at Ideal Business Partners (www.idealbusinesspartners.com), a multidisciplinary professional services firm serving healthcare professionals with state-of-the-art legal, financial compliance and strategic advice, working together to lift up their practices. IBP consults with ComplyPro (www.mycomplypro.com), a HIPAA compliance services company, serving Nevada and southern California, and employing both traditional and digital compliance tools to develop comprehensive, customized compliance solutions for any size practice.

Malvika Rawal, Ph.D., J.D., is a law clerk at Ideal Business Partners. She received her Master of Science at the University of Delhi in Biomedical Sciences and her doctorate degree in Free Radical and Radiation Biology at the University of Iowa. She then received her Juris Doctor at the University of Iowa College of Law in May 2016. Rawal is deeply involved with ComplyPro, a HIPAA compliances services company.

Read Our Digital Issues

Like Us On Facebook

Imaging Manifestations In Traumatic Brain Injury

InjuryIn the imaging of Traumatic Brain Injury (TBI) patients, findings such as cerebral contusions, hemorrhagic and non-hemorrhagic shearing injuries, ‘coup contrecoup’ injury, subdural hematomas, intraparenchymal hematomas, subarachnoid hemorrhage, and skull and facial fractures are sensitive and specific findings for head trauma. In most cases there is no disagreement that these findings are directly related to traumatic brain injury and the clinical history of head trauma. However, there are additional findings that can be seen in traumatic brain injury that may also be identified as normal variants, creating confusion for radiologists, clinicians, and lawyers. The understanding of these concepts is essential for attorneys managing medical legal cases relating to head trauma.

Dilated Perivascular Spaces

Dilated perivascular spaces (also called Virchow-Robin spaces) are small focal cystic areas adjacent to tiny vessels in the brain. These can be seen in asymptomatic populations as normal variants; however, these have been described as increased in size and number in patients with head trauma when compared to normal controls.1 Posttraumatic dilated perivascular spaces, can also be found adjacent to shearing injuries in a subcortical location.2, 5

An extensive literature review article on this subject concluded: “A judgment on whether dilated VRS in an individual patient is a normal variant or part of a disease process can be made by taking into account the appearance of the adjacent tissue on MRI and the clinical context”.3

Cavum Septum Pellucidum

The septum pellucidum is a thin midline structure that separates the lateral ventricles. The lateral ventricles are large central cavities which contain the cerebral spinal fluid which coats the brain. A “cavum” septum pellucidum is a fluid-filled cavity within the septum pellucidum. Although a cavum septum pellucidum is often considered a normal variant, it has also been associated with neurodevelopmental and neuropsychiatric disorders.4, 14 It has also been reported that a cavum septum pellucidum may also result from, or increase in size, following traumatic brain injury.  Higher rates of a cavum septum pellucidum have been reported in TBI patients when compared to the general population.5, 14

Empty Sella

The pituitary gland sits in the sella turcica, a bony structure in the anterior-inferior skull, and is intricately involved in endocrine/hormone production and regulation. When the pituitary gland is decreased in size, it is called a ‘partially empty sella’, or an ‘empty sella’, depending on the degree of atrophy. An empty sella may be a normal variation, but can be seen in patients with endocrine disorders and may also be acquired secondary to pituitary atrophy from TBI. Hypopituitarism may be found in up to 25% of all traumatic brain injury patients and 47% of all patients with subarachnoid hemorrhage.6 These patients may develop new endocrine dysfunction secondary to hypothalamo-pituitary dysfunction due to traumatic brain injury and this should be assessed clinically.7, 16

Chiari Malformation

The cerebellar tonsils extend inferiorly from the cerebellum and posteriorly to the medulla. In most people, cerebellar tonsils terminate at or just below the foramen magnum (the boundary between the brain and spinal cord). If they extend greater than 6 mm below the foramen magnum in adults, a Chiari I malformation is present. Many Chiari I patients are asymptomatic. However, it is widely reported that symptomatic Chiari I patients may experience worsening symptoms following head trauma and asymptomatic Chiari I patients may develop new symptoms following head trauma. Therefore, clinical correlation is recommended in these patients.8, 15

Atrophy

Following any insult to brain tissue, whether from stroke, tumor, infection or trauma, there is often swelling in the immediate phase followed by atrophy (shrinking/decrease in size of brain tissue). Atrophy is responsible, at least in some part, for the already discussed findings of ‘empty sella’ and ‘dilated perivascular spaces’. It is common to see focal brain atrophy in the same location of previous cerebral contusions and intraparenchymal hemorrhages.

The hippocampus, a part of the inferiomedial temporal lobe, which has a variety of functions such as memory and emotions, is particularly susceptible to injury following head trauma and the resultant atrophy may be seen on MRI.9, 17

In addition, diffuse brain atrophy is also well described in TBI, particularly in patients with diffuse axonal injury (widespread damage to the brain with extensive lesions in white matter tracts).5,10 A study that followed patients over 30 years found that a reduction in hippocampal volume and lateral ventricular enlargement were significantly associated with memory function and executive functions. Specifically, the best predictor for cognitive outcome was the volume of the lateral ventricle.11  Some authors have suggested these MRI brain volumetric measures are of greater prognostic value than the initial severity of the TBI.12, 13

Conclusion

Interpretation of the above findings can be challenging and is often more helpful in aggregate than in isolation. Advanced neuroimaging options such as SWI, DTI, fMRI, Perfusion, NeuroQuant, LesionQuant, 3D cube FLAIR, and Spectroscopy may also assist in evaluating patients with TBI and add clarity to some the above findings. Similarly, MRIs obtained even years after the original injury can be compared to MRIs predating the injury or immediately following the injury and provide helpful diagnostic and prognostic information.

Of course, any imaging findings should be assessed in the proper clinical context and absence of supporting imaging findings does not exclude injury. Clinical corroboration is always advised.


Dr. Snyder is a 2009 Touro University of Nevada Osteopathic Medical School graduate and a current assistant adjunct professor of Radiology and Neuroradiology at Touro. He completed his radiology residency at McLaren Macomb (Michigan State) in Michigan and his neuroradiology fellowship at the University of Miami and returned to Las Vegas to practice at SimonMed Imaging in Las Vegas. He has special interests in teaching rotating medical students, lecturing, and research on advanced imaging techniques for traumatic brain injury and carbon monoxide poisoning.

1 Inglese,M., Bomsztyka, E., et al. (2005). “Dilated Perivascular Spaces: Hallmarks of Mild Traumatic Brain Injury”. AJNR 26: 719-724.

2 Inglese M, Grossman RI, Diller L, Babb JS, Gonen O, Silver JM, Rusinek H. (2006). “Clinical significance of dilated Virchow-Robin spaces in mild traumatic brain injury”. Brain Inj. 20(1):15-21.

3 Groeschel S1, Chong WK, Surtees R, Hanefeld F. (2006). “Virchow-Robin spaces on magnetic resonance images: normative data, their dilatation, and a review of the literature”. Neuroradiology. 48(10):745-54.

4 Raine A, Lee L, Yang Y, and Colletti P. (2010). “Neurodevelopmental marker for limbic maldevelopment in antisocial personality disorder and psychopathy”. Br J Psychiatry. 197(3):186-92;

5 Orrison WW, Hanson EH, Alamo T, Watson D, Sharma M, Perkins TG, Tandy RD. (2009). “Traumatic brain injury: a review and high-field MRI findings in 100 unarmed combatants using a literature-based checklist approach”. J Neurotrauma. 26(5):689-701; Silk T, Beare R, Crossley L, Rogers K, Emsell L, Catroppa C, Beauchamp M, Anderson V. (2013). “Cavum septum pellucidum in pediatric traumatic brain injury”. Psychiatry Res. 213(3):186-92.

6 Schneider HJ, Kreitschmann-Andermahr I, Ghigo E, Stalla GK, and Agha A. (2007). “Hypothalamopituitary dysfunction following traumatic brain injury and aneurysmal subarachnoid hemorrhage: a systematic review”. JAMA. 298(12): 1429-38.

7 Krahulik D, Zapletalova J, Frysak Z, and Vaverka M. (2010). “Dysfunction of hypothalamic-hypophysial axis after traumatic brain injury in adults”. J Neurosurg. 113(3):581-4; Benvenga S, CampennÍ A, Ruggeri RM, and Trimarchi F. (2000). “Hypopituitarism Secondary to Head Trauma”. J Clin Endocrinol Metab. 85 (4): 1353-1361.

8 Wan MJ, Nomura H, and Tator CH. (2008).  “Conversion to symptomatic Chiari I malformation after minor head or neck trauma.” Neurosurgery. 63(4):748-53

9 Tate DF and Bigler ED. (2000). “Fornix and Hippocampal Atrophy in Traumatic Brain Injury”. Learn. Mem. 7: 442-446;

10 MacKenzie JD, Siddiqi F, Babb JS, Bagley LJ, Mannon LJ, Sinson GP, and Grossman RI. (2002). “Brain Atrophy in Mild or Moderate Traumatic Brain Injury: A Longitudinal Quantitative Analysis”. American Journal of Neuroradiology.  23 (9) 1509-1515;

11 Himanen, Leena & Portin, Raija & Isoniemi, Heli & Helenius, Hans & Kurki, Timo & Tenovuo, Olli. (2005). Cognitive functions in relation to MRI findings 30 years after traumatic brain injury. Brain injury : [BI]. 19. 93-100. 10.1080/02699050410001720031.

12 Himanen, Leena & Portin, Raija & Isoniemi, Heli & Helenius, Hans & Kurki, Timo & Tenovuo, Olli. (2005). Cognitive functions in relation to MRI findings 30 years after traumatic brain injury. Brain injury : [BI]. 19. 93-100. 10.1080/02699050410001720031;

13 Timming R, Orrison WW, Mikula JA. (1982). “Computerized tomography and rehabilitation outcome after severe head trauma”. Arch Phys Med Rehabil. 63(4):154-9.

14 Silk T, Beare R, Crossley L, Rogers K, Emsell L, Catroppa C, Beauchamp M, Anderson V. (2013). “Cavum septum pellucidum in pediatric traumatic brain injury”. Psychiatry Res. 213(3):186-92.

15 Mehta, A. I., Grant, G. A., Gray, L., & Sampson, J. H. (2011). “Radiographic progression of a Chiari I malformation after minor head trauma: Final increment of obstruction to create pathophysiology”. Journal of Surgical Radiology. 2(3), 290-293.

16 Benvenga S, CampennÍ A, Ruggeri RM, and Trimarchi F. (2000). “Hypopituitarism Secondary to Head Trauma”. J Clin Endocrinol Metab. 85 (4): 1353-1361.

