Category: Law

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How Boyd Is Shaping Nevada’s Legal Landscape

How Boyd Is Shaping Nevada’s Legal Landscape

By April Becker

VegasLegal_Spring2016_insidepages.inddI am often asked why I made the choice to practice law. The short answer is that in 1998, the William S. Boyd School of Law opened in Las Vegas. With my family and businesses entrenched in the Las Vegas Valley, the opportunity to attend law school was something I never thought would be a possibility: I simply could not leave Las Vegas. That all changed with the announcement that Boyd School of Law was enrolling.

Boyd’s opening not only changed my life, it changed the landscape of the legal community in Nevada. In order to fully understand the impact of the Boyd School of Law, a person has to look into the past void of legal education available. Before Boyd, no law school existed in Nevada. All practicing attorneys in the state were educated in schools that were as different as the locations where those schools were located. This resulted in a lack of continuity within the legal profession, especially when attorneys from other states were recruited to fill the legal needs of our city.

It was less than 20 years ago that Boyd School of Law started operations and began educating potential graduates in an abandoned elementary school across the street from the University of Nevada, Las Vegas campus. From this humble beginning, Boyd now boasts a reputation as a high-profile law school with a landmark campus ranked in the top-100 by U.S. News and World Report. Incredibly, in such a short period of time, Boyd graduates now account for a vast number of practicing attorneys and elected officials.

Quite frankly, being a Boyd graduate opens doors.

In surveying members of the legal profession that hire law school graduates, I have found that the hiring committees of the most prestigious law firms in Las Vegas look first to Boyd for quality graduates and new attorneys to hire. You will find Boyd graduates in almost all of Nevada’s prominent law firms. This is a tribute not only to Boyd School of Law’s rapid growth, but also the respect that the school has earned.

As a mother of three young children, attending law school presented very unique challenges for me; but I soon learned that the benefit of being a Boyd graduate created opportunities beyond any I could have ever imagined. It is amazing how many connections I have made as a graduate of Boyd School of Law. Those connections have created more business and added to the success of my law practice…and, have provided a valuable benefit to my clients. When confronted with difficult legal issues, it is never a problem to reach out and connect with other Boyd alumni for quick and accurate answers.

It is also a source of pride when I see the number of Boyd graduates that hold positions in public office and have become movers and shakers within Nevada politics. Currently, there are several members of the Nevada Legislature that graduated from Boyd School of Law. There are also a number of Boyd graduates seeking election in upcoming political races throughout the State. As a prediction, the number of Boyd graduates involved in Nevada politics will increase each year and with every election.

Las Vegas has always been a city of innovation and influence. Its growth has always centered on its citizens, as well as its unique location. As the city has grown, we have seen many new industries and businesses take root in Nevada, creating more opportunities for Boyd graduates. I feel very fortunate to have had the opportunity to graduate from such an outstanding institution. My law partner, my best friends and my network of attorneys are also all Boyd alumni. We all look forward to the continued growth and prestige of the William S. Boyd School of Law.


April L. Becker, Esq., is a partner at Becker Goodey, where she focuses primarily on commercial real estate and business matters, and providing individualized and committed representation to her clients from start to finish. 

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Meet The Incumbent

Meet The Incumbent

Judge Eric Johnson

They say cats have nine lives, but Judge Eric Johnson has reinvented himself within his profession so often, and with so many accomplishments, he might be one of those rare humans who has a little feline in him. Appointed as judge in May 2015 by Governor Brian Sandoval, before his seating on the bench last year this UNLV Boyd School of Law grad spent 32 years as an attorney in a head-spinning number of forms: with the U.S. Department of Justice as part of its employment program for honor law graduates; as a Special Attorney with the Organized Crime and Racketeering Section; and as Assistant U.S. States Attorney with the U.S. Attorney’s Office for the District of Nevada, where for a decade he led the Organized Crime Strike Force, and for 2 years he was chief of the entire crime division.

Johnson’s strong suits are varied and are concentrated in areas requiring a strong mind and voice to defend those who need it most: children; victims of mob and gang violence; guns. His intellect and ethics are matched by his compassion and desire to share knowledge with others, which has led him to be a regular instructor of trial advocacy and strategy at the Department of Justice’s National Advocacy Center, among other posts.

Below he shares with Vegas Legal Magazine what inspires him and drives him…and, he reveals that sometimes, a few tears are just what you need to know your defense is on the right track.

Vegas Legal Magazine: What does being a judge mean to you?

Judge Eric Johnson: Prior to my appointment to the bench last May, I was a prosecutor in Southern Nevada for almost 32 years with the U.S. Department of Justice and U.S. Attorney’s Office. I was fortunate to have the opportunity to prosecute and try a wide breath of cases involving domestic and international organized crime, RICO, murder and violent crimes, narcotics, money laundering, terrorism, corruption, and casino and complex fraud. I’d also spent the last 12 years with the U.S. Attorney’s Office as chief of the Strike Force, and then as chief of the Criminal Division for the state. This allowed me to work with local, state and federal law enforcement and prosecution offices to push initiatives to more effectively prosecute and keep guns out of the hands of violent criminals and drug traffickers, to target and prosecute the leadership and most violent members of street and prison gangs, and to successfully indict child exploitation cases involving child pornography and the trafficking of children for prostitution.

I feel that my experiences in dealing with complex litigation and working with victims and witnesses of crime—the diverse cultures of our community and federal, state and local agencies and businesses—trained me in applying the law, and exposed me to virtually all aspects of our community. My work has given me an understanding of different people and their motivations, fears and hopes; and, most importantly, it has shown me the importance of our justice system in our community.

In coming to the bench I wanted to use this background to make a positive impact in the state justice system and our community. I have been in Southern Nevada for the last 32 years and I have grown as an attorney as the community has grown in size and complexity. This is my home and community, and I believe through my position as a district court judge, I can make a meaningful contribution to our community.

