ALTERNATE DISPUTE RESOLUTION
As the name implies, Alternate Dispute Resolution (or "ADR") means the resolution of a legal dispute through ways "alternative" to litigation. There are several "methods" of Alternate Dispute Resolution. The two main Alternate Dispute Resolution methods are mediation and arbitration. There are also other ways of resolving disputes through other Alternative Dispute Resolution methods similar to mediation and arbitration and some are hybrids of both.
Alternate Dispute Resolution methods have similar characteristics. They are usually simpler, quicker, and less expensive than litigation. They are less stressful. They invite more involvement by the parties. The process is almost always voluntary and does not affect a parties right to bring a lawsuit if ADR is unsuccessful.
Regardless of whether you agree to resort to Alternate Dispute Resolution to resolve the legal dispute, however, a complaint must still be filed before the expiration of the Statute of Limitations. Even if a complaint is filed before the Statute of Limitations expires, the parties can still agree at a later date, and before trial, to resort to ADR methods to resolve the dispute.
ANSWER
An answer is a pleading filed by the defendant in response to the allegations set forth in the complaint filed by the plaintiff. If an allegation made by in the complaint is not denied in the answer, the allegation will be deemed admitted.
In addition to responses to the specific allegations contained in the complaint, the answer may also contain "affirmative defenses", which are legal defenses based on facts not referred to in the initial complaint. If these "affirmative defenses" are not contained in the answer filed initially, they may be "waived", so it is important retain the services of an attorney if you have been d and need to file an answer.
The answer is usually filed with the same Court where the complaint was filed and is assigned to the same department and given the same case number. If an answer is filed in the same Court where the complaint was filed, however, the defendant has entered a "general appearance" before the Court and cannot then claim that the Court lacks jurisdiction to hear the case.
If the defendant does not file an answer within 20 days after the complaint was filed, the plaintiff may try to obtain a default judgment against the defendant. If you have been sued, you should retain an attorney to represent you. If you have been sued in connection with a car accident, and you have auto insurance, your insurance company has the duty to defend you and will select an attorney to represent you. You should contact your insurance company immediately if you have been sued.
ARBITRATION
An arbitration is a hearing where the parties to a lawsuit or dispute submit evidence to an arbitrator, who considers the evidence and renders an arbitration award. This differs from mediation, where a mediator, or "third-party neutral", assists both sides in reaching a settlement of the dispute, but does not render an arbitration award.
An arbitrator, sometimes called a "neutral hearing officer", is typically someone with a legal background, such as an experienced attorney or retired judge. Although the parties submit evidence to the arbitrator just as they would at trial, the arbitration usually takes place in a less formal setting than a trial, such as the office of the arbitrator.
There are two types of arbitration. One is binding arbitration, where the arbitration award is final and cannot be appealed by either party. The other type is non-binding arbitration, where an award is made, but either side can appeal the award.
The parties to a dispute can agree by contract to resolve the matter through arbitration, whether or not a lawsuit has been filed. Many contracts, including leases and insurance contracts, contain an "arbitration clause" providing that in the event a dispute arises, it must be resolved through arbitration, rather than litigation. Because public policy strongly favors arbitration over litigation, these contractual provisions are considered valid, enforceable and irrevocable under N.R.S. 38.035. Before you enter into any contract, including an insurance contract, you should determine if it contains such an "arbitration clause". These provisions can greatly affect your right to file a lawsuit.
Nevada has adopted the Uniform Arbitration Act, which establishes procedures for determining the enforceability of arbitration agreements and the procedures for the arbitration of disputes. The Uniform Arbitration Act is found at Chapter 38 of the Nevada Revised Statutes.
BURDEN OF PROOF
In all civil and criminal cases, the plaintiff has the burden of proving each and every necessary element of the claim. This is akin to the concept of "innocent until proven guilty." Although this phrase is associated more with criminal trials, it has application to a civil case as well.
The Burden of Proof refers to the standard of proof the plaintiff must meet in order to prove his or her case. The burden of Proof standard varies, depending on the type of case brought.
It is generally well known that a criminal case brought by the State of Nevada against a defendant must be proved "beyond a reasonable doubt". The standard in most civil trials is lower, and is referred to as "preponderance of the evidence." In other words, the plaintiff need only prove that an allegation is "more likely than not" true. Or, the plaintiff need only tip the "scales of justice" in his or her favor.
The burden of proof in some civil cases alleging more serious conduct by the defendant, such as fraud, oppression or malice, is higher. These types of cases must be proved by "clear and convincing" evidence, a standard higher the "preponderance of the evidence", but lower than "beyond a reasonable doubt".