17 Ross DE, Ochs AL, DeSmit ME, Seabaugh JM, Havranek MD. (2015). “Alzheimer’s Disease Neuroimaging Initiative. Man Versus Machine Part 2: Comparison of Radiologists’ Interpretations and NeuroQuant Measures of Brain Asymmetry and Progressive Atrophy in Patients With Traumatic Brain Injury”. J Neuropsychiatry Clin Neurosci. 27(2):147-52.

Read Our Digital Issues

Like Us On Facebook

Thomas v. Nevada Yellow Cab (2014)

Thomas

Since 2012, my mentor, Marc C. Gordon, Esq., and I have been litigating and defending what has become known as the largest employment law class action case in the history of Nevada involving over 5,000 current and former drivers of Yellow Checker Star Transportation (YCS). The case went to the Nevada Supreme Court (NSC) and in 2014 in an intensely divided 4-3 decision, we did not prevail. However, the issues in this case shed light on the legal uncharted world of “implied repeal.” Thomas v. Nevada Yellow Cab Corporation, 130 Nev. Adv. Op. 52 (2014).

In all of American Jurisprudence, there never existed a case similar to its facts and the multiple novel issues of law. From an outsider’s perspective, it is immensely fascinating. But, from my vantage point, it has caused numerous sleepless nights defending a case with so many novel legal issues that to date, have not been completely resolved.  It all stems from the 2006, Nevada Constitutional Minimum Wage Amendment (MWA) that was passed by voters and signed into law on July 1, 2007, guaranteeing a base wage for Nevada workers.

In 2006, under NRS 608.250(2)(e), taxicab and limousine drivers were declared exempt from minimum wage because they are paid based on commission. However, the NSC ruled that NRS 608.250(2)(e) was “impliedly repealed” in 2006, when Nevada voters voted in favor of the MWA.

“The Amendment’s broad definition of employee and very specific exemptions necessarily and directly conflict with the legislative exception for taxicab drivers established by NRS 608.250(2)(e). Therefore, the two are “irreconcilably repugnant,”… such that “both cannot stand,”… and the statute is impliedly repealed by the constitutional amendment.” (Page 6 of Thomas decision).

The NSC ruled that MWA supersedes NRS 608.250(2). “The text of the Minimum Wage Amendment, by enumerating specific exceptions that do not include taxicab drivers, supersedes and supplants the taxicab driver exception set out in NRS 608.250(2).”  (Page 9 of Thomas decision).

In 2009, United States District Court of Nevada Judge Clive Jones was the first jurist to weigh in on the question of “implied repeal,” interpreting Nevada law in Lucas vs. Bell 2009 WL 2424557 (D. Nev. June 24, 2009). His decision against “implied repeal,” although not binding on the NSC, was nonetheless the only statement of competent judicial authority on the Nevada law question, and remained so until Thomas. From 2006, until June 26, 2014, employers followed the law as interpreted by Judge Jones, and were reasonable in doing so, since the NSC had not spoken otherwise. In addition, the Nevada Labor Commissioner comported with that state of affairs, and continued to recognize the validity of NRS 608.250(2) exemptions until Thomas. The Labor Commissioner never initiated action against any of the taxicab or limousine companies consistent with NRS 607.160(2) which states:

“If the Labor Commissioner has reason to believe that a person is violating or has violated a labor law or regulation, the Labor Commissioner may take any appropriate action against the person to enforce the labor law or regulation whether or not a claim or complaint has been made to the Labor Commissioner concerning the violation.”

The entire taxicab and limousine industry was following the law as it existed and was understood at the time, which was being enforced by the Office of Labor Commissioner. However, the Thomas, decision made it clear that the exemptions under NRS 608.250(2) no longer applied.

NRS 608.250(2) contained exemptions in effect since 1965, which employers reasonably and legitimately relied upon. In fact, these exemptions still remain on the books as of today, which is more perplexing since the Thomas decision was clear that those exemptions were “impliedly repealed.” The exemptions include the following: casual babysitters; domestic service employees who reside in the household where they work; outside salesperson whose earnings are based on commissions; employees engaged in an agricultural pursuit for an employer; taxicab and limousine drivers; and persons with severe disabilities whose disabilities have diminished their productive capacity in a specific job and who are specified in certificates issued by the Rehabilitation Division of the Department of Employment, Training and Rehabilitation.

Based on the Thomas ruling of “implied repeal,” any worker in Nevada outlined in those exemptions can now bring a class action lawsuit against their respective employer for conduct that occurred prior to 2014, although there is a 2-year statute of limitations.  To date, the only previously exempted industries to be civilly sued are taxicab and limousine companies. Unfortunately, the Thomas decision does not spell out what that process would entail and how it would coincide with the legal enforcement mechanism of the Office of Labor Commissioner, which never initiated any enforcement action prior to Thomas. The intent of the Thomas decision was not to punish employers who reasonably and legitimately relied upon NRS 608.250(2) exemptions. Rather, the intent of Thomas was to make one conclusive opinion on minimum wage law and to clarify the law going forward. Uncertainty in the law always breeds expensive litigation and inequities. Unfortunately, there still remain issues of law surrounding the MWA that have yet to be resolved.

The Department of Business and Industry shed light on the confusion and uncertainty as to the state of minimum wage law in Nevada and the interactions between the MWA and NRS 608.250(2) in its winter 2014 newsletter on page 7 titled, A Minimum Wage Guide For Nevada Employers. “While the constitutional amendment did not directly conflict with the exemptions outlined in NRS 608.250, its passage created some uncertainty. It was this uncertainty that the Nevada Supreme Court addressed in Thomas v. Nevada Yellow Cab, 130 Nev. Adv. Op. 52 (2014).” The legal battle and sleepless nights will continue, but for now employers are advised to take note of the decision in Thomas.


Tamer B. Botros, Esq., is the Senior Litigation Counsel at Yellow Checker Star Transportation and is currently defending the largest class action employment law case in the history of the State of Nevada.  His practice consists of litigating complex civil cases. He can be reached at tbotros@ycstrans.com and (702) 873-6531. He is also the founder of www.702TICKETLAWYER.COM

Read Our Digital Issues

Like Us On Facebook

 

 

Credibility & Bias In Economic Experts

economic

Economists are used widely by attorneys in personal injury and commercial litigation.  The reliance upon economists calls for scrutiny by attorneys regarding the expert’s credentials, and vigilance regarding the potential biases in assumptions and methodology. Plaintiff and defense attorneys can learn some simple rules to check an opposing economist’s work for obvious bias in methods that violate certain basic ground rules in economic assessment. Simple guidelines can assist attorneys to become aware of the degree of neutrality exercised by their own, and the opposing expert.

BIASED ECONOMIC ASSESSMENTS

Economic experts may use biased methods to portray favorable results in earnings loss calculations. When calculating the loss of earnings from a personal injury, wrongful death, wrongful termination, or other career interruption there are four main determinants of such lost earnings: the earnings base, the expected economic growth rate of earnings, the period of future loss, and the interest rate used to discount to present value. Biases may appear modest in any one of the four assumptions but, combined, can lead to a significant bias in the overall result. Many of these biases are simple to detect.

Earnings Base: The estimate of the earnings loss expected in the first year after the plaintiff’s injury is the platform upon which all else is built. Suppose that an earnings history, whether of a company, a product, or an injured employee, has progressed upwards for a five-year period prior to the injury in the following manner: $70,000, $71,000, $72,000, $73,000 and $74,000. To the untrained eye, a projection of $75,000 the following year appears reasonable. But this simplified approach does not take inflation into account. To properly forecast the future, the past earnings must first be recalculated and stated in the same year’s (constant) dollars. If inflation for the five-year period in question had been 2 percent each year, the losses all recalculated and stated in the base year’s (constant) dollars are $75,770, $75,346; $74,909; $74,460; $74,000.  This shows a distinct pattern of declining real wages. If inflation is low, we can estimate that the actual earnings may remain close to $74,000, or even possibly fall to the average of past earnings, since real wages are indeed falling. Further any rapid earnings grown early in a person’s career generally does not persist in the long run.  However, future prospective promotions cannot be ignored.

Other biases result from assuming without foundation that future recessions will not impact earnings, that overtime hours worked in the past will persist long term, or that economic expansions either in an industry or in the overall economy will not end.  Sometimes an economist will use just one strong past year’s earnings to project the future. Alternatively, an economist may offer a “dismal” view of an individual’s earnings future, assuming that only recession-era earnings continue to the future, or assuming earnings from only a partial year worked. In tandem with the wage base, proper calculation of fringe benefits likewise requires scrutiny. For example, sick time or vacation time isn’t strictly a monetizable benefit. Profit sharing in a good year may not persist.

Earnings Growth: The bias of an inflated earnings base can be compounded by the bias of an inflated growth rate. In the example above, a real growth rate above zero may not be justifiable. In seven of the last 20 years, including four of the five years from 2009 through 2013, wages have shown negative real growth. A fair estimate is to use the last twenty years or so as a standard, which has been shown to be a reasonably good and relatively valid predictor of the future. Some careers may merit strong future wage growth assumptions while others may merit the contrary.

Period of Economic Loss: Many economists will offer the loss to only a specific age, calculating one terminal figure. It is relatively easy, however, to show losses for each year through the plaintiff’s life expectancy. The losses from working through any age can be read off such tables. The Jury can be in charge!

Many economists will use a retirement age from statistically average work-life tables; these tables present many problems even if appropriately used in states where expected or likely earnings are the standard of recovery. However, in Nevada it is the capacity to earn income that is the measure of damages, not expected earnings. Further, work-life tables cannot differentiate between people who are forced to retire due to health concerns, and those who could continue to work, but choose to retire to spend time with family, purse hobbies, or volunteer. And importantly, work-life tables don’t necessarily apply to a specific individual. Some economists “front load” the work-life by assuming that future years of salary would have been earned through consecutive, full-time employment instead of spreading out over all future years in a manner equal to the statistical work-life expectation of an average worker; this front-loading can result in an upward bias of 5 percent to 10 percent.

Discount to Present Value: Discounting to present value means taking into account the fact that an award, invested safely, will earn interest. One of the common plaintiff- biased approaches is to use the total offset method which assumes that the discount rate is equal to the wage growth rate. This assumption is made by some vocational experts or others such as MBAs or CPAs who have only a bachelor’s of accounting and who do not have serious, advanced economic training and cannot justify the selection of individualized growth and discount rates. By assuming rates to be offsetting, presto! the problem of explaining the choice of specific growth and discount rates disappears. But these rates have not been not offsetting historically.