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

JJ: That is a tough one to narrow down. The Herbie Blitzstein RICO (Racketeer Influenced and Corrupt Organizations) murder trial was the last of the old La Cosa Nostra mob cases in Las Vegas. Blitzstein was Tony “The Ant” Spilotro’s chief lieutenant before Spilotro was killed, and ultimately Blitzstein also met with an untimely death.

There was the U.S. v. Murray Wilson trial where the defendant brought in Russian mob members out of Brighton Beach in New York to do a credit marker scheme out of the old Dunes.  The father of our main witness in that case tried to extort money from the defendant to send his son to Israel for the trial, which definitely did not help the credibility of our witness.

Then there was the U.S. v. Chun Lok trial where members of a Chinese Triad set up a false shuffle cheat at three casinos, and our insider witness disappeared before trial. I remember a defense attorney commenting to me before trial that no one had won a cheating case without a cheating device or an insider. I found that gratifying when we eventually convicted everyone.

U.S. v. Bobby Mitchell was another trial where we proved that a boxing manager was able to fix fights to attempt to get his fighter a shot at a heavyweight title fight. The chairman of the Nevada State Athletic Commission testified that he thought the fight we charged was a good fight, but we proved to the jury it wasn’t, and ESPN featured the case on its program “Over the Line.”

But I would have to say the most memorable trial for me was U.S. v. Steve Homick. This case had everything. It involved a criminal organization that perpetrated at least three different murder episodes (including the first triple homicide in southern Nevada) and what became known as the “Ninja” or “Yom Kippur Murders” in southern California. In addition to the murders, the group was involved in the trafficking of narcotics and arson for profit. I and my co-counsel took over the case about one month before trial. The trial involved over 100 witnesses from numerous states and included wiretap evidence, surveillance testimony, handwriting comparison, and tool-marking forensics. Our witnesses ranged from a movie and television curator from I believe University of Southern California—who discussed the hair-combing habits of Kookie on the TV show 77 Sunset Strip to explain some code the defendants used in one of the murders—to a prior Penthouse magazine Pet of the Month who fortunately awoke at the start of an arson of the house where she was sleeping and got out the other 20 occupants before the building completely burned.

The trial started the Monday after Thanksgiving and went nonstop except for Christmas, Christmas Eve and New Year’s Day, through the end of January. The murders and crimes were horrific and I still remember three members of the jury crying as I gave my opening. For a trial attorney, that is a good start to a trial.

VLM: It feels somewhat impossible to top what you just explained, but if you can answer this, what’s been the most memorable case you’ve tried as a judge?

JJ: I have had two cases that I think were particularly memorable since coming on the bench just 11 months ago.

In State v. McClinton, the defendant was charged with sexually assaulting the 14-year-old daughter of his girlfriend. What made the case significant was that the defendant had been incarcerated for almost 6 years without a trial. The defendant had gone through nine attorneys during that time and kept demanding more continuances because his attorneys were not trying his case the way he believed the case should be tried. I said the attorney merry-go-round was over and he was going to trial as soon as possible. He was difficult to control and frequently made outbursts in court. I even had a closed-circuit video set up in a room separate from the court because I anticipated the defendant being belligerent in front of the jury. Ultimately, I talked the defendant through the trial with minimal issues. However, State v. Tiaffay was my most prominent trial. It was a first-degree murder trial I presided over within the first few months on the bench and it involved a firefighter who hired a homeless man to kill his estranged wife with a hammer. The trial lasted 2 weeks and included a penalty phase where both the victim’s and defendant’s family spoke. The homeless man also testified against the defendant. It was a very emotional trial. The jury took a long time deliberating, I think, because they had a hard time grasping why or how anyone could commit the crimes charged. The media heavily covered the case and CBS’s 48 Hours and NBC’s Dateline both did episodes about it.

VLM: Favorite and least favorite thing about being a judge.

JJ: I know my department staff would want me to say my most favorite thing about being a judge is working with them. It is true that I am blessed with a great support staff. My JEA Kelly came with me from the U.S. Attorney’s Office. I have a great courtroom clerk, Linda, who clerked for Judge Mosely. I have been lucky to find my law clerk, Josie; court recorder, Amber; and marshal, Bruce.

However, since coming on the bench, I have really appreciated the chance to look at new legal issues and research and write orders that the attorneys for the cases and the bar hopefully find valuable. Last year, I really appreciated the chance to consider the scope of the Nevada constitution’s provision allowing voter recall of public officials, and the application of the Nevada Supreme Court’s Hallmark decision to the current state of biomechanical engineering science.

As for my least favorite thing, I am always saddened when I sentence defendants to probation rather than prison in hopes that they will truly try to make changes in their lives, and a month or two later they are back before me on a probation violation. We can’t just send defendants to prison and hope they don’t commit new crimes when they get out. We have to find a way to break their dependence on drugs or deal with their lack of employment or mental health issues.  But when the defendant makes no effort to take these steps on their own and violates probation, I am always disappointed to be back having to consider the need to send them to prison.

VLM: Have you ever experienced a situation where you had to support a legal position that conflicted with your personal beliefs?

JJ: Fortunately, in my work as a prosecutor I was protecting the public from criminals and didn’t have to deal with defending people whose conduct I may have found personally abhorrent.  I have a real appreciation for many of the defense attorneys I have dealt with both as a prosecutor and a judge and the work they do defending their clients and assuring their clients’ rights are upheld regardless of who they may be or what they may have done. Our criminal justice system could not work, and the public would lose confidence in the decisions of our criminal courts, without these attorneys making sure the system works for everyone.

VLM: Has there ever been a situation that tested the limits of your patience? What is your advice for a situation like that?

JJ: Every now and then my patience is challenged when attorneys get into arguments between themselves in court. I cut off such conduct fast and make sure the attorneys talk to me and not fight with each other.  To calm emotions, I have added a message from Thomas Jefferson on each counsel’s tables, saying “If angry count to 10. If very angry count to 100.”

