Friday, November 13, 2015

When Worlds Collide


  • The Olympic Gardens Gentlemen's Club is being sued for violating the Fair Labor Standards Act. [RJ]
  • A motion to recuse Judge Richard Boulware from the Silverstone Golf Course case was denied. The motion was based on the fact that Boulware owns a home a half-mile from the course and his property value might be affected by the case. [LasVegasNow]
  • Attorney Cal Potter is representing Stephen "Bowtie" Stubbs in a federal suit against Metro. [RJ]
  • An Allegiant pilot is suing the airline after being fired for evacuating a plane following an emergency landing. [RJ; LasVegasNow]

29 comments:

  1. SCR 123 has been repealed and unpublished opinions issued on or after Jan. 1, 2016 may be cited.

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    1. Do you have a link to the Order? I can't find it on the NV Supreme Court website

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    2. You can find it under Administrative Orders on the website.

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  2. You have to attach a copy of the Unpublished Decision.

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    1. I believe you only need to attach a copy if the other party is "not represented by counsel."

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  3. Does it mean only unpublished opinions issued after January 1, 2016 can be cited, or after January 1, 2016, unpublished opinions (no matter when issued) may be cited? I go with the latter interpretation.

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    1. Wow, the order and NRAP 36 are poorly worded.

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    2. The former.

      The order states, "[T]he amendment of these rules shall be effective January 1, 2016, and shall apply to orders [read: decisions] entered by this court on or after that date." The rule states, "A party may cite for its persuasive value, if any, an unpublisehd disposition issued by this court on or after January 1, 2016."

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    3. 9:26's interpretation is logical and would make the most sense in virtually all other circumstances. Unfortunately, since the Order Amending NRAP 36 specifies that the "new" NRAP 36 takes effect on January 1, 2016 and because NRAP 36(c)(3) provides that a party may cite to "..an unpublished disposition issued by this court on or after January 1, 2016," I think the Supreme Court is only allowing parties to cite to any unpublished dispositions that they issue on or after New Years Day, given the text and duplicity of the language (i.e., why provide for the January 1, 2016 date in the text of the revised Rule itself when the Order specifies the effective date of the amended rule?) I am hopeful that a sufficient members of our bar will bring this very poorly provision to the attention of our Supreme Court so that it can be amended to conform to 9:26's far more reasonable implementation of the revised NRAP 36. Kudos to 9:26 for highlighting this important issue.

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    4. It is the former and it is based upon the fact that the Court is basically taking the position that even Unpublished Orders should be up to snuff in their form and content. Before January 1, 2016, the Court is taking the position that it has no reliable idea as to the quality of those decisions.

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    5. Mostly they are just tracking the amendment to the FRAPs.

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  4. As much as Stubbs bugs the shit out of me, I bet he gets paid by Metro. Cal is a good attorney, if not surly at times, and the video does not, IMHO, show anything worth arresting Stubbs over. Sure he is annoying, but I think he was within his bounds and did not "obstruct," of which he was acquitted.

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    1. I'm going to disagree with the "Cal is a good attorney" comment. Having responded to some of his pleadings, I would argue that he takes creative license a little too far. That being said, whenever somebody wants to sue metro, I do point them in his direction. The only people who appear to sue Metro on a regular basis are him and E. Brent Bryson.

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    2. Cal Potter is a good attorney. Never refer clients to E. Brent Bryson.

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    3. Cal is an effective attorney. Who cares if you're good as long as you're effective.

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    4. Matt Callister does quite a few lawsuits against Metro too, I believe

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  5. The way I understand this rule change is that any/all unpublished opinions may be cited in the trial court level and only published and post 1/1/2016 unpublished opinions may be cited at the appellate court level.

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  6. The date restriction applies to citation in both trial and appellate courts. 1:40 has the reason. Part of the discussion in the public comments involves the quality of unpublished decisions so I guess the court will be issuing more carefully thought out unpublished decisions after January 1. Can't wait.

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    1. But the NRAP do not apply at the trial court level. What bars attorneys from citing to unpublished opinions predating 2016 before the trial judge?

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    2. Their impeccable professionalism.

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    3. Nothing. And why wouldn't a trial judge want to know how a similar issue played out on appeal?

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    4. Because the unpublished opinions, written when the writer knew they were not citable, were based on ends-oriented justice or were never read by a judge before signing

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    5. I'm with 9:38 here. Without a rule barring the citation of unpublished authority from before 2016 at the trial court level, I do not see why lawyers wouldn't cite to such cases if they helped their client. The weight a judge gives to such authority would be up to the judge (most judges would probably treat them as persuasive authority at best)

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    6. There would need to be a change in Rule 12 of the DCR: "When a decision of the supreme court of the State of Nevada is cited, the citation to Nevada Reports shall be given with the year of the decision." Unpublished decisions are not reported in Nevada Reports.

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    7. 9:04, that's an interesting point. However, if there is no citation to Nevada Reports from which to cite, it wouldn't be a violation of the rule to cite to an unpublished opinion precisely because there is no Nevada Reporter to cite to. The same is true for citing to Nevada Advanced Opinions. Certainly you would be able to cite a recently published case from the Nevada Supreme Court that has no Nevada Reports citation (or even a Pacific Reporter citation). Further, you are able to cite a Nevada Appeals Court decision that hasn't been published in the Nevada Reporter. The purpose of DCR 12 and EDCR 7.20 is to force attorneys to use a uniform form of citation for certain cases. The rules do not cover all caselaw (e.g. Nevada Appeal Court decisions, U.S. District Court cases not published in the federal reporter, but published in the West's Federal Supplement, West's Federal Rules Decisions, or perhaps not even published at all) and, as such, should not be interpreted as restricting what cases may or may not be cited. There are no counterparts in the Justice Court Rules of Civil Procedure or in the Local Rules for the Justice Court in Las Vegas. It would not make sense that the ability to cite to unpublished authority depends on whether the amount in controversy exceeds $10,000.00.

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    8. My mistake, there is a counterpart in Justice Courts.

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    9. This is a nightmare. Responding to an unpublished decision, particular the older ones, will require finding the underlying briefs or pleadings in order to distinguish the decision. A lot of counties do not have electronic dockets and I'm not sure how far back the Supreme Court docket goes. More time and expense to distinguish a decision that was written when nobody thought it could be cited.

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    10. The pros outweigh the cons. Most unpublished decisions that are particularly old are not available on LEXIS or Westlaw, so there shouldn't be too much of an age issue. If an unpublished decision is particularly short or unclear as to the operative facts, that should obviously be in the response. Likewise, authority from other states/federal courts can be relied upon as well. However, there are a number of unpublished cases that address issues of first impression that may now be cited and help the court make decisions. For example, the NV Supreme Court affirmed the application of the first to file rule in Tenas v. Progressive Insurance Co., 2008 WL 6113368. The court did it again earlier this year in Sherry v. Sherry, 2015 Nev. Unpub. LEXIS 443. Litigants should be able to cite to these decisions instead of fleeing to federal or another state's authority.

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  7. Olympic Gardens, male attorney's favorite place for lunch.

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