Generally, government bonds are regarded as safe, and free from risk of default. For the defense, some experts use high yield instruments such as Corporate Bonds, Municipal Bonds, or Equity Funds which are distinctly riskier than government bonds.  Many municipalities have declared bankruptcy in recent years. On the other hand, there may be times when using a higher interest rate assumption is warranted.

When calculating a present value of the cost of future life care, an economist should differentiate the future growth of medical services from those of non-medical services and commodities. Home health or institution care for injured parties are custodial, not true medical services. Yet the cost is often erroneously projected to grow at the much higher expected rate of growth of medical care services. In addition, institutional care provides for some of the personal consumption costs of the injured party, whereas economists seldom deduct the sum of the expected personal consumption from lost wages in an injury case.

INADEQUATE CREDENTIALS

Lack of adequate credentials can negatively impact the jury and reduce the weight given to expert economic witness testimony, especially if the opposing expert has excellent credentials. How will a jury weigh testimony from a Ph.D. in economics versus a bachelor’s in accounting or a business major? Many persons testifying to economic loses lack serious advanced economic training in a graduate degree-oriented curriculum in economics or finance; and you should challenge the admissibility of any economic testimony proposed by experts who lack proper training in economics. Even if Einstein took a summer course in economics, he wouldn’t be an economist. At times, nurses, psychologists, physicians, and physiatrists and life care planners purport to estimate the present value of future medical care cost assessments merely by multiplying the actual annual costs by the number of years of remaining life expectancy, circumventing the present value process completely. Some without an advanced degree in economics also frequently estimate the present value of a business or future lost income, but they are not trained in estimating future economic growth or the likely future rate of interest as a discount rate. Vocational rehabilitation counselors at times also purport to provide economic forecasts. A few may have proper credentials, but others may be trained solely as high school vocational guidance counselors. Some consultants have a master’s degree in business which, per se, does not indicate serious advanced training in economics. After hearing testimony on lost earnings from one MBA, a judge commented at court that he had never heard an expert so “utterly and totally lacking in credibility.”

What does credentialize an economist mean?  In general, there are four Gold Standards for economists and other experts. First, the highest degree in their field, in this case a Ph.D. in economics or finance. This demonstrates mastery of the subject at the highest level of education. Second is published, peer-reviewed empirical research, proving that an expert’s thinking has “passed muster” of their peers. This shows mastery of the subject at the level of an empirical researcher who contributes to the field. Third is teaching a college-level course at an accredited college or university. This shows mastery of the subject at a professorial level deemed sufficient to pass on wisdom to students in the field. The final “Gold Standard” that can be offered by an expert is the authorship and publication of a textbook used at an accredited college or university in courses taught by others. This shows a broad mastery of the field at a level that is relied upon by other academics and professors in the field.

Additionally, practical experience working in the field of economics and finance in academia, or in industry, outside the area of expert witness testimony, should be viewed as important. An ivory tower academic “egg head” may lack practical knowledge. If the consultant does not have the proper education and training and other accompanying credentials; discrediting his or her testimony can easily happen. The cross-examination will concentrate on the relative lack of credentials, not on the opinions.

CONCLUSION

Fair and unbiased estimates produced by a properly trained expert economist may shorten the dispute and reduce case expenses, and increase the likelihood of a settlement. The simple biases discussed here are easy to detect by hiring attorneys, and should be abided by either side. Most Ph.D. economists adhere to and use proper economic standards; but by keeping in mind some simple principles you will help to insure it. Laid head to toe, all the biased economists of the world may never reach a fair conclusion. Nevertheless, you should not be forced to accept anything less.


Stan V. Smith, Ph.D., is president of Smith Economics Group, Ltd. headquartered in Chicago.  Trained at the University of Chicago (one of the world’s pre-eminent institutions for the study of economics and the home of the law and economics movement), Smith has also taught at the university and co-authored the first textbook on the subject of economic damages.  A nationally-renowned expert in economics who has testified nationwide in personal injury, wrongful death and commercial damages cases, Smith has assisted thousands of law firms in successful results for both plaintiffs and defendants, including the U.S. Department of Justice. To that end, Smith also developed the first course in forensic economics at DePaul University, and pioneered the concept of “hedonic damages,” testifying about the topic in landmark cases.  His work has been featured in the ABA Journal, National Law Journal, and on the front page of The Wall Street Journal.  Kyle Lauterhahn is a Senior Economic Analyst at Smith Economics Group in Chicago.

Read Our Digital Issues

Like Us On Facebook

 

Meet The Incumbent: Judge Rob Bare

Judge

In this edition of Meet The Incumbent, VLM interviews Judge Rob Bare, a judge in Department XXXII of the Eighth Judicial District Court. Bare began his career as an attorney in the U.S. Army Jag Corps. When the opportune time presented itself, he decided to surprise his mother and run for the position of judge, the pinnacle of the legal profession. It is his love, service and respect for his family and others that drives him. Bare is a graduate of the University of Pittsburgh School of Law and a former Bar Counsel for the State Bar of Nevada.

Vegas Legal Magazine: What did you do before becoming a judge?

Judge Bare: I was an Army Lawyer (Captain, U.S. Army Judge Advocate General’s Corps), Bar Counsel for the State Bar of Nevada, and I accepted an assignment as a Municipal Court Judge in 2007.

VLM: What is the most memorable case you tried as an attorney before taking the bench?

JB: I tried a professional discipline case that I prosecuted as Bar Counsel for the State Bar of Nevada concerning allegations that an attorney had misappropriated nearly $400K from client trust accounts. It was a week-long trial where I called a number of her former clients as witnesses and I assisted them in telling their stories. Each story was incredibly compelling. Tremendous damage is done when a lawyer steals money from client(s). The lawyer was disbarred and, perhaps more importantly, the sworn testimony from clients helped to get them at least partial reimbursement for their losses.

VLM: What made you decide to run for judge?

JB: The experience I had when I was in Municipal Court made me feel that the judiciary was the right place for me. In addition, though it may sound sentimental, the truth is that I started my life in an orphanage and was adopted, and I wanted my election to happen during my mom’s lifetime (since she was in her late 70’s at that time). My investiture was essentially a tribute to my mom.

VLM: What does being a judge mean to you?

JB: I was honorably discharged from the U.S. Army after deciding to settle in Nevada and practice law in 1993. You can take yourself out of the army, but you can’t take the army out of yourself. Though I don’t think I’m a general, I do feel like at times I am a colonel. What I mean is this: I view being a judge as having a higher responsibility and is therefore the pinnacle of our profession, similar to the rank structure in the armed-forces.

VLM: What is your favorite and least favorite thing about being a judge?

 JB: My favorite thing about being a judge is presiding over a jury trial. My least favorite thing is when the trial settles. Really! I enjoy the drama and display of professional skills that good lawyers bring to the courtroom. I am also proud of the public who take time out of their busy schedules to resolve disputes as members of a jury panel. I love watching the constitutional right to a jury trial play out.

VLM: What is the most memorable case you have presided over as a judge?

JB: I was asked to determine whether the procedure that the county commission used to dissolve or abolish the position of Constable was fair. After a hearing process, I did determine that their decision to no longer have a Constable in Las Vegas was proper.

VLM: Describe a situation where you had to support a legal position that conflicted with your personal beliefs? Please tell us how you handled it.

JB: In Municipal Court, under city law, it was a misdemeanor to have more than 3 dogs. When those cases came up, it was evident to me that the offender who had 4-5 dogs took better care of their dogs than most people with 1 or 2 dogs. Within the ethical allowable boundaries at sentencing, looking back, I would normally not be very harsh in sentencing those cases. In other words, though as a court I would always enforce the law, along with both the defense and prosecution, we would often find creative ways to provide for no repeat offenses on these cases.

VLM: Describe a court situation that tested the limits of your patience.  How did you respond? In hindsight, is there anything you would have done differently?

JB: I had a non-lawyer showing up to our misdemeanor appeal calendars, reaching out to pro se litigants, and essentially offering to represent them. It became apparent that this was the unauthorized practice of law. I issued a specifically tailored contempt order to stop him. Looking back, I have learned that the better practice in any contempt scenario is to make more specific findings and scrupulously follow technical trappings of contempt procedural law as this is an area wrought with pitfalls for judges. At the end of the day, my handling of this mess worked, and the unauthorized practice stopped.

VLM: What’s your biggest pet peeve caused by attorneys that appear in your courtroom?

JB: My biggest pet peeve is when attorneys, in an inappropriate manner, direct questions or arguments to each other instead of the court.

VLM: What is your best piece of advice for litigants and/or attorneys?

JB: To litigants: Though not legally necessary, in civil cases, get a lawyer. To attorneys: The most important asset as an attorney in Nevada is your reputation.

VLM: What is your passion outside of law?

JB: Jeep trips throughout Nevada. I have a 3-day jeep trip mapped out that is a result of trial and error over fifteen years that, if you go on, you’ll more than likely want to get a jeep! I also have a passion for artwork; both my own and others. I also enjoy red wine induced philosophy talk with my wife.

VLM: What do you love most about Vegas?

JB: Restaurant hours!

Read Our Digital Issues

Like Us On Facebook

Farewell Marshall Bill

Marshall BillFor those who work or practice at Family Court, everyone knew “Marshal Bill.” William Michael Datthyn was born on October 13, 1971, in New York and tragically passed on September 3, 2017, on a river in Idaho. Bill is survived by his mother, 2 brothers, 1 married sister and their children. A memorial was held at City Hall on September 15, 2017.  Stories from his life were shared by both family and friends. I was approached by Vegas Legal Magazine to do a story on Bill from my personal perspective since not only was I his boss, he was a best friend. I was awoken many times during the weeknights leading up to my talk given at his memorial and I took them as Bill giving me hints as to what he wanted me to say. In the past week, this has occurred yet again. That is when this article changed from silly stories from our “bromance” to a simple acknowledgment of Bill’s heroism.

Bill followed in his mother’s footsteps and became an NYPD officer in January 1993.  He obtained special permission to wear his mother’s retired shield #891. Bill was in New York for those tragic events of September 11, 2001. Fortunately, he was not in or around the buildings that came down on that fateful day. Bill did know some of the first responders that perished and in the long weeks afterward, he worked tirelessly in the cleanup efforts of that enormous aftermath. Bill discussed generally what he did in those cleanup efforts, but the specifics he kept mostly to himself. From what Bill said, he was involved in the discovery and cataloging of body parts as they were recovered. His sister stated at the memorial that Bill would often brag that he got to eat for free at Olive Garden after his long shifts.

