The Nevada Supreme Court has published a handy dandy guide to the legislation emerging from the 2009 Nevada Legislative Session. The summary offers judges, attorneys, and other interested parties with information on the bills passed during the most recent session, highlighting those of importance to the justice community.
Download your copy here.
What will happen here in Nevada if the U.S. Supreme Court decides that due process requires a 
judge to recuse if a party had made a sizable donation to the judge’s campaign? While many Nevada judges do currently voluntarily recuse in such circumstances, they are not obligated to do so.
Arguments were heard yesterday in a US Supreme Court case that could made such recusal mandatory. Caperton v. A.T. Massey Coal Co. involved a West Virginia Supreme Court Justice who declined to recuse himself in the coal company’s appeal of a $50 million fraud judgment. The president of the coal company had donated $3 million to electing the justice, who cast the deciding vote to overturn the verdict. The facts of the case bear some similarity to the legal case underlying John Grisham's The Appeal.
The Petitioners asked the Supreme Court to adopt a rule holding that due process requires recusal by a judge in a case where a party had made a sizable donation to the judge’s election campaign. Such a ruling could lead to frequent recusals in Nevada cases at every level, especially if donations by counsel were included.
The difficulty of such a rule would be deciding when it applies. No one seemed to suggest that an automatic recusal was appropriate. Justice Scalia noted that the various amici in the case, including the Conference of Chief Justices, had offered an assortment of standards to be considered. Petitioners urged that a standard requiring consideration of the “probability of bias” be applied.
Comments during the argument on Caperton the Court suggest Kennedy, Stevens, Souter, Breyer, and Ginsburg could form a majority in favor of a rule that required recusal if there was a probability of bias.
However, the best line from the argument has to be Scalia’s question to Petitioner’s counsel: "You've been around Washington a long time. How far do you think gratitude goes in the general political world?"
But Scalia followed up that knowing remark with a statement that must surely be considered disingenuous, assuming that an elected judge would think:
that person contributed money to my election because he expected me to be a fair and impartial judge. And I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude. I should do what he expected me to do, and I have no reason to think he expected me to lie and distort cases in order to come out his way. What I expected he wanted me to do was to be a good judge, and I'm being faithful to him and I'm -- I'm showing my gratitude by -- by being a good judge
The increased money being spent on state court judicial election campaigns across the country has sparked considerable concern about the purchase of justice. But Massey Coal has rejected any comparisons of its situation with that laid out in John Grisham’s novel of last year, The Appeal, wherein a judicial candidate was handpicked with the pending appeal of huge tort judgment in mind. See the USA Today article Supreme Court case with the feel of a bestseller.
Read the transcript of the Caperton oral argument here. Find the briefs here. Hat Tip to law.com. See its report here.
I’ve been practicing law in Nevada for four years. As I discuss in Neon Law, my latest contribution to Living Las Vegas, I rather enjoy it. .bmp)
And here’s a perfect example of how amusing the law can be in Vegas.
A local lawyer has adopted the practice of providing a pin-up calendar to his clients and colleagues. But it does not contain sedate scenes of lovely landscapes, or views of our fair city, or even kittens. Err – well, not felines, but maybe sex kittens. The photos purport to be members of the firm's staff.
Superlawyers.com is calling for nominations for candidates for 2009 Mountain States Super Lawyers designation.
All lawyers with at least 5 years experience may nominate candidates. If you didn’t receive a postcard inviting your nominations, click here for to request an access code. Go to https://my.superlawyers.com/ to nominate attorneys.
Now, personally, I’d like to see more women showing up on this list!.
The nominations require only: First Name, Last Name, Firm and Practice Area (there’s an optional comment section).
Ahem – ust to help out anyone choosing to nominate me:
Tami Cowden
Kummer Kaempfer Bonner Renshaw and Ferrario
Appellate, general litigation
You can nominate up to 7 inside the your firm and 7 outside your firm. However, your in-firm nominations count only if you nominate as many or more attorneys outside the firm.
The attorneys you nominate must have at least five years of experience as an attorney (not just here in Nevada – an attorney anywhere).
There is also a “Rising Star” category, for attorneys under 40, and with less than ten years experience as a lawyer. (I’d love to be a rising star, but I don’t qualify on either of those grounds!)
