Welcome to the Governor’s blog!

Any information written here, of course, is not to be construed as legal advice. But you already know that don’t you?

I am Susan Malcher, Governor of NALS of Las Vegas. and I hope to update you on rule changes, and provide tips and tricks to make your Nevada legal career less stressful. I work primarily in civil litigation. I am a stickler for civil procedure, and you should be too! Feel free to email me in response to any of the information provided here, or if you need clarification. I know some of the readers here may be new to the legal field, so I will try to break things down. I have always thought if people know why they are doing something a particular way, they will do it correctly. It is always good to re-review the applicable rules for whatever you’re working on, in case there are any new amendments. Any comments on this post would be greatly appreciated!


October 11, 2017

Lean on Me. Remember that classic Bill Withers’ song?

Today’s topic is Attorney Liens. Nothing would be more heartbreaking than to see the hard work you did on a case to be for nothing, based upon failure to follow procedures. Not to mention infuriating for your attorney. How does this happen? Remember, ignorance of the law is never an excuse. Especially if your case transitions to a Rule 22 interpleader complaint. This can happen after all your litigation efforts (not mention the costs to your firm). If the case fails to conclude for an adequate amount to pay the medical providers, you need to file a Complaint in Interpleader.

If there is any takeaway from today’s post it is this: DO NOT FILE an Interpleader Complaint without first perfecting an attorney’s lien. In fact, do not settle until you perfect the Attorney Lien. If your attorney is settling a matter without perfecting the lien he may render any claim to the funds unenforceable.

Now is a good time to review NRS 18.015, especially subsection (4):
     1. An attorney at law shall have a lien:
     (a) Upon any claim, demand or cause of action, including any claim for unliquidated damages, which has been placed in the attorney’s hands by a client for suit or collection, or upon which a suit or other action has been instituted.
     (b) In any civil action, upon any file or other property properly left in the possession of the attorney by a client.
     2. A lien pursuant to subsection 1 is for the amount of any fee which has been agreed upon by the attorney and client. In the absence of an agreement, the lien is for a reasonable fee for the services which the attorney has rendered for the client.
     3. An attorney perfects a lien described in subsection 1 by serving notice in writing, in person or by certified mail, return receipt requested, upon his or her client and, if applicable, upon the party against whom the client has a cause of action, claiming the lien and stating the amount of the lien.
     4. A lien pursuant to: (a) Paragraph (a) of subsection 1 attaches to any verdict, judgment or decree entered and to any money or property which is recovered on account of the suit or other action; and (b) Paragraph (b) of subsection 1 attaches to any file or other property properly left in the possession of the attorney by his or her client, including, without limitation, copies of the attorney’s file if the original documents received from the client have been returned to the client, and authorizes the attorney to retain any such file or property until such time as an adjudication is made pursuant to subsection 6, from the time of service of the notices required by this section.
     5. A lien pursuant to paragraph (b) of subsection 1 must not be construed as inconsistent with the attorney’s professional responsibilities to the client.
     6. On motion filed by an attorney having a lien under this section, the attorney’s client or any party who has been served with notice of the lien, the court shall, after 5 days’ notice to all interested parties, adjudicate the rights of the attorney, client or other parties and enforce the lien.
     7. Collection of attorney’s fees by a lien under this section may be utilized with, after or independently of any other method of collection.

You may wonder how do to generate an enforceable attorney lien on your case?

Although subsection 3 requires an amount of lien; the amount does not have to be exact. It would be nearly impossible to generate a statement of all costs in a case, especially if they have not yet occurred. Therefore, in a contingency agreement for example, the lien must state the agreed upon percentage (double check the retainer agreement for this amount), draft a memorandum of costs (for future use in the interpleader action) and calculate the Court Costs to date. The attorney costs are yet to be determined, since the case is not yet over.

Write a letter to each providers on your case. In the subject area of the letter, I personally place the title of:

NOTICE OF ATTORNEY’S LIEN
Pursuant to NRS 18.015

The title is attention grabbing, leaving no doubt of the existence of a lien. Then add a statement of the lien (The Law Firm of Joe Blow hereby gives notice of its attorney’s lien in the matter of Hatfield v McCoy, Case #ABC-12345), then state the amount of the lien, the Court costs and importantly the estimate of costs your firm incurred. Just state “and attorney costs in amount to be determined”, since they continue to accrue. This letter must be sent to each and every provider by Certified Mailing, and obtain a return receipt so there is no doubt.