COMPARATIVE NEGLIGENCE
Comparative negligence refers to the negligence of the plaintiff, as determined by the finder of fact at trial. Under N.R.S. 41.141, a plaintiff who brings a lawsuit for personal injury or wrongful death cannot recover damages if his or her negligence is determined by the finder of fact to be greater than that of the defendant. In other words, if the negligence of the plaintiff is determined to be more (i.e. 51 percent or more) than that of the defendant, the plaintiff cannot recover at all.
Example -- Plaintiff pedestrian is struck by defendant driver while crossing the street outside of a crosswalk. After a trial the finder of fact determines the pedestrian was 60 percent negligent and the driver was 40 percent negligent. Because the negligence of the plaintiff is greater than the negligence of the defendant, the plaintiff cannot recover anything, even though the defendant was found to have been partially at fault for the accident.
If the comparative negligence of the plaintiff is found by the finder of fact to be less than, or equal to, the negligence of the defendant, the plaintiff can still recover, but the amount awarded at trial must be reduced in proportion to the amount of comparative negligence of the plaintiff.
Example -- Plaintiff pedestrian is struck by defendant driver while crossing the street outside of a crosswalk. After a trial the finder of fact awards the plaintiff $10,000. The finder of fact also determines, however, that the pedestrian was 40 percent negligent and the driver was 60 percent negligent. Because the negligence of the plaintiff was less than the negligence of the defendant, the plaintiff can recover, but the $10,000 award must be reduced by the proportionate amount of the comparative negligence, or by 40 percent. The plaintiff therefore recovers $6,000.
Even if the comparative negligence of the plaintiff is found by the trier of fact to be equal to that of the defendant, or 50 percent, the plaintiff can still recover, but any award must be reduced by half.
The laws of states other than Nevada may be entirely different with respect to comparative negligence, and as to whether, and to what extent, a plaintiff can recover damages if the trier of fact determines there was negligence on the part of the plaintiff.
COMPENSATORY DAMAGES
Compensatory damages are designed to "compensate" a person for losses suffered as a negligent or wrongful act of another. Compensatory damages include pain and suffering, emotional distress, property damage, past and future medical bills and other out-of-pocket losses. Compensatory damages can consist of either general damages, special damages, or both.
COMPLAINT
A lawsuit is commenced with the filing of a complaint. Under Rule 8 of the Nevada Rules of Civil Procedure, the complaint must contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and, (2) a demand for judgment for the relief to which he deems himself entitled. Rule 8 also provides that if an amount over $10,000 is sought, the demand shall be for damages "in excess of $10,000" without further specification of amount. Nevada has long adopted the rule of "notice pleading" which means the complaint need only be particular enough to put the other side on "notice" of the nature of the claims being made.
Rule 10 states that the complaint must contain a "caption" setting forth the name of the court and the county, the title of the action, the file number and the names of the parties. If the identities of one or more defendants is unknown, they may be referred to as "Does" defendants and their real identities added or substituted later. As an example, see sample complaint.
The complaint must be accompanied by payment of a fee in accordance with the Filing Fee Schedule. After the complaint is filed, the court clerk issues a summons to the plaintiff or his attorney, who is then responsible to arrange service of process of the complaint.
CONTINGENT FEE AGREEMENT
A contingent fee agreement is a written contract between the client and the attorney providing that the attorney's fee is calculated as a particular percentage of the monetary recovery obtained for the client. Almost all personal injury attorneys are paid on a contingency, which means the attorney fee is "contingent" upon the outcome of the case. In other words, if the client recovers nothing, the attorney is paid nothing. A lawyer may also be paid on a contingency basis for other types of civil cases where monetary damages are being sought. A lawyer cannot enter into a contingent fee agreement for representing a defendant in a criminal case.
Under Rule 155 of the Nevada Supreme Court Rules, the contingent fee agreement must be in writing. The agreement must also state in boldface type the following:
- The method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of a settlement, trial, or appeal;
- Whether litigation costs and other expenses are to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated;
- Whether the client is liable for expenses regardless of the outcome;
- That in the event of a loss, the client may be liable for the opposing party's attorney's fees and will be liable for the opposing party's costs as required by law; and,
- That a suit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process.
Whether or not the fee is based on a fixed rate or is contingent upon the outcome of the case, the attorney's fee must still be reasonable. The factors used for determining whether a lawyer's fee is reasonable is set forth in Rule 155 of the Nevada Supreme Court Rules. They are:
- The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- The fee customarily charged in the locality for similar legal services;
- The amount involved and the results obtained;
- The time limitations imposed by the client or by the circumstances;
- The nature and length of the professional relationship with the client;
- The experience, reputation and ability of the lawyer or lawyers performing the services; and
- Whether the fee is fixed or contingent.