The 2009 winners will be announced in February and will publish in June or July of next year.
For those wanting to buy the superlawyer figurine (creators not, to my knowledge, affiliated with Superlawyer.com), click here
Read on for info about the selection process. Take it as seriously as you like.
Continue Reading...
The Nevada Bar Exam results are in. The unofficial pass rate is 69%.
Congratulations to all the soon to be sworn in lawyers!
Jon Ralston has posted the report of the Inspector General on the firing of Nevada’s U.S. Attorney, Daniel Bogden, at the LV Sun website. The IG concludes that Bogden was probably placed on the removal list because he refused to assign an attorney to the obscenity task force to prosecute a case that sounds as though it would have been a rather pointless use of resources, as it appears to have involved nothing more than a man and his wife posting on the Internet videos of themselves engaged in acts a task force member considered obscene.
Kyle Sampson, the person who compiled the various lists of U.S. Attorneys to be removed, acknowledged to the IG that there may have been U.S. Attorneys whose performance was “worse” than Bogden’s, but were not removed because they had the right political connections.
Worse, of course is a relevant term, since no one, other than the head of the Obscenity Task Force, appears to have had any complaints about Bogden at all.
Yesterday, I commented our profession’s devotion to discussions of strategies for leaving the profession. I am sure that one reason that exits are so common, especially for litigators, is because of a simple fact – our clients come to us because they have trouble. In fact, in my more cynical moments, I have described commercial litigation as working for wealthy people who can’t get along.
With a daily reality like that, law can sometimes seem a meaningless grind.
Fortunately, there are times when I get to just feel good about what I do. And one of those times occurred last night, when I visited Lavo, the newest restaurant, lounge and nightclub from the people who brought you Tao Las Vegas, Tao Beach, and Tao New York.
Despite my presence, Lavo is clearly a happening place. More importantly, as I walked through the space filled with beautiful men and women enjoying good food, loud music, and intriguing décor, I got a reminder that what we do as lawyers can have real meaning to real people.
The reason I got to feel good so good about being there was because I was part of the legal team that overcame the attempts to prevent Lavo from ever coming into existence. Lavo represented years of planning and millions of dollars in investment by my clients. It employs hundreds of people.
And it is open.
That feels good.
And not only that, but I got to write a few damn good briefs (can you tell I don’t believe in false modesty?), including one in which I used a series of quotes from Machiavelli to establish the theme.
That’s the sort of thing legal writing geeks like me live for, you know.
The U.S. Court of Appeals for the DC Circuit denied Blue Man Vegas LLC’s challenge to an adverse NLRB decision certifying the election of a union by stagehands. Using Venn diagrams, the Court explained why the Board’s proposed bargaining unit that excluded musicians technicians was fair.
The Court also declined “to take judicial notice of several artistic reviews of the Blue Man Group show that aptly describe the unique and highly unusual experience of attending a Blue Man Group performance."
See the opinion here.
Election season always brings a number of interesting and fast-tracked cases before the our state's high court. This year is no exeption.
Just take a look as what is scheduled for June 13. That day wiil be particularly busy for the Nevada Supreme court, with several high profile hearings scheduled at the Supreme Court Courtroom in Las Vegas, on the 17th floor of the Regional Justice center.
The morning will be devoted to oral arguments before the full court.
At 10 a.m., the court will hear argument in the case of the Independent American party of Clark County vs. Secretary of State Ross Miller, involving term of office issue. See briefs here.
At 10:30 a.m., the Court will hear Judge Halverson’s challenge to Legislature’s right to create judgeships with shorter terms, which was done to place all judges on the same election and pay raise cycle. See briefs here. (By the way, I’m happy to see that the AG’s response did offer rebuttal to the merits of Halverson’s constitutional challenge, unlike that of the registrar’s.)
At 11 am the Court will hear the challenge to the candidacy of Michael Montero for a seat on the Sixth Judicial District Court bench. Montero resides outside the district, and the issue is whether, candidates need not be residents of their district to file for office. See briefs here.
Then, at 1:30 p.m., the Court will hold an unprecedented case management hearing to determine certain other ballot issues, including the last minute challenges to term limits and tax initiatives. The cases in which the hearing was ordered include LV Convention v. Miller/County of Clark v. School Funding Solutions; Nevadans for Nevada v. Martin ; We the People Nevada v. Miller (51735). Click on the links for each case for briefing.