In May 2006, Bill was in a motorcycle accident where he sustained injuries that would not allow him to continue his NYPD service. He later moved to Las Vegas and was hired briefly by the Transportation Security Administration (TSA), a subdivision of the Department of Homeland Security. This was his way of trying to continue to keep our country safe. However, as you may recall from the many news stories at the time, the TSA was in complete disarray.  Bill could not handle chaos; he needed things to be neat and organized. As a result, he resigned from the TSA and took a job as an Administrative Marshal at Family Court in January 2007.

I hired Bill as my Judicial Marshal prior to taking the bench in January 2009. We worked together from my first day on the job until his last day on the job. 9/11 was always a special day for Bill. He would always bring to work a small corner of stone every 9/11 to remind fellow employees, attorneys, litigants, etc. to “never forget.” I am certain that piece of stone from those hallowed grounds was his most cherished object in this life. At his memorial, the U.S. flag flown at half-staff at Family Court on September 11, 2017, was presented to Bill’s family as a token of his dedicated service.

Bill was a protector. As a judge, it is truly overwhelming to contemplate that a fellow human being has taken an oath to protect my life. I have no doubt that Bill would have sacrificed his life for me or my family. I would often bring Bill along to social events as he loved to socialize. If the event included other judges and had no security, he then became the security. Bill would take a strategic position in the room and constantly scan for any issues. When judges would slip out of the event, he would escort them to their car to ensure they left safely. He was not paid a dime for this service.

Bill was compassionate. Every Valentine’s Day he would buy 100 roses and hand them out to all the female employees in the building. He wanted to ensure that everyone was recognized on that day and that no one was overlooked. Except for the hot summer months, Bill held a monthly barbeque in our parking lot, sending reminders out to the whole building. Tips were accepted, which he would put toward the next month’s costs. Normally, he personally just funded the difference. It was done not only to feed those who enjoyed his cooking, but to also create a social environment. Bill had a photographic memory. Whenever we walked the halls and someone would ask him when the next barbeque was, he could later tell me their name, job title and a few things personal things about them.

A few weeks before he passed, Bill received a phone call from his doctor while we were preparing for court. He then approached me and disclosed that he had been paying out-of-pocket every year for specialized tests to ensure that his service at Ground Zero had not affected his health. Bill disclosed that whatever levels they were monitoring had just become elevated. For the first time ever, I could sense fear in my friend. I tried to console him that tests were often wrong and everything was going to be just fine. Bill then decided to take a last minute trip to go be with his family when the accident occurred.

I do not profess to know all of life’s answers. However, I do believe that all things happen for a reason. My belief of this tragic accident–it was Deity simply having compassion on this faithful servant of our community and not allowing him to suffer or endure incomprehensible pain. I miss my best friend. Just the other day an attorney gave me his condolences. He teared up, so did I and then we both became blubbering messes. What would cause 2 grown men to sob like children? It was the service, compassion, protection, heroism, and friendship of William Michael Datthyn. Godspeed Marshal Bill!

Read Our Digital Issues

Like Us On Facebook

Preparing For Trial With A Mock Trial

Trial

One of the most difficult aspects of trying a major case whether it’s civil or criminal is simply not knowing how a jury will interpret the major aspects of your case. More problematic, the closer an advocate is drawn into building their case the more likely they are to be blinded by their depth of understanding their own arguments. A sort of target fixation occurs.

The use of focus groups can help you understand the jury’s attitudes and prejudices long before you walk up the courthouse steps. We recently worked closely in presenting a mock trial before a focus group on a civil case with Las Vegas attorney Dan Carvalho. The case resulted in a settlement of tens of millions of dollars. In this segment of The Court Of Public Opinion, we interview Mr. Carvalho on the topic of mock trials and focus groups.

Q: After going through the mock trial and focus group, what is the critical advantage you’ve seen?

Dan Carvalho: There is no form of trial preparation, in my opinion, that gets you ready to put on your case better than to actually go through a mock exercise of it.

In other words, your evidence that you think is going to work well, or not work well, it’s just what you think. But once you’ve exercised it — in this recent case we worked on we had 30 human beings and we got to hear what they all had to say about it — when you start to see the trends of 29 of 30 not willing to go above 20 percent comparative negligence, you start to realize that these arguments work on something that’s critically important to them. They get it.

It may look like a large expense initially, but it almost always pays for itself, doesn’t it?

From the plaintiff’s perspective, when you only get paid as an attorney if you recover, what always motivates me is the fear of not recovering.

If you’re really doing a good job for your client, you have to treat it like you can’t lose. What do you have to do to prepare yourself to not lose? You out-prepare, outwork your opponent. Doing what we did is part of just that.

If the stakes are high enough, I think you have to do focus and mock trial research in your case. Not doing so means not doing as good a job as you can do. 

If mock jurors overwhelmingly back you in mock, can confidently make a much stronger demand?

That’s another great thing about it. At first in this case, less money was offered. If that mock research turned out differently, I probably would have taken the lesser amount.
When the stakes are as high as they were, I think you have to get that mock research done, so you can help your client make a good decision, because ultimately the client is the one who decides whether or not to accept an offer. I can recommend for or against, but they ultimately have to do it.

When you have a piece of land, you get an appraisal. Well, we are the appraisers of these cases. And if you want to be able to do a good job for your client, and tell them what it’s “worth,” you have to do the research.

In this case in particular and other cases in general, what are you looking for in mock trials and focus groups?

You always go in, in the back of your mind, hoping to get a great result.

The reality is that we do not want to put on a case that is most favorable to us in a mock, meaning, for example, most of the time, at the time you do the mock, most of the evidentiary issues are not resolved. You hope to get some evidence in, or keep out evidence that’s harmful.

When we did mock in this case, the stuff we wanted left out, we let it in. We wanted to see how a jury was affected by this stuff.

For instance, when I saw that jurors in this case weren’t particularly interested in taking comparative negligence on, it took a lot of concern out of the situation. That helps you focus on how you’re going to prepare for trial.

For somebody who has never done a focus group, it seems like a big task. In reality, how much additional work is it?

It is certainly much less work than preparing for and conducting a significant jury trial, for a multitude of reasons.

We did what we refer to as “clopening,” which is half opening statement, half closing argument. You’re essentially doing a little bit of both all at once.

On a scale of 1 to 10, where 10 is most strongly agree, rate the statement, “Focus and mock trial is critically important to a major case.”

10. You cannot afford not to prepare. I’ve done them and learned that the offer is probably more than I’m likely to get at trial. I’ve spent the money and I’m glad I learned that. Or you could have the inverse occur and realize you should not take less than everything that is available.

When the stakes are that high, you have to do everything you can in order to find that out. 

This is really a road map to success, isn’t it?

Without question, focus research helps you conduct the actual trial at a level that is much higher than you ever could have done just walking into the courtroom for the first time and giving your opening and examining witnesses just based upon what you think is going to be most effective.

When you have the opportunity to conduct that exercise, and learn from a sufficient number of people what moved the needle for them, it allows you to tighten up everything you do from jury selection to closing arguments. It allows you to focus on what is important and what is not, whether it is something that may be helpful or harmful to your case.


Mark Fierro began his career as a reporter/anchor at KLAS-TV, the CBS television station in Las Vegas. He worked at the U.S. House of Representatives in Washington, D.C. He served as communications consultant on IPO road shows on Wall Street. He provided litigation support for the Michael Jackson death trial. He is president of Fierro Communications, Inc., and author of several books including “Road Rage: The Senseless Murder of Tammy Meyers.” He has made numerous appearances on national TV news programs.

Read Our Digital Issues

Like Us On Facebook

 

2016.0426 VegasLegal-Fall16-TJM-JC-TH-TH.indd

In Response To The Resurrection Of The American Trial Lawyer

Jury

In Response To The Resurrection Of The American Trial Lawyer:

The Disappearance Of The Civil Jury Trial

By Robert T. Eglet, Esq.

The article I wrote for Vegas Legal Magazine’s spring issue—“Death of the American Trial Lawyer”—resulted in a surprising yet encouraging response from readers, both locally and across the country. The publishers informed me that the article has been read online by more than 200,000 viewers, and I have received hundreds of emails from readers requesting more information about the danger that the disappearance of the civil jury trial poses to our justice system. More importantly, readers are asking if anything can be done to reverse this alarming trend.

Death of the American Trial Lawyer

In “Death of the American Trial Lawyer,” I briefly discussed the importance of the civil jury trial to the American justice system and documented the steep decline in the ratio and absolute number of civil cases resolved by jury trial over the past 80 years. In the 1930s, 20 percent of all civil cases in both Nevada and in the federal courts were resolved by jury trial. Today, the average number of civil cases concluded by a jury’s verdict is a quarter of a percent, and in some states it is effectively zero percent.  I outlined the major causes of this decline as being Alternative Dispute Resolution (ADR), or what many legal scholars refer to as the privatization of the civil justice system; the exponential rise of litigation costs including out of control, and often unnecessary, pretrial discovery prompted by billable hour requirements; the adherence to a judicial philosophy that case settlement is better than trial, no matter the situation; the rise of case dismissals via summary judgment; federal pre-emption that guts an otherwise viable action; and, the biggest enemy of the American consumer: tort reform.

I suggested that one foreboding consequence of the threat of civil jury trial extinction is that experienced trial lawyers are quickly becoming relics of the past. The drastic reduction of civil jury trials, both in ratio and absolute number, has lead to a lack of understanding of the true settlement value of most cases. This, in turn, has led to a majority of cases settling for less than their true value, and resulting in injured victims losing hundreds of millions of dollars annually in lost compensation to which they are legally entitled. Further, the rapid decline of jury trials negatively effects our democratic form of government. The drastic reduction of civil jury trials ensures that a much smaller segment of the population has the opportunity to participate in jury service.  Jury service is the only opportunity most citizens have to directly effect government decisions.

In this article, I outline generally the history and importance of the civil jury trial to Americans, and identify some solutions to revive it.

History and Importance of the American Civil Jury Trial

The civil jury trial has deep roots in our country. The American colonists, governed by English law, believed that trial by jury was a fundamental right, and one necessary to ensure a government by the people, for the people. The right to a jury trial in the administration of justice was considered to be indispensable by our nation’s founders and non-negotiable by the leaders of the American revolution. They believed that the right to trial by jury could be traced back in an “unbroken line” to chapter 39 of the Magna Carta, issued in 1215, which stated: “No free man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”

England’s repeated attempts to restrict the right to a jury trial in the colonies was a major grievance leading to the Revolutionary War. In nearly every major document and speech delivered before the revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. Included in the grievances against King George III listed in the Declaration of Independence was: “[D]epriving us, in many cases, the benefits of trial by jury.”  The only other right eventually included in the Bill of Rights mentioned specifically in the Declaration of Independence was the prohibition against quartering troops.