You might wonder why make the statement about costs at all. It is not a given in any case. Remember you must be a prevailing party to get costs on any case. If you do not make the costs a part of the Attorney Lien you will lose the right to recoup. That is painful to any firm, and have no doubt, your firm will be denied its costs for this failure.

You must perfect your attorney lien this way. Before the settlement funds arrive. Protect your hard work and protect your firm by properly perfecting the Attorney Lien. Happy Litigating!


June 1, 2017

“We seek him here, we seek him there, Those Frenchies seek him everywhere. Is he in heaven? -Is he in hell? That damned, elusive Pimpernel” - Baroness Emma Orczy, author of “The Scarlet Pimpernel, (one of my favorite stories).

What does this have to do with this legal blog? Once in a while Defendants can become elusive.

What happens when you are entrusted to get a Defendant served and you just cannot locate him/her? The Nevada Legislature has provided options for this situation under the guidance of the Court.

When you have filed a complaint, remember you only have 120 days to serve it or you lose. Make sure you calendar a reminder tickle at day 100 from the date of filing. Why 100?

NRCP 4 (i) explains:
Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion, unless the party on whose behalf such service was required files a motion to enlarge the time for service and shows good cause why such service was not made within that period. If the party on whose behalf such service was required fails to file a motion to enlarge the time for service before the 120-day service period expires, the court shall take that failure into consideration in determining good cause for an extension of time. Upon a showing of good cause, the court shall extend the time for service and set a reasonable date by which service should be made.

If you need more time from the Court, makes certain you get the ex-parte motion on file by day100. This is very important.

NOTE: The following scenario applies to motor vehicle accidents, not other types of litigation. So let us say you have sent a process server out to Joe Schmoe’s last known address he provided at the time he crashed into your client’s vehicle. Joe is nowhere to be found. Tell the process server to provide an affidavit of their attempts at service at the address. You will need the document from the process server, and e-file it, but keep a copy.

You will now be guided by NRS 14.070, which is always worth reviewing for changes. In their wisdom the Nevada Legislature made it automatic that every driver in Nevada appoints the Nevada Department of Motor Vehicles (DMV) Power of Attorney to accept service on his/her behalf. Whether or not Joe Schmoe is trying to dodge service he can still be served. Section (2) of NRS 14.070 explains how to do this, but I will break it down for you without the legalese.

First you obtain your Affidavit of Attempted Service from your Process Server.
Send a letter to the DMV with a check for $5.00 and include the required affidavit of attempts.
The DMV will not serve the defendant without evidence of attempts at service.
Make a copy of the filed Complaint and Summons and include it with your letter to the DMV.
Address the envelope to:
Terri Albertson (or to whom it may concern)
Director Nevada Department of Motor Vehicles
555 Wright Way
Carson City, NV 89711
Ask the DMV to serve the defendant and to send you a “Notice of Service’.
In about two weeks the DMV will send the Notice back to you.

No, you are NOT finished at this point, but a lot of people drop the ball here and mess up the service.
Once you have the Notice from the DMV, make a copy and send it, along with a copy of the Summons & Complaint to the Defendant at the address where you tried to serve him/her. This must be sent by Certified mail, return receipt requested. Do not skip this part and keep a copy of the mailing number. Again you will have to wait while the Postal Service does their thing, but at least you can track the mailing here:

https://tools.usps.com/go/TrackConfirmAction_input

Are you done yet? Nope.

Now you need what is called an Affidavit of Compliance which is signed by you personally,detailing what you did. You may not file this because you need an attachment. You must receive the certified letter back with the yellow sticker which states it was either refused or the time expired for the post office to hold it. Once you have received the mailing back, make a copy of the envelope, and attach the envelope copy as an exhibit to your Affidavit of Compliance. File the document. You have effectuated service via the Nevada DMV. The date of service is the date on the DMV Notice. Congratulations. You have served that elusive defendant.

I hope these tips are helpful in your job. Happy litigating!


May 8, 2017

I have pondered as to the topic of the first blog post here. The subject of Case Conference Reports came up at a recent NALS meeting. I think that is probably a good place to start.