A statement from the Chief Justice Mark Gibbons explains:
The Court will determine how best to address the cases so they can be resolved as quickly as possible. The Court must be responsive to the public’s needs, but must also provide opportunities for all parties to file necessary briefs and for our court staff to conduct the necessary research.
Some cases will have common issues, but others are unique. The Supreme Court is being asked to compress its procedures into very short time frames to accommodate the election cycle and the needs of counties to have absentee ballots printed and mailed in a timely fashion.”
At this point, we don’t know which cases must be decided before the Primary Election and which do not need to be addressed until the General Election. We do not know if the Court can appropriately address all matters in the brief time available, but I can guarantee the Justices will work as hard as they can to meet the needs of the litigants and the public. It is vital, however, that the litigants are afforded due process and that the Court’s decisions ultimately are correct.
The Chief Justice promises, “While we will give these cases priority, we will not take shortcuts and issue opinions that are not well reasoned and supported by the law and the Constitution.”
I have to give credit to our court. Despite the volume of cases they already handle, they make the time to fit these time sensitive matters in. The compesses schedules place a burden on the attorneys who have to brief the issues, but also on the justices who must decide the matters
"Heaven has no rage like love to hatred turned nor hell a fury like a woman scorned."
Recently court filings demonstrate the truth of this quote from "The Mourning Bride" (1697) by William Congreve.
Jon Ralston and the Las Vegas Sun have kindly posted the motion filed by Nevada First Lady Dawn Gibbons to unseal the divorce proceedings after Governor Jim Gibbons obtained an order sealing the matter pursuant to NRS 125.080 and 125.110.
I have long been an advocate of telling the client’s story. I even occasionally teach people how to do it. However, I am not an advocate of trying cases in the court of public opinion. Given the hyperbolic nature through which Dawn Gibbons’s tale is being told, it seems apparent that it is that court, rather than in the 2d Judicial District court, in which the First lady wants to try the case.
Normally I wouldn’t delve into this sordid combination of public/private litigation. Dissecting the marriages of politicians, even those of Republicans who claim to adhere to family values, is generally too much like shooting fish in a barrel.
Oh, and in bad taste, too. Anyway, divorces are a particularly nasty sort of litigation, and no one escapes untarred from such matters. William Congreave had it right about extremes of rage and fury.
However,the First Lady's motion warrants comment from a legal writing perspective. In fact, I believe I will henceforth use it as a shining example of “over the top” legal writing. A "poster child," as it were. (See. p. 31 of the brief)
The narrative just goes too far. Telling the story is one thing. Telling a story suitable for a tabloid is another. I just don't think that making the reader feel the need for a shower is an effective persuasive technique. (However, as tabloid writing goes, it was very well written with several nice, evocative phrases. I parrticuarly admire the latter portion of page 6).
There are other issues I take with this brief. The creative capitalization evokes amusement, rather than the desired emphasis. Lengthy passages seem to both quote and discuss opinions, but what is discussion and what is quotation isn’t really clear. The seemingly endless dissection of Burkle could surely have been cut down to, say, 2-3 sentences.
And shouldn’t Johanson v. Dist. Ct., 124 Nev. Adv. Op. No. 23 (May 1, 2008) at least have been acknowledged? It is, after all, an opinion less than a month old that specifically addressed NRS 125.110.
The sad result here, I think, is a self-fulfilling prophecy. The First Lady is painted as having been vilified, but the extreme language and accusations will most likely result in this motion becoming a source of vilification. And ridicule.
Sealing cases can make sense in certain contexts. However, I actually believe, as the First Lady advocates in this brief, that the person who wants a matter sealed should be required to demonstrate a legitimate reason to take a court matter out of the public eye. Unfortunately , the hyperbole in this brief might well present precisely such a reason here.
Electing judges offers such potential for scandalous stories.
For example, Channel 8 reports that one of the attorneys under investigation by the FBI for allegedly conspiring to bilk insurance companies has claim, on tape, to have several Nevada judges in his pocket.