The early state constitutional drafters considered the civil jury trial an important instrument for the protection of individual liberties. The Massachusetts Body of Liberties, enacted in 1641, was the first colonial charter to provide for civil and criminal jury trials by name. By contrast, this same chapter made no mention of free speech rights or freedom of the press, and secured freedom of religion for Christians only. The Bill of Rights in the 1776 Virginia constitution provides that: “[i]n controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” The constitution of Pennsylvania followed Virginia’s in affirming the right of trial by jury in civil cases: “[i]n controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be sacred.”  The 1776 constitution of North Carolina, stated: “[i]n all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of people, and ought to remain sacred and inviolable.” Similar language is found in the constitutions of Vermont in 1777; Massachusetts in 1780; and New Hampshire in 1784.

The right to jury trial in criminal cases was secured by the framers when they incorporated it directly into the main body of the U.S. Constitution.  However, they did not provide for the right to civil jury trial, or any of the other individual liberties listed in the Bill of Rights.  In fact, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial.  In 1791, during its first session, congress drafted the Bill of Rights, securing the right to civil jury trial in the 7th amendment.

The American system has always considered the civil jury a critical part of our democratic government because more than any other single institution, juries give citizens the opportunity to participate in government, which both educates and enhances their regard for the American system of justice. Jury service is the only place where average citizens can participate directly in government in a way that has a direct impact on events.

Civil jury verdicts are public, and they affect all interests of the community and represent the American idea of justice. Civil juries are often referred to as the “conscience of the community” and they stand as indispensable guardians over corporate negligence and corruption. Civil jury verdicts have led to significant improvements in the safety of consumer products, industrial machines and health care products. They have deterred arbitrary use of power by officials and employers, and the civil jury trial is often the only way for victims of civil rights violations to obtain justice. It is well recognized that product manufacturers, hospitals, pharmaceutical companies, and other defendants in personal injury actions have redesigned products; improved medical care; and have taken other steps to improve or save lives following jury trials and verdicts.

In 2008, my firm and I took on a case with the intent of making far-reaching changes in the pharmaceutical and medical fields. Over 100 Las Vegas residents were infected with hepatitis C as a result of faulty injection practices fueled by the drug companies’ increasing profits at any costs attitude. The drug companies knew the risk of hepatitis C transfer and notified the Federal Drug Administration (FDA) of such risks well before the Las Vegas outbreak; but to save money, packaged their drug in an unsafe and cheaper form. In 2010, the first of several Las Vegas civil jury trials ensued garnering a $505 million verdict for a headmaster and his wife of a prestigious local high school who contracted hepatitis C during an endoscopic procedure. The next verdict we obtained was for $183 million, and the verdict after that was obtained by another firm for just over $100 million. Finally, during the last trial where we were convinced the verdict would be over $1 billion, (and we believe the defense attorneys were equally convinced), the cases were finally settled.

Those verdicts allowed the victims that my firm represented to receive the compensation they deserved. They also allowed other firms in our jurisdiction to obtain settlements higher than they would have, had these trials not occurred.  It is well known in our community that the cases that settled early, before these verdicts, settled for significantly less.  More importantly, injection practices were changed nationwide, in an attempt to prevent this type of outbreak from occurring, as it had on multiple prior occasions in other parts of the United States and around the world. I am confident these practices would not have changed without these jury trials and verdicts.

As you can see, the civil jury trial is more than a process for bringing a grievance to resolution. It is a pillar of our democracy necessary for the protection of individuals against tyranny, repression, and mayhem, and to deter such injustices in the future.  Jurors do their duty with no further ambition that their decisions could result in some future advantage for themselves. Jurors come to court, deliberate, and go back to their homes and work better off for their service. In other words, the civil jury trial system cannot be bought. It is our purest form of justice.

Jurors differ from judges because of the values they bring to cases and the freedom they have to apply those values. And as former chief justice William Rehnquist aptly noted, the right to civil jury trial was guaranteed by our Bill of Rights “precisely because the framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign’s judges.”

In his book We The Judges, the late U.S. Supreme Court Justice William Douglas wrote:

A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of 12 who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized.  t is the one governmental agency that has no ambition…it is as human as the people who make it up. It is sometimes the victim of passions. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.

Juries have more latitude than judges to make difficult and unpopular decisions. They deliberate in secret, they don’t have to explain their decisions, and they are typically protected by rules which limit post-verdict interviews. Studies show that jurors uniformly rate both their experience and the jury system highly while citing their service as being a major and moving experience in their lives. While prospective jurors often grumble over their duty to serve, I am always amazed at how proud and grateful they are for having served.

When disputes are resolved without trial there is no public record, which allows wrongdoers to suppress information about dangerous products, defective drugs, negligent professionals, and other wrongdoing. The United States Supreme Court and constitutional scholars have repeatedly pointed out the right to civil jury trial was embraced by our nation’s founders not because juries were the most economical way of resolving disputes, but, far more fundamentally, because “in important instances…[A] jury would reach a result that the judge either could not or would not reach.”  And as one commentator observed, “bringing the law to the people may not make it more just in all cases, but it will make it the law of the people, which is what it should be in a constitutional democracy.”

Thomas Jefferson recognized that a jury of our peers is the most effective check against state power and has been a cornerstone in our judicial system since our nation’s birth.  It legitimizes the law by providing opportunities for citizens to validate civil statutes and common law, and to apply them to the facts of specific trials creating a common sense of justice. Further, the United States Supreme Court has recognized in numerous decisions that the primary function of the jury system is to provide a check on official or arbitrary power.

A Call To Action

The American public has remained largely silent over the disappearance of the civil jury trial.  Do they not know they have this right, the importance of this right, or that it is presently on the endangered rights list? Tragically, there is scant public education about the history and importance of the civil jury trial to our democratic principals.  Notwithstanding the historic and current importance of the civil jury trial, it is one of the least understood features of our judicial system.

Legal education programs teach little about the civil jury institution. Even organizations committed to protecting the Bill of Rights exalt limited public support for our right to civil jury trials. Outside of the members of the bar, there are no programs or efforts to educate the public about the history and importance of the vanishing civil jury that I could find. The American public needs to be informed about this fundamental right and how it significantly enhances their ability to hold accountable institutions and individuals who misuse their power over other people.

In 2014, of the 29 states that reported, the ratio of civil jury trials to civil disposition ranged from a low of 0.06 percent to a high of only 0.55 percent. Today, the average ratio is 0.25 percent and the downward spiral is continuing toward zero. The decline of the civil jury trial should be a call to action for all of us who are concerned about the health of our democracy and the preservation of the 7th amendment.


Eglet


Potential Solutions

  1. Full-Court Funding

Critical to resurrecting the American trial lawyer and the civil jury trial is ensuring that our courts are fully funded at both the federal and state levels. Court funding issues have clearly impacted and contributed to the decline of civil jury trials. We need more courtrooms and judges to preside over cases. While the number of jury trials has declined, the courts’ caseloads have significantly increased placing pressure on trial judges to move cases, resulting in those same judges pressuring litigants and their lawyers to resolve their disputes outside the courtroom and without a jury.

  1. Removing All Penalties for Exercising the Right to Jury Trial

If a party loses a jury trial, courts and legislation often impose penalties for such loss, including paying the opposing parties’ attorneys fees and costs. Any penalty imposed after a jury trial that would not be imposed as a result of a settlement of the case is a not-so-subtle infringement of our 7th amendment liberty. This applies to any loser-pay system, including the current offer of judgment rules provided for in the federal rules of civil procedure and in most state civil procedure rules or statutes.

Further, there should be no additional fee for a litigant to request a trial by jury.  In many jurisdictions, including Nevada, a fee is required to request a jury trial. In my view, there should never be any financial cost to exercise a constitutional liberty.

  1. Training and Mentoring Programs

Experienced trial lawyers have a responsibility to raise the next generation of trial lawyers.  As a result of the mentoring I received as a young lawyer from Mitch Cobeaga, Franny Forsman and Rex Jemison, I have been able to achieve the results I have as a trial lawyer. I believe my partner, Dennis Prince, would agree that his successes were launched, in part, because of our mentoring relationship over the years.

My first job as a lawyer was with a large defense firm. This was a wise route for any new lawyer that wanted to try cases, because at that time, insurance companies and institutional clients appreciated that to have an ongoing pool of experienced trial lawyers from which to chose to defend their interests, they needed to pay for the legal training of the young lawyers. They understood that for young lawyers to get the appropriate training, they needed to permit their defense firms to have both experienced lawyers and a young lawyers attend trials and pay for their time. This provided defense firms with the ability to train and mentor their associates into experienced trial lawyers.

Somewhere along the way, insurance companies and institutional clients lost that foresight. Now, they refuse to pay for young, inexperienced lawyers to attend trial with experienced trial lawyers, eliminating their law firms’ ability to train the next generation of defense trial lawyers. Many large firms are not hiring lawyers right out of law school any longer, and instead, are making lateral hires of more experienced lawyers, compounding the problem of young lawyers not gaining any meaningful trial experience.

A number of states, including Nevada, have implemented mandatory mentoring programs because more and more new lawyers are not finding jobs with law firms that are able to provide them mentoring. Many new lawyers are being forced to go into private practice on their own (or with other recent graduates) with no experience.  This, too, is compounding the problem of young lawyers obtaining trial experience.  While these mentoring programs are a good start, they are not providing adequate training for new trial lawyers.

The answer may lie in the development of mentoring programs where the lawyer/students are assigned actual cases to litigate with more experienced trial lawyers. Florida has a program of this nature called Lawyers Advising Lawyers (LAL)— formerly SCOPE (Seek Counsel of Professional Experience). LAL provides assistance when a young attorney confronts a problem that is unusual, or when they are in an area of law unfamiliar to them. LAL offers quick access by telephone to an attorney who has experience with and knowledge of the particular problem or area without charge.

Expounding upon this mentoring idea, I would suggest trial lawyers allow access to their trials to young, aspiring trial attorneys. A young lawyer might agree to assist in a trial to obtain the otherwise unobtainable trial experience at no out-of-pocket cost to the trial attorney. These cases could be managed at a low cost, if the experienced trial lawyers were willing to spend time teaching and mentoring inexperienced lawyers in exchange for these lawyers providing free legal work in their preparation and trial of cases.  I understand the short-term financial burden this places on the young, aspiring lawyer who is working without pay; however, the experience obtained would set them up for their professional lifetime.