VegasLegal_Spring2016_insidepages.inddVLM: Do you have any attorney pet peeves?

JJ: I am unimpressed receiving courtesy binders of exhibits with minimal citation references in the briefs, and having attorneys expect me to find whatever they are referring to in the binders.  When I am in trial, I dislike attorneys spending considerable time eliciting testimony that has no purpose with proving their case or dealing with the defendant’s defenses. It is hard to see where attorneys may be going with a witness’ testimony, and I hate to do anything that may throw off an attorney’s strategy or considered trial plan. But I am annoyed when at the end of a trial, I look back and see large and time-consuming portions of testimony that clearly had no impact on a party’s trial strategy. Finally, too often I see attorneys filing (at the last minute) oppositions, replies and supplemental briefs, [sometimes] the night before the hearing or even the morning of.

VLM: What’s your best piece of advice for litigants or attorneys?

JJ: I think the judges you interview say this over and over, but it is the key to success in the courtroom, and that is “be prepared.” When I do continuing legal education (CLE) talks, I always tell attorneys to think about how they intend to get in every piece of evidence and be prepared if the other side just doesn’t let the evidence in. Attorneys always seem to be shocked when they offer something and the other side objects on foundation. Attorneys, even veterans, need to go back and look at the foundational questions. Attorneys frequently don’t know what or how to get in business records or impeach a witness with prior testimony. They often respond to objections saying, obviously, the evidence or testimony is accurate and they could establish foundation but they are trying to save time. I am all in favor of saving time, but foundation is foundation and parties need to be able to meet the requirements of the rules of evidence if the other side puts them to the task.

VLM: What is your passion outside of the law?

JJ: I have a passion for woodworking that I never seem to have time to realize. I regularly attend Colonial Williamsburg’s woodworking conference every year and have lots of good intentions but never get as far as I would like with projects. However, at my very first civil motions calendar I did appreciate an attorney asking to admit biomechanical evidence and arguing I should admit it because “the human body is like piece of oak with specific dimensions.”  I remember explaining that not all oak was alike and its strength depended on its grain, and any flaws and other factors.  I think the attorney wished by the end he had used another example.  My wife, Susan, and I also have taken up running in the last 5 years.  We have used this as an opportunity to go on trips together and separately to some places we probably would have never just gone to, such as Rio de Janeiro; Berlin; Tromsø, Norway; and Seoul, Korea.

VLM: Have to ask: What do you love most about Vegas?

JJ: I know you want me to say the shows or casinos or the fantastic natural features around us, but I really appreciate the breath of the law here. I have often told people that Las Vegas has the presence of a small city but with large city or international business and legal challenges. So much cash passes through our casinos, so many domestic and international travelers come through our airports and hotels. We have had to deal with the mob, and emerging organized crime organization. We have had to combat massive fraud, international money laundering, gangs, and violent crime. The diversity and significance of the legal work we do here is recognized with the growing presence of large domestic and international law firms operating here. But on a more personal level, I have loved our time with our kids and all the opportunities Southern Nevada has offered them through Green Valley High School and club sports programs.

Death Of The American Trial Lawyer

Death Of The American Trial Lawyer

Death Of The

American Trial Lawyer

By Robert Eglet

Thomas Jefferson stated, “I consider [trial by jury] as the only anchor ever yet imagined by man which a government can be held to the principles of its constitution.” Our country’s citizens have fought and died for our right to a trial by jury. The deprivation of the right to trial by jury was of such great concern to our founding fathers that it was specifically listed as one of the grievances against King George III in the Declaration of Independence as justification for going to war in 1775. The right to a jury trial in civil cases is guaranteed by the Seventh Amendment to the United States Constitution, and the constitutions of virtually every state in the union. The right to trial by jury in both criminal and civil cases is deeply ingrained in our sense of justice. But, while these constitutional rights have remained in place since 1791, how civil cases are resolved has and continues to dramatically change.

Chief Justice William Rehnquist wrote: “The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign… juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.”

Over 225 years ago, James Madison observed that, “trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” If we still believe this to be true, our liberty is in jeopardy. The civil jury trial is disappearing and appears to be rapidly approaching extinction, and with it will bring the extinction of the American trial lawyer.

THE NUMBERS

We have witnessed a near century-long decline in the ratio of civil cases resolved by trial, and a 30-year decline in the absolute number of civil jury trials in this country.  Since the mid 1930s, the proportion of civil cases concluded by jury trial has declined from 20 percent to well below 1 percent in both our state and federal trial courts. While that 20 percent was a minority of cases, it was nevertheless a substantial minority, and a significant amount of a civil practice was trial practice. By 1940, the ratio of civil cases resolved by jury trial had fallen to 15.2 percent. By 1972, it was only 9.1 percent. Two decades later, the percentage of civil cases being resolved through jury trial was only 3.5.  By 2002, the ratio of jury trials to civil case resolutions had decayed to a dismal 1.8 percent. In 2005, jury trials as a proportion of civil case dispositions waned below 1 percent where they continue to decline toward an effective rate of 0 percent.

Federal Court

Tort case trials have declined at an even more rapid and exponential rate over the past 50 years. In federal court in 1962, one out of every six tort cases filed was resolved by jury trial. By 2002, only one in every 46 tort cases filed went to trial. In 2010, the trial ratio fell dramatically to less than one in every 136 tort cases filed. Today, it is believed to be fewer than one out of every 200 tort cases filed in federal court ever reaches trial.

Over the past 50 years, civil actions filed in Nevada state and federal trial courts have significantly increased. Yet, the number of civil actions resolved by jury trial has diminished at an alarming rate and continues to decline, year after year, in both the proportion of jury trials to case filings and the absolute number of jury trials. In 1962, there were 5,802 civil trials in our federal courts. By 2002, the number of civil actions resolved by trial dropped by 22 percent to 4,569; despite an overall increase of 514 percent in the number of civil action filings during the same period of time. Between 1991 and 2010, our federal courts saw the absolute number of civil jury trials decline by an astonishing 52.3 percent.