What is a Case Conference Report? Number one, it’s mandatory. It needs to be timely and accurate. NRCP 16.1 is your guide, so review it. The Case Conference Report is your foundation for the entire litigation. Discovery does not begin until the Scheduling Order issues. The Discovery Commissioner (“DC”) uses the JCCR (Joint Case Conference Report) to issue the Scheduling Order on your case. If you process discovery requests in your office, the JCCR may prove invaluable. In fact, you can get limited discovery completed by the time you have your conference by requesting opposing counsel produce certain things at the time of the conference (for instance a copy of an insurance policy). Of course you will be e-serving a notice of Early Case Conference at least a couple of weeks before, after coordinating dates with Opposing counsel’s office.

16.1 (a) (1) (A)-(D) provides what attorneys are to produce, and supposed to produce, within 14 days of the conference. If something is not produced, calendar a phone call in two weeks to opposing counsel’s assistant to find out what’s going on. Make notes on with whom you spoke and what was said. Keep this task on your calendar until they produce it. As a matter of course, I follow up with a faxed letter telling the attorney about the call (after all, you never know if attorneys even know you called). You can make yourself annoying by calling frequently and reminding them. You will become the squeaky wheel eventually. So now you have noticed the conference after coordinating dates with opposing counsel’s office. You have prepared and e-served the Notice of Case Conference and put the date on your calendars (you do use two calendars, right?). It is time to prepare your disclosures and the draft of the Case Conference Report. The DC was good enough to put a form online and she also put a set of guidelines about this topic. You can find these things using Internet Explorer at this link: http://www.clarkcountycourts.us/ejdc/courts-and-judges/discovery/Discovery_Forms/Discovery_Index.htm

Why these forms aren’t available using Chrome is beyond my understanding.

As you see, you will be adding your firm’s information at the top. You can also add whatever information to which the attorneys agree. I always place a section called a “Clawback Agreement” in the report. This guards against accidental electronic disclosure by either party. In the age of speedy electronic submissions and filings it is foolish not to think you would never accidentally attach the wrong file, or something confidential. The Clawback Agreement will protect you and your firm against these type of inadvertent disclosures. I consider it extra malpractice insurance. I word the Clawback Agreement by adding the following paragraph in the Discovery Plan Section, adding an additional sub-section titled “E-Discovery Provisions” like so:

B.      E-DISCOVERY PROVISIONS:

“(1) The undersigned parties agree to the following Clawback Agreement:

(a) Any inadvertent disclosure or production of documents protected by the attorney-client privilege or work-product protection will not constitute a waiver of either any available privilege or protection by the disclosing party.

(b) In the event that the receiving party discovers that it has received either attorney-client privilege or work-product protected documents, it will bring that fact to the attention of the producing party immediately upon discovery.

(c) Upon the request of the producing party, the receiving party will promptly return to the producing party any attorney-client privilege or work-product-protected document and any copies that the receiving party may have made.

(d) Upon the request of the producing party, the receiving party will promptly disclose the names of any individuals who have read or have had access to the attorney-client privilege or work-product-protected document.

(e) No such inadvertently produced attorney-client privilege or work-product-protected document may be used in evidence against the producing party.”

Your JCCR is now becoming a contract to cooperate between the parties which is really the whole point. It is reasonable to anticipate there could be an accidental electronic transmission. At the end of JCCRs there is an area for objections. If your attorneys do not agree on something, make sure it is noted to protect your position. Thus, a party cannot later claim they were unaware of the issue.

Another tip I have begun to add to any JCCR I generate, is add the day of the deadlines in addition to the date. The DC frequently rejects JCCRs due to deadline dates falling on a weekend. By placing the day with the date it is no longer a problem. Plus while contemplating dates for your first draft you can avoid such issues as having your expert deadlines fall on the Friday before your summer vacation begins. A good date calculator may be found here: https://www.timeanddate.com/date/dateadd.html

Once you/your attorney agrees with opposing counsel on the deadlines for the litigation, double check those dates. Another reason JCCRs are rejected is one or more deadlines do not fall within the rule guidelines. Fortunately, the DC placed those guidelines within the form of the JCCR. As a final review make sure your report complies with EDCR 2.34 (h), which states whether the parties wish to have a settlement conference, and if so the proposed dates (see page 1) and send a courtesy copy to discovery as soon as you e-file. This is mandatory, for Discovery has no way of knowing when or even if you have filed it.

I hope these tips are helpful in your quest to generate a workable JCCR. Happy litigating!