  1. Limiting Discovery

Discovery costs have become a substantial roadblock to civil cases being resolved by a jury. Nearly all information is now stored on computers, which has made discovery (or rather “e-discovery”), in many cases, prohibitively expensive. This is largely caused by the tactic of institutional clients engaging in “digital document dumps.”  This tactic is routinely used when injured victims or their lawyers don’t have the resources—or the case does not warrant the resources—to mine these “dumps” for the kernels of information relevant to the case. Trial judges and discovery commissioners must have the discretion, and be willing, to limit this type of discovery and to prevent parties from engaging in abusive discovery tactics. Our federal and states’ supreme courts should consider amending their discovery rules to consider both the resources of the parties and the issues at stake, as well how the digital age has changed discovery, in determining the methods and scope of discovery.

  1. Limiting Experts

Over the last two decades, experts have been routinely and unnecessarily used in lower value cases. This is now a common tactic used by insurance companies and institutional parties when they face lawsuits filed by ordinary people—in order to drive them to settle their cases for much less than their true value—because the plaintiff or his or her lawyer cannot afford to hire superfluous rebuttal experts. Trial courts and discovery commissioners should have the discretion and authority to limit or not permit expert witnesses in these smaller cases.

  1. Expanding the Short-Trial Program

The short-trial program has proved to be quite effective in disposing of smaller cases in an efficient and more cost-effective manner. Short trials limit the trial time typically to one day and allocate specific time parameters to each party to present their case. This forces the parties to be more efficient by thinking carefully about how to allocate their limited time most effectively. Consideration should be given to expanding this program to include short trials with three- and five-day limitations. That would capture more cases that parties are not willing or able to try in one day, but would be able or willing to try with three-day or five-day time limitations.

I would argue that the number of jurors in the three- and five-day short trials should be increased to at least six, if not eight.  Every study done on this issue shows that the larger the jury (up to 12), the better the decisions. Of course, limiting discovery and the use of experts must be part of this program in order to reverse the decline of civil jury trials.  Understand, however, there are cases that are just not appropriate for the short-trial program. The higher the case value, the less likely you should enter into a short-trial as a jury may equate less time addressing the case with a lower verdict.

  1. Utilizing Justice Court

During the 2015 session, Nevada’s state legislature increased the jurisdictional limit of justice court to $15,000. Nevada’s’ mandatory arbitration program does not apply to cases filed in justice court.  Therefore, a case with a value of $15,000 or less can be tried in justice court without going through arbitration and then filing a trial de novo, which is required by the rules governing district court. Further, the award of costs and attorney fees for the prevailing party from a civil jury trial are mandatory in justice court.   While, as I delineated above, I do not favor loser-pay sanctions, they do apply in justice court cases giving plaintiffs an incentive to file in justice court.

  1. Collaboration and Specialization

Although this sounds like self-promotion, I truly believe there is no better way to practice than to collaborate with those you believe to be the best specialized trial lawyers in your jurisdiction. Not only will this give you the backing you need when negotiating your case, but it also gives you the resources and experience of those with whom you associated.

Eglet Prince is built on the concepts of specialization and collaboration. We limit our practice to personal injury, product defect, wrongful death, and insurance bad faith so that we can be the most experienced in those areas. We collaborate with other law firms in the handling of significant injury cases. In some instances, our collaboration is a result of a Goliath-type defense mounted by the other side. More often it results from lawyers seeking us out that want an extra advantage. We are a trial firm that handles complex cases that most other personal injury firms do not have the resources, time or experience to prepare for or try. Collaborating allows the full value of the case to be obtained for the clients. Over 90 percent  of Eglet Prince cases are referred to us from solo lawyers and law firms, both locally and from around the world, who ultimately receive a greater net fee by bringing us into the case. We also have collaboration agreements with law firms who we refer smaller less complex cases, and mentor and assist them when necessary in their trials or trial preparation.

There exists an opportunity for several young energetic lawyers or law firms to create collaborative agreements with law firms who can not or will not employ the resources necessary to try these small and mid level cases before juries. In my opinion, it is the only way insurance companies will begin settling these smaller and mid level cases for their actual value.  If we work as a team in our legal community, the value of our clients’ cases will be reflected in the offers the insurance companies eventually make.

  1. Eradicating the Disease of Tort Reform

How many times will we hear the insurance industry “cry wolf” until the truth is revealed to the American public? The cries are always the same:

“Americans are lawsuit happy.”

“Frivolous lawsuits are clogging our courts.”

“Juries can’t be trusted because they routinely return outrageous verdicts that far outweigh the actual damages.”

“Medical malpractice lawsuits drive up healthcare costs for everyone.”

“Malpractice lawsuits are forcing doctors out of practice or to leave our state for states with damages caps.”

“Malpractice lawsuits drive up a doctors malpractice insurance rates, and caps will lower their rates.”’

All of these myths are propaganda invented by big business and the insurance industry, both of which want to scare Americans into relinquishing their 7th amendment liberty.

The infamous McDonald’s hot coffee case is the first example that proponents of tort reform love to cite.

“The lady goes through a fast food restaurant, puts coffee in her lap, burns her legs, and sues and gets a big settlement. That in of itself is enough to tell you why we need to have tort reform,” quoting former U.S. Congressman, Republican presidential candidate and present Governor of Ohio, John Kasich, while he was a member of congress.

The actual facts bear reciting:

  1. Stella Liebeck suffered third-degree burns to her inner thighs, genitalia and groin and was hospitalized for eight days requiring numerous skin grafts.
  2. LIebeck was a passenger in the vehicle being driven by her grandson.
  3. Liebeck’s grandson pulled over and stopped his vehicle so Liebeck could add cream and sugar to her coffee.
  4. The Ford Probe of LIebeck’s grandson had no cup holders, so LIebeck placed the cup between her legs.
  5. While trying to get the lid off, the coffee spilled on her sweatpants, immediately soaking through to her skin.
  6. LIebeck went into shock and her grandson rushed her to the emergency room.
  7. Prior to this, McDonald’s received more than 700 complaints of serious burns caused by their coffee being served too hot.
  8. McDonald’s policy was to serve coffee at a temperature between 195 and 200 degrees, despite knowing that temperature would cause third-degree burns in seven seconds or less.
  9. Liebeck tried to settle the matter with McDonald’s before hiring a lawyer for merely her medical expenses of less than $20,000, an offer vehemently rejected.
  10. An independent mediator recommended McDonald’s settle the case for $225,000, which McDonald’s rejected.
  11. Liebeck required 2 more years of additional medical treatment which greatly increased her medical expenses.
  12. The jury awarded Stella $200,000 for her compensatory damages, but found her 20 percent comparatively negligent. Thus, reducing the award to $160,000.
  13. The jury assessed punitive damages against McDonald’s of $2.7 million, which was equal to roughly two days of McDonald’s coffee sales profits. However, the trial judge reduced this to $480,000, but the judge found that assessing punitive damages against McDonald’s was appropriate to punish and deter the company for its wanton conduct and to send a clear message to McDonald’s that corrective measures were needed.
  14. McDonald’s appealed and the case settled for an undisclosed amount widely reported to be between $400,000 and $600,000.

When the true facts of the case are reported, most people recognize that this case was neither frivolous, nor was the verdict excessive.

The playbook for tort reform was quite simple. Major domestic and foreign corporations donate vast sums of money to the U.S. Chamber of Commerce and other lobbying groups, and Karl Rove and others direct that money into to the campaign coffers of politicians wiling to back tort reform. However, in 1995 President Bill Clinton vetoed a tort reform bill that favored big business, but would have devastated the American consumer and eroded our 7th amendment rights. Rove and his cronies responded by taking tort reform to state legislatures. The chamber and big business began funding state political races and running ads under the names of associations disguised to look like groups of “concerned” citizens.  The ads hammered into the American psyche the lie that frivolous lawsuits were ruining our economy and our country, using the distorted truth about the McDonald’s hot coffee case and other cases they created out of thin air.

Numerous states passed tort reform bills stripping the public of its 7th amendment rights.  When state supreme courts started finding many of these tort reform bills unconstitutional because they infringed upon a citizen’s right to trial by jury, Rove and company began a new strategy of targeting state supreme court judges in their re-election campaigns who had upheld the 7th amendment liberty, replacing them with judges who were willing to turn a blind eye to the unconstitutional tort reform legislation passed by the state.

The fact is, Americans do not have a frivolous lawsuit problem. The Rand Institute for Civil Justice, recognized as one of the most independent and respected think tanks in the country, found that only 10 percent of people injured by the actions of others seek compensation and only 2 percent of them file lawsuits. Since 1991, tort cases have made up only 5 percent of all civil cases filed. Additional reports have proved that while our population has grown, personal injury lawsuits have decreased by more than 25 percent between 1999 and 2008 alone, and they represent only 1.3 percet of all civil dispositions. Study after study show that frivolous lawsuits are rare, and nearly non-existent. Even Victor Schwartz, a historically huge proponent of tort reform, admitted: “There is no question that it is very rare that frivolous suits are brought against doctors.  They are too expensive to bring.”

Using a campaign of deception, tort-reform advocates have turned injured victims into greedy liars and their lawyers into unscrupulous, opportunistic parasites. What big business and the insurance industry doesn’t tell you is that multimillion-dollar verdicts are rare. The Bureau of Justice Statistics found that the median plaintiff verdict is well under $50,000, and only 5 percent of plaintiff verdicts are a million dollars or more.

Healthcare malpractice settlements and verdicts make up only 0.3 percent of national healthcare costs. The National Association of Insurance Commissioners agrees that the total amount of money spent annually defending medical malpractice claims and compensating victims is $7.1 billion. What is actually driving healthcare costs to rise is preventable medical errors, which account for an additional annual cost of $29 billion of the $2.2 trillion of healthcare spending.

Over the past two decades, the number of licensed physicians has significantly increased and is at an all-time high. The number of practicing physicians per number of people in our country has never been higher. From 1990 to 2010, the number of physicians increased by 40 percent, while the increase in the U.S. population grew by only 18 percent. The number of physicians in every state has increased, and in most states the increase in physicians has either matched or outpaced population growth.  There is no data to support the claim that capping medical malpractice damages helps to attract or keep doctors. In reality, there are many more doctors practicing in states without damages caps than in those with caps.