State Court

The story is the same in our state trial courts, where the overwhelming majority of civil jury trials occur. During the same 19-year period (1991-2010), the absolute number of civil jury trials plummeted 52 percent, as well. In 1992, in our nation’s 75 most populous counties, there were 22,451 jury trials. By 2001, that number had plunged to 11,908, and in 2005 there were only 10,813 jury trials…fewer than half the number from 19 years earlier. By 2002 only 0.6 percent of all civil cases in our state courts were resolved by jury trial. Today, the downward spiral continues toward zero.

In 2012, the percentage of civil cases that went to trial in Texas was 0.4 percent. In one of the major counties in Texas, where there are 14 dedicated civil district court trial judges, there were only 48 civil jury trials in 2014—fewer than four jury trials per judge.  In the entire state of Iowa during 2014 there were only 184 civil jury trials, and in 13 Iowa counties there were no jury trials whatsoever…civil or criminal. In 61 of Iowa’s 99 counties there were three or fewer jury trials during the entire year. In Oregon, by 2008 the percentage of civil cases resolved by jury trials had dropped to 0.4 percent. In Tennessee, the number of jury trials in state civil trial courts fell from 2,000 in 1990 to 1,000 in the year 2000, to 384 in 2008. In Florida’s county civil trial courts, from fiscal years 1986-1987 through 2009-2010, the jury trial rate was effectively zero.  In 1986-87 there were 776,904 civil case dispositions and only 108 civil jury trials (0.0139 percent).  In 2009-10 there were 2,696,314 civil case dispositions, but only 119 by jury trial (0.0044 percent).  In Nevada during 2014 there were 49,458 total civil case dispositions, but only 176 civil jury trials, a dismal 0.35 percent jury trial rate. (What is particularly disturbing about that percentage is that it is above the national state average, which hovers around 0.25 percent.)

The dwindling number of civil jury trials in this country has been steep and dramatic.  Every courtroom lawyer in America knows, empirically, that there has been an exponential decline over the past 50 years across all state and federal courts in both the percentage of civil cases resolved by jury trial and a significant decline in the absolute number of civil jury trials over the past 30 years. We have gone from a civil justice system where jury trials were routine to one where jury trials have become nearly extinct.

THE CAUSES

The list of causes responsible for the alarming decline of civil jury trials includes: the rise of alternative dispute resolution (ADR); escalating costs of litigation, particularly the extraordinary expansion of discovery that has added unnecessary costs to trying cases; the adoption of a judicial philosophy of discouraging trial; the enormous increase in granting summary judgments, particularly in our federal courts; the expansion of federal pre-emption; and tort reform, including the capping of damages and attorneys fees, as well as giving certain people or entities immunity, which has lead to a lack of trial skills or experience of the current generation of lawyers.

ADR

Historically, most civil cases resolve by settlement and will continue to do so; however, the privatization of dispute resolution through arbitration may be the largest contributor to the disappearance of the American jury trial.

This has disturbing consequences. In private arbitration, the pleadings, testimony, documents and findings are all hidden from public view. Both the public and the press are barred from the arbitration room. ADR is largely unregulated and in nearly all cases, private. Today, nearly every consumer and employment contract requires the consumer and employee to waive their Seventh Amendment constitutional right to jury trial and to resolve any dispute by private binding arbitration. Our Supreme Court has undermined Americans’ Seventh Amendment right by its erroneous decisions interpreting the Federal Arbitration Act to substitute juries with arbitrators whenever possible. There are important and inappreciable social benefits that result from public trials. Trials effectuate positive change. They engender manufacturers to make safer products. They encourage health care providers to provide safer care. They inspire motorists to drive with more caution. Trials force employers and governmental entities to create and implement affirmative policies. Trials bring the light of public scrutiny to what private arbitrations keep hidden in the shadows.

Litigation Costs and Discovery

Pre-trial discovery used to consist of receiving a few hundred pages of documents, serving at most 20 interrogatories and taking a couple of one-hour depositions. During my first 4 years of practice, my boss and mentor Mitch Cobeaga would come into my office on a Friday afternoon about once a month and ask if I had a “clean suit.” My response was always “yes,” although I doubt my response would have mattered.  Mitch would then drop a file on my desk (this was back when we used paper) and say, “Good. You’re going to trial Monday.”

Back then, the file would nearly always consist of merely the plaintiff’s medical records, answers to 20 stock interrogatories, and a 40 to 50-page deposition of the plaintiff.  Granted these were not large cases, but we did not take the depositions of the healthcare providers, the eyewitnesses or the traffic officer, and the plaintiff’s lawyer did not take the deposition of the IME physician. No one hired an accident re-constructionist, biomechanical engineer or a slew of other experts, and we simply tried the case and learned to think on our feet. Now, discovery consists of receiving multiple disks or an external hard drive with millions of pages of documents (granted, the types of cases I am trying now are much different); multiple experts’ reports; countless volumes of written discovery; and endless depositions of every single person who might have some piece of information that could possibly be relevant to the case.

Pre-trial discovery has unfortunately and unnecessarily become too expensive, resulting in lawyers trying far fewer cases. Colossal pre-trial discovery is now the lifeblood of “litigators,” the term adopted by discovery/motion lawyers who do not try cases. The unprecedented cost of discovery discourages clients and their lawyers from going to trial. Clients are also pressured into ADR by their “litigators,” who are too inexperienced or too scared to go to trial. What does it say about the state of the American trial lawyer that many partners in litigation firms have never actually tried a jury trial to verdict?