The attorney, who has not yet been charged with a crime, was being taped without his knowledge. Ironically, he was apparently complaining that his colleague was mouthing off about the influence they wielded in return for their judicial campaign contributions. The attorney reportedly said his friend was
telling everybody he, he was telling people that he had the judges in his pocket. I've heard him say it -- I would deny I've heard him say it -- but I've heard him say, ‘Yeah, I've got five or six judges that will do anything I want.' I want to tell you something, I know all those judges. There's five or six judges that will do anything I want. They don't do it for [my friend], so it's for me. I mean, we've got some great friends over there."
The judges in question are not named in the TV station's report.
Read the story at I-Team: Trading Favors for Campaign Cash?
Nevada made the ABA Journal’s website again, this time for Glen Lerner’s failure to appear on the first day of a murder trial in which he represented the defendant. The story, Lawyer Misses Client’s Murder Trial, Says He’s on Sabbatical links to yesterday’s R-J article by Robert Kihara, RISKING SANCTIONS: 'Heavy Hitter' in tough spot . Both articles quote UNLV Prof. Martin Geer’s description of Lerner’s actions as outrageous.
The ABA article also references some of Lerner’s colorful ads, including one with space aliens asking him for advice. I’m kinda I missed that one.
Lerner is reportedly writing a book. No mention of what kind of book. I am guessing fiction.
Last year, salary wars were big in the news, with New York firms offering starting salaries for newly graduated attorneys at as high as $160,000. This year, the story is those wars will cool off, especially with the downturn in the economy. Even bonuses might decrease. Billable hour expectations, however, likely will not.
But those kinds of stories (and salaries) are for the national big boys. Things are different locally.
Especially at a well known local firm that is reportedly taking drastic measures to deal with unmet expectations for billable hours. Reportedly concerned because only four associates made a 2000 hour billable requirement last year, the firm has taken to requiring 80 billable hours in each two week period. If the requirement isn’t met, the associate’s paycheck will be less. On the other hand, associates now get additional pay for each hour over 80. See Will, Wild Law for more details here and here and here.
Paying employees hourly wages is nothing new, of course, although it is atypical for associates in respectable law firms. The risk of bill padding exists in any billable hour scheme, as Scott Turow point out in The Billable Hour Must Die. But surely the risk seems even greater when you imagine a young associate, burdened with student loans and a mortgage with a sky-rocketing ARM, facing a dock in pay because he chose to work on a pro bono case or attend a CLE.
I suspect hiring partners from other firms have received a slew of resumes from associates from this firm.
Last Friday I had the pleasure of moderating a CLE on Effective Written Advocacy. The panel considered of Judge Stewart Bell; Judge Jackie Glass, Judge Kenneth Cory, Judge David Wall and Judge Elissa Cadish, all from the Eighth Judicial District. This is the busiest court in the country, with the most burdened judges in terms of caseload.
I can’t say it was much of a surprise to me to hear that what judges would really like to see in written advocacy is a concise explanation of what the writer wants, and why the writer should receive it. Nor was I surprised to hear that they are unimpressed by slurs and sneers against opposing counsel. (But judges – sometimes it just feels good to write those things!)
I was somewhat surprised to hear that judges don't mind having counsel take the opportunity for a preliminary procedural issue to ‘educate” the judge about the entire factual dispute underlying the merits of the case.
As for the ever popular citations in the text or in footnotes argument, these judges prefer them in the text, finding that method easier to read. I concur!
All in all, the CLE was a nice opportunity to hear from judges about what is really important to them.
Unofficial bar results were published yesterday. The (unofficial) pass rate was 66%, the same as last year, but higher than the February 2007.
Congratulations to KKBRF associates Jordan Pinjuv, Eric Willis and Michael Schwartzer, each of whose names appear on the list! Way to go, guys!
The admission ceremonies are as follows:
Reno Ceremony
Wednesday, October 31, 2007, 3:30 p.m.
Lawlor Events Center
Silver & Blue Room
1664 N. Virginia Street
Las Vegas Ceremony
Friday, November 2, 2007, 3:30 p.m.
Cashman Center
Auditorium
850 N. Las Vegas Blvd.
Today, in “Don't show her 'Missouri Plan,'” the Sun reports on Judge Elizabeth Halverson’s interaction with last week’s CCBA monthly luncheon speaker Doreen Dodson, chair woman of the American Bar Association 's Judicial Independence Committee.