There is no evidence that medical malpractice lawsuits drive up malpractice premiums.  The National Bureau of Economic Research found that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Further, Americans for Insurance Reform found that “rate increases were rather driven by the economic cycle of the insurance industry, declining interest rates, and investments.” And, damage caps do not lower premium rates for physicians. Insurance companies pay less money for malpractice clams in states with damages caps, but they do not pass those savings on to doctors by reducing their premiums.  After the state of Texas passed legislation capping damages in healthcare malpractice cases in 2003, the nation’s largest medical malpractice carrier told the Texas Insurance Commissioner that caps had a minimal impact on premium rates, while the company announced a 19 percent increase in physicians’ malpractice insurance rates. In fact, the American Insurance Association has acknowledged that, “we have not promised price reductions with tort reform.”

Tort reform is a fraud against the American people. It benefits neither the public, nor healthcare providers. It simply increases profits for insurance companies and insulates domestic and foreign corporations from compensating people whom they have caused harm. The fraud must be exposed, and all tort reform legislation repealed.

When a person who is injured by the negligence or defective product of another takes their case to trial, they are engaging in an extraordinarily heroic act. To file a lawsuit and litigate through trial is not a simple undertaking. The plaintiff will be attacked by the defendant in all sorts of ways, and the case will likely drag on for years. In the meantime, their life will be put on hold.  The willingness to go to trial to gain justice is heroic. This truth must be made known to our citizenry. The public must be made to understand that when a person wins a civil case, they win it for all of us, as well as gaining justice for themselves.

10. Predictive Analytics

“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” — Justice Oliver Wendell Holmes Jr.

Predictive analytics is technology that learns from experience and from data to predict the outcome and/or behavior of individuals in order to drive better outcomes or better decisions. It is essentially “machine learning,” which is exponentially getting faster, better and more efficient. Computers can now look at tendencies and trends and can actually learn. By leveraging the quantitative strength of computers, lawyers can more accurately forecast how events will play out in a case and allow lawyers and their clients to avoid costly mistakes, get a better vision of the strengths and weaknesses of a case, and increase the odds of obtaining a favorable outcome.

Predictive analytics uses advanced machine learning algorithms and proven rigorous statistical methods to forecast the probabilities of various outcomes. The probability forecasts produced can aid settlement negotiations and decisions about trial.  Potentially, this could save billions of dollars in settlement errors and mitigate the risks of trial. Statistics show an estimated 60 percent of legal cases have settlement value errors.  As I noted earlier, 99.75 percent of civil cases are settled. Jury trials today are avoided at all cost due to the perceived unpredictability of a jury.

The practice of law includes prediction. Lawyers predictively answer client questions daily such as, “What are the odds of winning this case, and how much do you think this will cost me?”  Even Justice Holmes envisioned over a century ago that “the number-crunching masters of economics” will trump the vast majority of lawyers who still rely solely on experience, historical case information, and intuition to predict the outcome of a case.  Even the most exceptional lawyers are inherently limited in their capacity to retain and process the information necessary to make well-informed judgments.  Computers, while lacking the ability to frame interesting questions or draw conclusions as lawyers, are far better at storing, processing, and summarizing large volumes of information.

The technological advancement in computing power and data science has ushered in a new era…the era of Big Data. Google, Facebook, IBM, and countless other technology companies, use these new capabilities to market products and ideas with a level of effectiveness never before seen. Predictive analytics is now universally accepted and used widely by many industries to predict outcomes and make better decisions, and was a major factor in predicting the last presidential race.  It is imperative that trial lawyers catch up to this data-centric approach found in almost every other industry.  The common practice of heavy weighting historical trial outcomes fails to adequately capture present conditions, hampering the accuracy of its predictions. Predictive analytics, unlike historical performance data commonly used for this purpose, takes into account current public sentiment. Real-time predictive analytics provides a great advantage, creating a tool that allows trial lawyers to test the core case arguments identified during discovery against a series of juries, representative of the available jury pool in the location where the trial will take place. A resulting predictive model can be used to inform the settlement negotiations and aid in the decision of moving forward to trial.  When cases proceed to trial, the resulting model can be used during jury selection, to insure maximum probabilities of a favorable decision and the largest possible verdict.

When Big Data supplements a community values and beliefs survey contained within a typical jury questionnaire, more information about a juror’s community is available to the lawyers. This increase in information, in turn, provides trial lawyers with more information about what juror traits are beneficial. Research shows that an individual’s online presence can predict that individual’s personality, and Big Data provides more data points on how to determine which individual jurors should or should not be selected. Once the parties determine a community’s attitudes and values, trial lawyers can determine what qualities and traits are desirable in jurors within that community.  Trial lawyers can then combine these qualities and traits into so-called “bad juror” or “good juror” profiles to create “persona jurors.”

If we as trial lawyers can pool our data and keep a collective bank of case information and trial and settlement outcomes, the better and more accurate all outcomes become. Data is always predictive, and as the data we collect grows, we can put that into a predictive model to extract the “golden egg,” or prediction model, that will be the key to making better decisions. The more data we collect and input, the higher the statistical significance the outcomes will be and the more we can apply this to building our trial stories, and forecasting trial outcomes with more accuracy.

Intuitive and experiential expertise is losing out to number crunching. In fact, that competition has already been lost. Quantitative analysis has been openly embraced in virtually every major business sector…except law. Shortly, there will be a seismic shift in the legal profession. The smartest, savviest lawyers are now supplementing their practice experience and intuition with insights obtained from big data to best inform their judgment. Predictive analytics and data-driven strategies will be paramount to the legal industry of the not so distant future. Technology that leverages legal data will move the practice of law forward in new directions. There are more tools than ever to facilitate this paradigm shift.  Big data and predictive analytics can be used by trial lawyers to improve settlement evaluations, fine-tune trial stories, and make sound decisions of whether to settle or take a case to trial.

For any of you “Trumpsters” who haven’t read a book or current events journal in 30 years, and get all of your information from watching “the shows” and movies, I’m talking about “Moneyballing” trial practice.

The Beginning?

Going back is not an option. Moving forward is always the only path. Professionals, just like people, who live in the past and long for the so-called good old days, are already dead. They just don’t know it yet.

It has been nearly 30 years since I walked into a courtroom for the first time to try a case. Yesterday’s art and science of trial work is as extinct as the Yellow Pages.  When I began trying cases, my entire trial presentation was hand written on yellow legal pads.  My demonstrative exhibits were blow-ups glued to white cardboard.  All letters, legal briefs and pleadings were dictated into hand-held mini cassette recorders and the tapes were transcribed by legal secretaries. I did all my legal research in an actual library with real books. We had to actually file hard copies of our pleadings at the courthouse and physically serve them on opposing counsel. Today, my firm uses no paper, except when the trial courts makes us present a set of exhibits on paper for their records.  We have no legal secretaries, only paralegals. All of our lawyers do all their legal research from their computers and type their own letters (or more often, emails), legal briefs and pleadings. We take nearly all out-of-town depositions from the comfort of our officers or conference rooms using digital conferencing. Trials are prepared and presented with laptop computers, iPads and massive digital monitors, using trial presentation software and applications…many of which we have developed within our firm. Instead of legal secretaries, file clerks and runners, we employ trial presentation and animation designers, software programmers and e-discovery miners.

Trying to go back is like wearing a 30-year-old suit that looked good when you were 27.  It doesn’t fit, the fabric sucks, and you will never look 27 again, so go buy a new suit that fits the body you have today. We all need to adapt to the present and anticipate our future circumstances. We must re-think the way we prepare and try cases, as well as how we manage the business of law, if we want to stay relevant and survive the future of trial practice.

I believe in the jury trial. I define who I am as a “trial lawyer.”  But, I also understand that in order to resurrect “The American Trial Lawyer,” we must possess not only the will to try more cases, but the willingness to change the way we try them.


Robert Eglet has tried more than 120 civil jury trials to verdict, including some of the largest personal injury verdicts in the country in 2007, 2010, 2011 and 2013. Eglet was named National Trial Lawyer of the Year in 2013 by the National Trial Lawyers Association and National Lawyer of the Year in 2010 by Lawyers USA. He has been honored twice by the Nevada Justice Association as Trial Lawyer of the Year (2005, 2012) and in 2013, Eglet received the National Thurgood Marshall Fighting for Justice Award. The National Law Journal has named Eglet’s firm as one the “12 Best Plaintiff’s Law Firms in the Country” and one of the “50 Best Trial Firms in America.”  Eglet lectures regularly on trial practice and innovation in the courtroom.\

CLINTON & TRUMP

 CLINTON & TRUMP:

BATTLE FOR THE PRESIDENCY IS

‘HUGE’

By Valerie Miller

TrumpAs the summer heat approached 110 degrees in the Las Vegas Valley, across the country in Cleveland the political temperature was perhaps even hotter. The Republican National Convention just had its roll call of the states, officially making New York billionaire and reality TV star Donald J. Trump the GOP’s 2016 presidential nominee.

There was a small disturbance by some so-called “Never Trump” GOP delegates on the first day of the mid-July event, and a widely booed non-endorsement from Trump’s chief GOP rival, Texas Senator Ted Cruz. But, for the most part, the nomination went smoothly. Many Republicans were excited, while some delegates were just resigned to support their party’s nominee. Others skipped the convention and used their opposition to Trump for personal fame…and, to milk it for television appearances.

But for many Americans, Trump’s formal nomination was both a surreal and a historic moment. For the very first time, a total newcomer to politics and government had taken the political world by storm and succeeded. Trump did not flame out, or drop out, as media commentators predicted—and as his 16 Republican primary opponents had hoped.

The last non-politician to be elected president of the United States was Dwight D. Eisenhower in 1952. That was more than 60 years ago. However, even that comparison doesn’t do justice to what Trump has achieved, says historian Michael Green, a professor at the University of Nevada, Las Vegas, and himself a Democrat.

“This is one that is keeping me up at night,” says Green of the 2016 election. “[Trump] has no political or governmental background, and has never held office. Eisenhower had commanded Allied forces in World War II.”

Green can’t help but be amazed by the reality star-turned-Republican nominee’s meteoric rise. “I never thought he would go through with it,” as many initially dismissed Trump “as the flavor of the moment.”

While Green says he would be “shocked” if Trump became president, he also concedes that many unpredictable things could alter this election cycle. “It could be anything from some major revelation about Hillary Clinton to a major terrorist attack.”

Democratic Backers:

Clinton is the Odds-On Favorite

Dan Hart, a longtime Democratic strategist who now lives and works in Las Vegas, thinks the odds are still favorable that Hillary Clinton will win both Nevada and the presidency come November. Though, he admits, Donald Trump is a serious threat to pull off an upset in the general election.

“Trump has so much popularity, and his message of it being a ‘rigged system’ has a resonance here,”’ Hart says of Nevada. “There is still high unemployment, and a lot of lost jobs.”