Judicial Philosophy Against Trying Cases

Many judges in both state and federal courts have embraced a philosophy of discouraging trials and view themselves solely as case managers. Many judges see jury trial as a burden or a “failure” of the parties to reach a resolution. Rules, policy statements and judicial expectations in many jurisdictions place emphasis on how quickly they dispose of cases, resulting in some judges pressuring parties to settle and adopting the view that a case going to trial is a failure of the system. They often profess, “a compromised settlement is always better than a great trial result.”

Is that really what our country’s founders believed?

The Rise Of Summary Judgment

The rise of the use of summary judgment to dispose of cases by our judiciary has added to the decline of jury trials. There is an argument that some trial judges utilize summary judgment to manage their docket and regularly take triable cases away from juries. In the federal courts, more cases today are disposed of by summary judgment than through jury trials. Only two decades ago jury trials occurred at twice the rate that summary judgment was granted.

Federal Pre-emption

For centuries, federal pre-emption was narrowly construed. Today, however, it is applied broadly, stripping state court juries of their traditional areas of jurisdiction and replacing them with federal standards that provide scant, if any, protection for people.  Especially in the area of mass torts and product liability cases.

Today, cases of injured consumers are swept into multidistrict litigation (“MDL”), which is managed by the federal courts. The MDL structure, while not without benefits in some cases, usually results in extensive delays that cause most consumers to choose (or be essentially forced) to settle cases without a jury trial.

Tort Reform

For decades, big business and the insurance industry have demonized our civil juries while most lawyers and the judiciary did little to defend our Seventh Amendment right.  Many civil defense lawyers propagated the myths manufactured by the chamber of commerce and their allies of the “litigation explosion” and “run-away juries.” It is no coincidence that the steep decline in the absolute number of jury trials started during the same years these myths gained wide acceptance. As a result, Congress and legislatures throughout the states have restricted access of our citizenry to their constitutional right to jury trial through so called “tort reform,” by placing caps on damages and additional burdens on the ability of tort victims to seek redress for their injuries. A civil justice system without a jury serves business interests and the elite…at the expense of the people.

Death Of The America Trial Lawyer Tort Reform

THE CONSEQUENCES

Civil jury trials have become so rare that most young lawyers have never had the experience of trying a civil case before a jury; and, they never will. It is undeniable that the average lawyer of today has less trial experience than the average lawyer of yesterday. What may be of greater concern is that within the lawyer population, the absolute number of experienced trial lawyers continues to dwindle.

Americans typically (and rightfully) get upset with the prospect of infringement upon their constitutional rights, such as their First Amendment freedom of speech or religion rights, or their Second Amendment right to bear arms. Yet we are witnessing our Seventh Amendment right to a civil jury vanish with imperceptible protest. For those of us who believe that a jury trial is a fundamental and important civil right and that it evidences the very best of our government, this phenomenon is frightening.

Trial strategy and cultivation of jury trial skills are quickly and quietly becoming relics of the past. Lack of genuine trial experience increases the probability that a lawyer will make errors in the early stages of a case, because it is difficult to understand the importance of each step of building a case unless you understand the whole picture. It is like trying to put together a jigsaw puzzle without the picture on the box lid. In the absence of trial experience that teaches lawyers to think on their feet, they will be unable to deal with the rare case that is tried before a jury. The failure of young trial lawyers to acquire trial experience essentially guarantees that there will be no next generation of great American trial lawyers.

Exacerbating this problem is the practice by most lawyers of making settlement decisions based on historical data from other settlements, creating a closed feedback loop or echo chamber that threatens to move our legal system further away from normative notions of justice amongst its citizens. With a significantly depleted civil jury bar, the valuation of cases is often left to private mediators or arbitrators, most of whom have little to no recent trial experience, giving them no understanding of case values.  This is accelerating a downward spiral in which “trial” lawyers with little to no trial experience settle cases with no real experience from which to determine the value a jury would place on their case. This produces a system in which cases do not settle for their true value. Instead, they settle for the “going rate” established by past settlements of similar cases in which other inexperienced “trial” lawyers and mediators bargain for settlements that have no relation to how a jury would value the case because they have not seen enough jury trials to tell them how a jury would value the case. This problem will persist if there are not enough jury trials to tell us how juries value certain cases in the community.

“Because securities class actions rarely if ever go to trial, settlement judges, like lawyers, have little relevant experience to draw on other than their knowledge of settlements in similar cases . . . their role becomes not to increase the accuracy of settlements, but to provide an impetus to reach some settlement. In the absence of information about how similar cases fared at trial, settlement judges could be an important force in maintaining a “going rate” approach to settlement.” Janet Cooper, Do The Merits Matter? A study of settlement of securities class action, 43 Stan. L. Rev. 497,567 (1991)

There is a startling percentage of cases settling in error. National statistics establish the percentage of error for plaintiffs is 61 percent, versus a defendant’s error rate of only 24 percent, with only 15 percent of civil cases settling for the proper amount. The mean cost of error for plaintiffs is $43,100 per case, representing billions of plaintiffs’ lost dollars…compensation to which they are entitled.

Inexperience leads to fear. Fear of going to trial adds pressure to a downward spiral of fewer trials. Add to that pressure the escalating costs of discovery and trial court judges placing far too much pressure, far too often, on parties and lawyers to settle, and the result is the extraordinary crisis of the death of the American Trial Lawyer.  This begs the question, if we are raising a new generation of “trial” lawyers for whom trial is merely a theoretical concept, do lawyers who have little or no trial experience have an ethical obligation to inform the client who is about to hire them as a “trial” lawyer of their lack of trial experience?

The vanishing number of jury trials presents a paradox. Lawyers regularly settle cases because they have neither the experience, nor the skills to try them. This results in even fewer and fewer cases being tried. With fewer trials, fewer lawyers will gain any meaningful trial experience. What happens when all the lawyers with any meaningful trial experience die off?