I was present at the CCBA luncheon and thought Judge Halverson’s participation added greatly to the presention. Before taking questions, Ms. Dodson specifically addressed strategies to deal with hostile questions. Judge Halverson provided her with an excellent opportunity to demonstrate those skills.
Lest there be any doubt, I am an unabashed supporter of merit selection for judges. The plan approved by the Nevada Legislature this past session is, save for the 55% retention vote requirement, very like that used with much success in Colorado for some decades. The Nevada version, like Colorado’s, includes performance reviews by a Judicial Performance Commission, which insures voters have relevant information available in making a retention decision. I urged the adoption of just such a plan in my October 2006 Communiqué article, “Selecting Judges: Making Informed Choices.” Kudos to the legislature for taking the first step toward helping Nevada’s judges maintain their independence of big money interests.
Local papers report on the U.S. Attorney’s office to add seven attorneys, plus additional staff, positions that had been unfunded.
Senator Ensign stated that he had muted criticism of AG Alberto Gonzales over the firing of former Nevada U.S. Attorney Dan Bogden while trying to get the staffing needed. Apparently unconscious of the political trade his muted criticism constituted, Ensign stated "I wanted to make sure that instead of playing politics, we were solving a problem. . . .”
See the report in the R-J: U.S. attorney's office to add staff in Nevada, Ensign says
The regularly session of the legislature is coming to a close, with adjournment scheduled for June 4. Working on the holiday, the Nevada legislature yesterday approved a bill authorizing DNA collection for all felons. Current DNA collection had been limited to those convicted of violent or other serious felonies. AB92 expands collection to all, including non-violent property crimes. See the R-J’s report at "Collection of DNA from all felons wins OK ."
Meanwhile, prison and parole reform measures are less certain, as the R-J reports in "Lawmakers consider package of criminal justice reforms."
This morning, Meredith Viera of the Today show introduced a piece entitled “"NBC News Investigates: Nevada Governor Under Fire" by saying it offered “new allegations on an old theme: political corruption.” The news piece focus on the allegations made by Dennis Montgomery that his former partner, Warren Trepp, provided lavish accommodations and more than $100,000 in cash and casino chips to Gibbons and his family.
Most of the report about Montgomery’s claims is old news to Nevadans, but national focus on the allegations has obviously heightened.
In these partisan times, unanimous votes aren’t all that common in any legislature, including the Nevada State Assembly. But the vote in favor of amending the Nevada Constitution to create an intermediate court of appeals received just such unanimous support yesterday. If SJR9 is approved again in the 2009 legislative session, the issue will be presented to the voters.
Similar efforts to create an intermediate court have failed before. However, the population, and with it, the number of cases filed in the Supreme Court (consistent with the vast increase in district court filings) has also risen to a degree that greatly burdens that court, and further delays a final disposition for all litigants. Nevada needs an intermediate court to help with the increased cases. It is heartening to see the legislature put aside partisan differences for the sake of an issue fully deserving of unanimous support.
See the report in the R-J.
Yesterday, I had the pleasure of participating in the National Law Day celebrations by leading a Dialogue about juvenile justice at Ms. Sharon Heflin’s U.S. Government class at Basic High School in Henderson. Every year, the Community Service Committee of CCBA, in conjunction with the State Bar of Nevada and the Clark County School District, facilitates this program. These dialogues were designed by U.S. Supreme Court Justice Anthony Kennedy after 9/11 to increase student awareness of American freedoms.
This year’s topic was officially “Liberty Under Law: Empowering Youth, Assuring Democracy.” As a speaker, I received a packet of materials offering suggested topics according to age groups. For high school students, the topic was our system of juvenile justice. In preparation for my visit, Ms. Heflin had discussed the U.S. Supreme Court case of In re Gault with the students. In case you don’t recall (as I had not, assuming I had ever known) In Re Gault held that juveniles are entitled to certain basic civil rights, such as the right to representation and the right to knowledge of the charges.
What the Kids Think
The discussion was spirited, with students expressing a wide range of opinions about both the juvenile justice system, and our criminal justice system in general. A discussion of this type leads fairly easily into something near and dear to this former prof who taught crim law in college and law school settings: the age old debate over whether the primary purpose of criminal justice should be punishment, rehabilitation, or deterrence.