Hart, who worked back East on then-President Jimmy Carter’s re-election campaign in 1980, cautions against dismissing Trump as simply a reality-TV star. He recalls Carter being roundly defeated by a former actor— Republican Ronald Reagan—because of the global turmoil and domestic economic problems that plagued Carter’s presidency. Hostages were being held at the American Embassy in Tehran, Iran, and the U.S. economy was in bad shape in 1980.

In 2016, though, Hart sees a lot going in Clinton’s favor. “She has a strong message and [the endorsement of] Bernie Sanders will help her a lot,” he adds. Sanders, an independent senator from Vermont who ran as a Democratic Socialist, put up a battle in the primary. He finally endorsed Clinton in the summer, and hoped to bring some of his young supporters to Clinton’s side.

Still, just how many Sanders backers will flock to Clinton remains to be seen. In May, the Nevada State Democratic Convention in Las Vegas erupted into chaos at the end, when Sanders’ supporters tried to charge the stage, demanding a delegate recount. That forced the convention to abruptly end at the Paris-Las Vegas, and dozens of police had to be called in to keep the peace.

But Hart, who has worked on a pro-Clinton super PAC, also cites Clinton’s strong “ground game.” The former secretary of state is accessing President Barack Obama’s highly successful method of identifying potential voters and getting out the vote. Obama has also endorsed Clinton.

“It really comes down to that 5 percent of the incremental voters,” Hart explains. “Once you identify them, you have to get them to the polls.”

Chris Esposito, a partner of the political consulting group Dover Strategy Group, agrees that the country is so politically polarized that the battle is really for a small slice of the electorate: independent voters, or those who may switch from one party to another.

“The presidential races are really decided by people who are nonpartisans,” Esposito notes. “These people don’t really pay attention until October. These are people who sporadically vote or who have never voted.”

Polls have consistently shown Clinton with a large lead among women voters, while Trump leads with male voters. Esposito says that’s a great edge to have. “The presidential math shows that more women than men vote on Election Day.”

Trump’s Making History

Despite Trump’s historic achievement, it is overshadowed by doubt about his chances against the Democrats. He has enormous unfavorable numbers, and normally, that would be enough to torpedo a candidate’s electability. But this is no normal election. His Democratic opponent—the former secretary of state, New York senator and First Lady Hillary Rodham Clinton—has her own problems.

The wife of former President Bill Clinton has struggled with her own unpopularity and questions about her trustworthiness. Those concerns were only heightened in July, when FBI Director James Comey announced he was not going to recommend indicting Hillary Clinton…yet laid out the case against her use of a private email server to send classified information while she was secretary of state. Comey’s comments became the subject of Republican attacks, and fueled Trump’s “Crooked Hillary” storyline.

Trump is huge in Nevada. He won the Nevada Caucus by a landslide in February, and local radio personality and political commentator Alan Stock is not the least bit surprised. Stock, who is backing Trump, said the very things that make Trump so popular also draw the harsh criticism.

“Trump brings out a lot of emotion. People have been attacking him because of that strong emotion. But a lot of people like the things he says, and they don’t want him to stop being himself,” he explains. “So, you are damned if you do, and damned if you don’t.”

How Did We Get Here?

More than a year ago, Donald Trump took the now-famous ride down the escalator at Trump Towers in New York, with his wife Melania, and announced he was running for president of the United States. The billionaire businessman then proceeded to make politically charged remarks about the crimes committed by some illegal Mexican immigrants, to illustrate why he felt the country needed more southern border security. Trump promised to “build a wall” on the Mexican border. Media pundits pronounced the Trump candidacy dead on arrival after the shocking speech.

Those remarks resulted in Trump being labeled a “racist” by many in the mainstream media. Sponsors fled anything connected to the controversial candidate. Many in the Hispanic community were offended. Businesses did not want to lose customers because of supporting Trump products. Denouncing Donald Trump seemed to replace baseball as the nation’s national pastime in the summer of 2015.

But, as it turns out, only certain factions in the country were outraged by Trump’s comments on illegal immigration. His support grew among his base… “a base” of people who had lost jobs, lost money and were rapidly losing their place in America’s shrinking middle class. In essence, they had lost hope.

“People are glomming onto him because of jobs,” Stock says.

Las Vegan Wayne Allyn Root, an early Trump supporter, author and radio personality, says Clinton has plenty of her own problems. Those issues include the recently concluded House committee investigation into the 2012 deaths of four Americans in Benghazi, during her tenure as secretary of state. That said, Root thinks the issues that affect people’s everyday lives are ones to emphasize.

“I think the economy, terrorism and illegal immigration matter more than Hillary’s history,” Root says. “Like it or not, the average voter just doesn’t understand the crimes of Hillary, from the Benghazi cover-up…to her email and perjury crimes.”

Trump’s populist stance on stopping unfair trade, and bringing jobs back from countries like Mexico and China, was a hit with voters—including many working-class white Democrats. Clinton, on the other hand, was overwhelmingly winning the support of African-Americans. She also had a big lead among Hispanic voters.

Supporters and defenders of Donald Trump were quick to point out that Trump was only referring to immigrants who were here illegally and committing crimes…not all Mexicans or Hispanics. They pointed to an immigration system they called “broken,” and a growing threat of terror from Islamic extremists groups. Groups, such as the Islamic State, which have warned they would infiltrate the refugee population fleeing violence in the Middle East.

“He has talked about building a wall, but it is metaphor for keeping the border secure,” Stock says. “Nobody has kept the borders secure since Eisenhower.”

Stock says Trump has been unfairly labeled a racist. “Trump is absolutely not a racist. He is not against Hispanics coming across the border legally. It is the illegals he is talking about. People say he is “anti-black,” but I challenge you to find something bad he said about [African-Americans].”

Surprisingly, a Pew Research Center Poll found that as many as 33 percent of Hispanics said they would vote for Trump in November. Root says Trump is a very likable person, and not a hater.

“He has energy. He’s a showman. He’s fun,” Root continues. ”I think all people of all races and cultures like that. White, black, Hispanic, Asian—Donald is entertaining and brilliant and unique in any language or culture!”

But Stock concedes that Trump has made a lot of people angry.

Democrats and progressive Liberals—including his chief rival, the 2016 Democratic Presidential Nominee Hillary Clinton—accused Trump of spreading hate and divisiveness. Along the way, what Trump commonly called “the dishonest media,” did countless hours of coverage of Trump’s comments about some Hispanic immigrants and women.

Trump was soon also labeled a “misogynist” after making comments about Fox News personality Megyn Kelly having “blood coming out of her wherever,” referring to her performance moderating the first GOP primary debate. Trump and Kelly had a public feud, which began after Trump accused Kelly of being unfair to him during that same debate. (Kelly had brought up insults Trump made—in another years-old feud between Trump and comedienne Rosie O’Donnell—to ask about his attitudes toward women.)

By the time the New York real estate developer took on the Fox News star, Trump was no stranger to controversy; however, a funny thing happened after his altercation with Kelly. Trump’s poll numbers went up. A large number of Republican voters sided with him.

Gale Tuzzolo, the political director at the Nevada AFL-CIO, thinks Trump has done too much damage to himself to recover in either Nevada or the general election. The AFL-CIO has endorsed Hillary Clinton, both nationally and in Nevada.

“We have many minority members, and immigration is a working man’s issue,” Tuzzolo says. “And a lot of women won’t go near him.”

Somewhere around 21 percent of Nevada’s 225,000 AFI-CIO members are Hispanic. The Culinary Union had also endorsed Clinton.

Root thinks Trump’s chances with women and minority groups are not as bad as the media makes it out to be.

“As far as how Trump can win over women or Latinos, or blacks or Asians or gays…it’s so simple. Trump needs to paint the picture of the worst economy in modern history,” Root says. “Obama is the first president in history to produce 8 straight years of economic growth under 3 percent. Obama is worse than even (then-President) Herbert Hoover in the depths of the Great Depression.”

So Many Feuds…

Trump has made some enemies but usually comes out on top. Prior to the Kelly feud, in the summer of 2015, Trump got drawn into another fight. Sen. John McCain, R-Ariz., had criticized Trump’s followers. The New York billionaire and presidential hopeful was bombastic in his response. Trump questioned whether McCain was truly a Vietnam War hero, even though McCain had spent years as a prisoner of war. Again, Trump’s candidacy was pronounced dead by the media. How could someone insult a true war hero, and the 2008 Republican presidential nominee, and expect to win the GOP primary? How could Trump ever recover with the all-important voting veterans?

Again, critics were dumbfounded, as “Teflon” Donald Trump increased his lead in the polls over Bush dynasty heir Jeb Bush, the extremely popular former Florida governor and the son and brother of former presidents. Trump also soundly defeated the candidate Time Magazine had called “the savior” of the Republican Party— first-term Florida Senator Marco Rubio. Also among the vanquished 2016’s GOP presidential hopefuls was Cruz, who was a conservative Tea Party favorite.

Then in December, following the deadly Islamic State-inspired terror attacks at a San Bernardino office Christmas party, Donald Trump drew widespread condemnation by proposing a temporary Trumpban on all Muslim immigration. While a chorus of mainstream media, liberal progressives, Democrats, and many Republican leaders condemned Trump’s remarks, again he rose in the polls. In fact, some polls taken after the terror attack found that a majority of Americans approved of Trump’s temporary ban idea. Now, Trump was also labeled an “Islamophobe” and a “xenophobe.”

Even after becoming the presumptive Republican presidential nominee in May, after handily beating Cruz in the conservative state of Indiana, Trump was not done courting controversy. After making comments about possible bias by a Hispanic-American judge in the lawsuit against Trump University, he took a hit in the national polls. The Trump campaign then revamped its leadership. That move, combined with the harsh public criticism of Clinton by the FBI’s Comey, turned the election into a close again race by convention time.

But just how much stock should we put in polls?

“The polls are just a snapshot in time,” Esposito says, adding a lot can change before the final ballots are cast.

Tuzzolo is confident Nevada will be blue in November. “I think Hillary will pull out front and come on strong.”

But Root says Americans know what is on the line in an age of global terror. “We need someone who understands it is madness to import hundreds of thousands of war-zone male Muslims into America. That is the definition of insanity and self-hatred. Trump is the answer to save America and to make America great again!”

So, who will win? No one knows. Amid the change that could be on the country’s horizon, however, one thing remains certain for the Silver State’s lifeblood, either way, says David Schwartz, director of the UNLV Center for Gaming Research.

“I don’t think there will much change to gaming policy.” 


Valerie Miller is an award-winning journalist based in Las Vegas. She can be reached at valeriemusicmagic@yahoo.com.