This alarming trend represents an erosion of the founding principles of our country.  As Thomas Jefferson recognized, a jury of our peers is the most effective check against state power and has been the 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. Additionally, the ever-shrinking number of jury trials limits access to justice for many.

The disappearance of civil jury trials affects not just lawyers, but affects our clients as well as our citizenry. Fewer trials mean fewer citizens participating in jury service, and jury service is the most meaningful way for people to directly participate in our country’s democratic governmental decision making. For most Americans, jury service is the only opportunity they will have to play an important role in governmental decision making, other than casting their vote in an election. Many citizens feel disenfranchised to varying degrees, feeling they lack adequate representation, and as a result they are distrustful of government and its representatives. The value of having the public involved in our justice system is immeasurable, and jury service educates the public about the justice system, the role of the rule of law, and the juror’s role in the system.

U.S. District Judge William G. Young in his “Open Letter to U.S. District Judges” said it best:

“Our willingness, as a society, to drift from the use of juries reflects a failure in the understanding of the jury’s essential function in our American democracy. The jury system is direct democracy at work . . . . When people recognize that they have been cut off from their opportunity to govern directly through citizen juries, the sense of government as community—as a shared commonwealth—is severely diminished . . . the moral force of judicial decisions—and the inherent strength of the third branch of government itself—depends in no small measure on the shared perception that democratically selected juries have the final say over actual fact-finding.” The Federal Lawyer, July 2013, 30, pg. 32

THE END?

Several years ago, the journal of the American Bar Association in its section on litigation published the following obituary:

VegasLegal_Spring2016_insidepages.indd“The American Trial Lawyer, who enhanced the lives of so many Americans and made the United States . . . a just nation, passed away recently. Although a precise age is uncertain, the American Trial Lawyer was believed to have been at least 371 years old at the time of death. The cause of death is uncertain . . . but was not sudden. In fact, the American Trial Lawyer had been placed on the endangered species list a decade or so before death.  The autopsy determined that the American Trial Lawyer most likely died from a long term, progressive illness that began more than 40 years ago . . . and was exacerbated by a genetic mutation of the civil justice system that came to be known as arbitration and mediation . . . and the spread of inaccurate information about frivolous lawsuits and verdicts like the McDonald’s ‘Hot Coffee’ case.”

The disappearance of the civil jury trial poses a clear and present danger to our civil justice system and to our democratic society. We are now falling deeper and deeper into a chasm of privatization of our civil justice system through private arbitration and other forms of ADR.

I believe in the jury trial. The jury trial, with all its faults, is our purest form of self-government. I believe jurors work diligently to reach the right decision, and leave feeling good about their service and about the justice system. The loss of that citizen participation in government cannot be measured in dollars. It means fewer and fewer of our citizens will have the opportunity to participate in our American experience of self government that our founders worked and fought so hard to establish. I believe that through the American jury, decisions of justice are vested where they belong: with the governed.

If this year’s presidential election has taught us anything, it is that a large segment of the American population trusts neither the current executive in chief nor the legislative branches of our government. If we do not collectively start finding ways to preserve the civil jury trial—not just in right, but in reality—how long will it be before the American people no longer trust the country’s judicial branch and start viewing judges with the same attitude they view the elected members of the other branches of government?  This implicates the “bulwark against tyranny and corruption” about which Justice Rehnquist spoke. American citizens must remain a part of the judicial process so that they do not lose faith in their community or their country.

Are we witnessing the end? Will we continue to passively watch the ratio and absolute number of jury trials decline to zero? If we do, will there be a need for trial courts and trial judges? Will the loss of jury trials result in the loss of a continuous flow of relevant appellate opinions based on jury trials? Will we allow ours to be the last generation of American Trial Lawyers?


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.

Waiving Arbitration Goodbye

Waiving Arbitration Goodbye

By J. Malcolm DeVoy

VegasLegal_Spring2016_insidepages.inddDespite strong policies favoring arbitration, companies seeking it may be forced into court

Likely everyone who reads this magazine has signed a contract requiring arbitration of disputes. Arbitration occurs in a closed forum with limited opportunity for judicial review and no jury present—a right guaranteed by the United States Constitution’s Seventh Amendment—and has long been a source of controversy. Normally, the costs of arbitration must be split evenly between the parties, while the costs for a plaintiff to get into the courtroom are much smaller. In a David-versus-Goliath scenario, going to court is less of a burden for an individual seeking redress from a large company.  Simultaneously, arbitration offers advantages to parties who seek a private, speedy resolution of their dispute, such as companies fighting over trade secrets. Against this backdrop, arbitration clauses have become increasingly common in a wide variety of agreements…as well as the source of heated litigation before the nation’s highest courts.

For individuals and the attorneys who represent them, arbitration clauses have been targeted for attack for many years—and sometimes with success. While federal law such as the Federal Arbitration Act (and the case law surrounding it) generally favors arbitration, it is not a guarantee that a contract’s arbitration clause will be enforceable. Even in the face of a broad policy favoring arbitration, exceptions still exist.

The Nevada Supreme Court recently took up this issue in Principal Investments, Incorporated, doing business as Rapid Cash, versus Cassandra Harrison et al. 132 Nev. Adv. Op. 2 (2016). The Court’s decision was a weighty one, issued by the Court en banc, meaning all of the justices participated, rather than a normal three-justice panel; together with Justice Saitta’s concurrence, the Court’s full treatment of the case was a meaty 23 pages long.

  1. Prelude: Phantom Service of Process, Forgery, and the “Sewer.”

 The Principal Investments case begins with a process server claiming to have served numerous defendants with complaints and summonses, but having never done so.  Principal Investments exclusively used the company On-Scene Mediations as its process server in Southern Nevada, relying on On-Scene Mediations to serve lawsuits against borrowers who defaulted on the short-term, high-interest loans that Principal Investments offered. Service of process—the actual, physical delivery of a complaint, stating the basis of a lawsuit, and a summons that contains instructions about how to respond to the lawsuit—is a fundamental threshold for beginning a lawsuit and requiring the defendant to participate.