I found the passionately held opinions of 17 and 18 year high school seniors fascinating. In this diverse classroom, various students argued for each of these traditional justifications of criminal law. One student urged retribution as stringent as that found in medieval times, arguing for both the use of extreme measures such as delimbing as punishment for theft, as well as the immediate execution of death sentences. More than once, the phrase “an eye for an eye” was uttered by classmates. Another student, shy despite her obvious faith in her opinions, almost whispered her belief that rehabilitation is a more appropriate goal. And while some agreed that the example of harsh sentences might deter crime, one student pointed out that violent criminals probably aren’t engaged in serious reflection of the potential consequences while committing the crime.
In short, this single classroom was a microcosm of the diversity of opinion on the larger debate that exists throughout our society. What was particularly interesting to me was that such variety exited within a classroom where many volunteered their close hand knowledge of the criminal justice system through the experiences of family and friends. In a state with the most rapidly growing prison population in the country, the views of these future voters are important.
Thanks for the Memories!
Many thanks to Ms. Heflin and her students for inviting me. I’d offer pictures, but two problems arose: 1) school rules don’t allow publication of photos of students without their parents’ permission and 2) without realizing it, I had my camera on video, instead of whatever setting takes still shots. The IT guy I sleep with (my husband) is checking into options to resolving the second problem, but these kids may graduate before permission slips can be rounded up.
PS- Ms. Heflin has a very cool classroom, filled with thought provoking quotes, bumper stickers, and posters, in addition to books and other scholarly materials. My favorites were the series of posters of smug-looking, affluent types proclaiming:
“Don’t Vote – We like things the way they are.”
The R-J today has a story entitled "Court decision to review ads worries some Nevada lawyers."
I'll worry only if every blog post has to be submitted within 15 days.
The R-J today has a story entitled Enforcing the State Smoking Ban: Public health v. free speech. The Southern Nevada Health District has filed it first law suit seeking to enforce the smoking ban enacted through a ballot initiative against Bilbo’s Bar & Grill. Bilbo’s responds that its advertising use of matches and ashtrays is its first amendment right. The Health District seeks a preliminary injunction to force the bar to cease is display ofthe ashtrays. A hearing is set for June 6.
The Assembly Judicial Panel voted unanimously today in favor of SJR 9, which seeks a constitutional amendment to create an intermediate appellate court in Nevada. The Nevada Appeal reports on the vote here.
The Las Vegas Sun reports that the attorneys from the Special Public Defender's Office have filed motions on three cases decided by the Court en banc, with former Supreme Court Justice Becker a member of the panel. The motions assert that Becker should have recused herself as she was negotiating with the Clark County District Attorney’s Office for what the Sun calls “a high paying, high ranking job” at the time the opinions were issued.
The opinions in Johnson v. State, Thomas v. State, and Summers v. State were issued on December 28, 2006, after Becker had failed to win reelection to the Supreme Court. Each of the cases raised an issue of whether the defendant’s right to confront witnesses had been violated by the use of hearsay in the sentencing phase of the trial. The convictions were affirmed, with Justice Becker siding with the majority in each of the 4-3 decisions. However, the minority opinion in each was a concurrence in the result, with the minority justices expressing the view that in future cases, objections to the use of hearsay in the sentencing portion of a death penalty case should be permitted.
The R-J today reports on the results of a survey of users of Clark County's Family Court. Participants in the survey were nearly expressed satisfaction when asked about the building safety and ease of use, but satisfaction levels decreased sharply when the topic was efficiency. Still, even for that topic, more than 65% declared satisfaction.
One participant was clearly less than satisfied with the survey itself. That respondent "strongly disagreed" with the penciled-in survey statement: "Parking was easy."
The R-J today reports Nevada’s failing grade in legal representation of abused and neglected children. A report by First Star, a Washington-based child advocacy group, issued the failing grade to Nevada and fourteen other states that do not require representation for children in dependency and neglect proceedings.
Clark County Legal Services makes valiant efforts to provide such representation. Attorneys interested in acting pro bono to represent these children can do so through CCLS’s Children’s Attorney Project.
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