The amounts Principal Investments sued to recover were below the $10,000 threshold for District Court. As a result, thousands of its cases were filed in the Justice Court for Las Vegas Township, which has jurisdiction over disputes involving less than $10,000.  Many of Principal Investments’ cases against individual borrowers ended in default, where the defendant fails to appear or defend the lawsuit after receiving service of process, yielding a judgment for the amount due to Principal Investments under its original loan.

Eventually, one of the Justice Court’s judges questioned how quickly On-Scene Mediations was accomplishing so many serves for Principal Investments, as the lending company had filed more than 16,000 cases in Las Vegas Township’s Justice Court in 7 years. The ensuing investigation discovered that On-Scene Mediations was not serving Principal Investments’ lawsuits at all. Instead, it filed false affidavits of service claiming that it served the defendants, but never actually did so.

Describing this practice as “sewer service,” the Nevada Supreme Court implied that the documents that were supposed to be served were disposed of instead. On-Scene Mediation’s principal was charged with and convicted of 17 counts of forgery and offering false instruments. While this stemmed the tide of affidavits based on process service that never occurred, the question of Principal Investments’ many default judgments obtained against borrowers who never received notice of an action against them remained unanswered.

  1. Court for Me, But Not for Thee.

 Following the revelations of On-Scene Mediation’s actions, a number of individuals brought suit in District Court, alleging that Principal Investments improperly obtained its default judgments against them based on On-Scene Mediations’ “sewer service.”  The individuals (first individually, and then later as an asserted class action) brought numerous claims, including fraud, upon the court abuse of process, civil conspiracy, negligence, and violation of Nevada’s fair debt collection laws. Among the relief they sought was the court’s declaration that the judgments entered against them by the Justice Court were void and uncollectable.

Principal Investments moved to compel arbitration under the agreements it entered with the individual plaintiffs. Among the three plaintiffs, there were two agreements that governed Principal Investments’ ability to seek arbitration. The first version of the agreement broadly defined what constituted a “claim,” and contained language seeking to allow either party to elect arbitration for certain claims, even while others remained active in court. The second version of the agreement required either party to submit a claim to mediation before arbitration, but also contained a carve-out that sought to exempt actions filed in Justice Court from the mediation and arbitration requirements:

[either party may] bring a Claim in a small claims or the proper Las Vegas Justice Court, as long as the Claim is within the jurisdictional limits of that court […] All Claims that cannot be brought in small claims court or Las Vegas Justice Court . . .  must be resolved consistent with . . . the Arbitration Agreement”

In addition to these provisions intended to allow Principal Investments to move forward with its collections, the agreements contained more language favoring arbitration. Both agreements stated that they were made “pursuant to a transaction involving interstate commerce,” as a way to invoke the use of federal law such as the Federal Arbitration Act. The agreements went on to state they were governed by the Federal Arbitration Act, and require borrowers to waive class action and class arbitration participation.

The District Court rejected Principal Investments’ attempts to compel arbitration of the pending action. Specifically, the court held that Principal Investments’ initiation of the Justice Court actions waived its right to insist on arbitration. Both Nevada and federal law allowed the Nevada Supreme Court to hear an interlocutory appeal on the District Court’s denial of Principal Investments’ requests to compel arbitration, which the Supreme Court invoked in rendering its decision.

  1. Going to Court May Not Waive Arbitration…But Obtaining a Judgment Does.

 On appeal, Principal Investments acknowledged it waived its right to arbitrate the collections claims it filed in Justice Court, but that did not prevent arbitration of the new claims asserted against it, which arose from the On-Scene Mediations revelations.  Courts disfavor finding waivers, and do not likely reach that conclusion. Even where there is prior litigation despite an agreement to arbitrate, that waiver normally extends only to the same legal and factual issues that have been litigated—meaning that the party seeking arbitration does not get to arbitrate the issues it has already litigated in court.

The Nevada Supreme Court found that the District Court claims against Principal Investments were “integrally related to” its Justice Court claims. But for the default judgments Principal Investments obtained against the plaintiffs through the use of On-Scene Mediations, the later lawsuit—and its appeal—never would have existed.  Because these new claims directly arose from Principal Investments’ litigation and default judgments in Justice Court, the Supreme Court concluded that they threaded the needle for being based on the same factual or legal issues.

Rather than standing for a broad rollback of arbitration clauses, the Nevada Supreme Court’s ruling leaves room for unrelated claims to be forced into arbitration even where there is underlying litigation. The Supreme Court recognized one case in particular, from Wisconsin, where a payday lender’s filing suit in small claims court did not waive its right to demand arbitration of a claim against it under the Wisconsin Consumer Act.  The crucial distinction was that the small claims action did not waive the borrower’s claims against the lender in the Wisconsin case. The issue before the Nevada Supreme Court was that the claims against Principal Investments arose from the judgments it obtained by bringing legal proceedings in the Justice Court, when the lender had already chosen not to arbitrate.

Principal Investments’ other defenses were unavailing and quickly dispatched by the Supreme Court. The lender asserted its “no-waiver” clause in its agreements, which provided that bringing one claim in court does not waive the right to arbitrate other claims. The Supreme Court held, however, that those clauses could be waived, and further rendered ineffective where they interfered with a judge’s ability to control litigation, or were used “to sanctify a fraud upon the court allegedly committed by the party who itself elected a litigation forum for its claim.”  It is unlikely the Nevada Supreme Court’s use of such forceful language was accidental.

  1. Consequences for Litigants.

 The simplest way to avoid a dispute becoming as involved as the Principal Investments case is to draft clean arbitration agreements, and then follow them. The question of waiver would not have arisen if the plaintiff had not gone to court in the first place, even though the contract theoretically allowed it…all but inviting a waiver question as an obstacle to arbitration. Then, the parties to those contracts needed to enact them as drafted to avoid questions of waiver—or worse, fraud on the court—arising from conduct inconsistent with the agreement.

For individuals, this will have little if any impact, as binding arbitration has long been the bane of plaintiffs. For them, this decision has a silver lining: Rather than having to share the costs of arbitration, an individual can stay in court despite an arbitration clause as long as the other side began the judicial proceeding. The facts of this case are unique, though, and the case’s effects may be narrow in scope.

The facts underlying the decision, particularly arising from On-Scene Mediation’s service, bore on its result and hopefully will not be present in future cases. Simply going to court despite an arbitration clause may not completely remove all claims from arbitration, depending on how the clause is written. Where causes of action arise from a judgment obtained from a waiver of arbitration, though, Nevada law likely will exempt those new claims from arbitration.

For companies that must regularly sue over unpaid contracts (or for any other reason), compliance-testing one’s process servers is recommended. Another alternative is spreading out the work among a small number of approved vendors in order to examine their performance for any irregularities. As the Supreme Court noted, On-Scene Mediations provided services for companies other than Principal Investments, and their judgments as well were at risk of invalidation—to say nothing of the other claims against the company.

In all, the Principal Investments decision is shocking, and provides occasion for companies and individuals entering arbitration agreements to re-examine their policies and practices. For every company regularly involved in litigation, this case underscores the importance of ensuring due process safeguards for defendants are satisfied, including steps as fundamental as proper service of process.  While the effect of the Supreme Court’s ruling may turn out to be limited, its language and consequences should also promulgate thoughtful action from both sides in arbitration clause disputes.


  1. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. and serves as of counsel to The Firm P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, the Stark Law, and the Anti-Kickback Statute.

The Court Of Public Opinion

Of Public Opinion

 “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

— Justice Anthony Kennedy

U.S. Supreme Court, Gentile v. State Bar of Nevada, June 27, 1991

One of the most important areas that an attorney can consider is defending their client when they have been attacked or demeaned in the media: “the court of public opinion.”

Next month, June 27 marks the 25th anniversary of a landmark decision in the U.S. Supreme Court, where the court of public opinion was at the heart of the case Gentile v. State Bar of Nevada.

In 1987, Dominic Gentile was a rising star in Nevada’s legal community. He was known as a resourceful criminal defense attorney who had authored several articles about criminal law and procedure, and had served as an associate dean of the National College for Criminal Defense Lawyers and Public Defenders. Gentile would later become a professor at UNLV’s Boyd School of Law.

In the 1987 case, Gentile found himself in the unenviable position of having to defend his client against a multiple-felony indictment in the case of Western Vault. And in doing so, he had to point a finger at the only other possible culprits: undercover detectives in the elite intelligence division of the Las Vegas Metropolitan Police Department.

Soon, Gentile found himself swimming against the tide of 17 articles in the Las Vegas Sun and Las Vegas Review-Journal, and a number of TV news stories. One of those TV reporters was me, when I was covering the courts for KLAS TV Channel 8, the CBS affiliate in Las Vegas.

As a result of the U.S. Supreme Court decision, the functions of the courts and public relations were officially wed and put into perspective in a landmark ruling that would recognize and guide that grey area known as “The Court of Public Opinion.” The case involved the Jan. 31, 1987 burglary of Western Vault, a private, independent, 24-hour access vault that allowed customers to lock up valuables with minimal paperwork…a factor that appeared to be a genuine business advantage for local drug dealers. At the other end of the spectrum of Western’s Vault’s clients were the Las Vegas Metropolitan Police Department’s undercover detectives, who stashed roughly $300,000 in travelers checks for a “flash roll,” and four kilograms of cocaine. The drugs and money had been used as part of an undercover operation.

When the case went to trial six months later, Gentile prevailed on all 11 felony charges after a two-week jury trial. That high-profile win guaranteed Gentile star status among the criminal defense bar. But that star looked like it would soon tarnish when the state bar of Nevada filed a complaint against Gentile, alleging violation of Nevada Supreme Court Rule 177, which governs pre-trial publicity.

After a hearing, the Southern Nevada discovery board of the state bar concluded that Gentile had violated the rule and recommended a private reprimand.

Ouch.

Gentile lost.  Then, he appealed to the Nevada Supreme Court. And he lost again…that time, in a public hearing. Now, what would have been a private reprimand had turned into a full-blown public nightmare.

But this is where it gets interesting: Gentile took the matter to the United States Supreme Court. And he won. The case became a landmark First Amendment decision and Dominic Gentile became a nationally recognized First Amendment expert defending media outlets and individuals on First Amendment cases all over the country.

In his landmark writing, Justice Kennedy penned one of the more memorable, succinct remarks the court had ever issued: “Nevada’s application of Rule 177 in this case violates the First Amendment.” Not much gray area there.

In a recent interview, Gentile outlined some pretty solid rules for entering the fray when members of the media pursue a client. I’m reprinting a portion of his words, verbatim:

“Whenever you’re dealing with a public figure, whether it be an elected official, or a business person who has a high profile, or a well-known business person who is not ordinarily in the media but is at the moment, you have many things to protect besides the individual from an adverse decision in a courtroom.

“You have to, No. 1, protect the business that is associated with that person or vice versa. You have to protect that person’s family from the moral negative impact of this kind of adverse publicity, because in the face of such publicity, children’s playmates’ parents will tell their kids, ‘Don’t play with them anymore.’ People are ostracized. Turn their back to people. Not necessarily because they believe that the allegations are true, but they simply just don’t have room in their lives for such controversy. So in those instances, you do have to push back in order to be able to minimize that kind of damage…not just to a person’s reputation, but to the moral capacity that the person is going to need to fight the allegations.”


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.

Get more with Dominic Gentile on The Court Of Public Opinion!