IF THE CLIENT HAS A DISPUTE WITH THE ATTORNEY OVER THE ATTORNEY'S FEE, THE CLIENT MAY BRING A COMPLAINT BEFORE THE NEVADA FEE DISPUTE COMMITTEE.
DAMAGES
In legal terms, damages refers to losses suffered by a person or entity as a result of another's conduct. In order to legally recover for damages from another, the person seeking the recovery must prove that the conduct of the other was negligent. Damages are most commonly awarded by a judge or jury in the form of monetary compensation.
DEPOSITION
A deposition is a form of discovery in which a plaintiff, a defendant, or other witness that has relevant evidence about a lawsuit, is questioned under oath by an attorney for one of the parties. Although the deposition takes place outside the courtroom, and usually in the office of the attorney that requested the deposition, the testimony is given under oath and under penalty of perjury, just as if it were given at trial. The testimony given at the deposition is recorded by a court reporter, who then transcribes the deposition into written booklet form.
One of the most common ways the credibility of a witness can be questioned at trial is if the sworn testimony given by a witness at trial differs from the sworn testimony given at the deposition. It is therefore vitally important for the attorney to fully prepare the witness before the deposition to give truthful and accurate testimony at the deposition, and not to "volunteer" unnecessary or unrequested information to the other attorney.
Rule 33 of the Nevada Rules of Civil Procedure provides for the taking of a deposition as part of the discovery process.
DISCOVERY
Discovery is the process of obtaining relevant evidence that is not privileged information. In other words, if evidence is relevant evidence and not privileged information, it is "discoverable". Not all "discoverable" information is admissible evidence at trial, however.
Formal discovery can only be done when a lawsuit is on file, and after the defendant has filed an answer. The main forms of Discovery allowed by the Nevada Rules of Civil Procedure are the deposition, interrogatories, Requests for Admissions and Requests for Production of Documents.
Attorneys often squabble about just what is and what isn't "discoverable". Under the Nevada Rules of Civil Procedure, disputes about discovery are usually submitted to and resolved by the Discovery Commissioner instead of the Judge assigned to hear the case.
ECONOMIC DAMAGES
Economic damages refers to monetary losses incurred as a result of the wrongful act of another person or entity. Theses types of damages include loss of income or business, or property damage, and are considered to be "special", as opposed to "general" damages.
GENERAL DAMAGES
General damages are compensatory damages that have no definite way of measuring in monetary terms, such as pain and suffering. They are nevertheless compensable, and a judge or jury has a large measure of discretion in determining the amount to award for these damages. General damages are distinguished from special monetary damages, which juries or judges do have a way to definitely measure.
INDEPENDENT MEDICAL EXAMINATION
Commonly referred to by lawyers and insurers as an "IME", this is an examination performed by a doctor hired by one side to a lawsuit to give an opinion as to the existence or extent of a physical injury claimed by a party to a lawsuit or by someone making an insurance claim. Many insurance policies contain a provision that requires the insured to submit to an IME under certain circumstances when a claim for insurance benefits is made. In many instance, doctors hired by the insurance company have a "track record" of minimizing the person's injuries (thus minimizing the insurer's exposure for losses), and their opinions are anything but "independent". A person should never submit to an IME without the advice of a lawyer.
INSURANCE ADJUSTOR
Insurance adjustors are employees or independent contractors of insurance companies that have the job of settling insurance claims for as little as possible. The adjustor may by employed by your own insurance company ( a "first-party" context) or by the insurance company of the other person involved in an accident (a third-party" context). It is important to remember that the job performance of an adjustor is largely measured by the amount of money that person can save for their company.
MEDIATION
Mediation is a Alternate Dispute Resolution method where both parties to a legal dispute choose an independent person (or "third-party neutral") to assist the parties in reaching a mutual agreement. Usually the third-party neutral, or mediator, has formal mediation training, and may be a lawyer or judge. There are no formal requirements, though, as long as the third-party neutral is acceptable to both sides.
The mediation is non-coercive. That is, the process is completely voluntary. The third-party neutral does not make a decision as to who wins the case or how much, but only assists the parties in coming to an agreement. The parties can reach an agreement if they want to, or can continue on with the dispute if the mediation is unsuccessful. Most disputes that are mediated end up with a settlement of the dispute, however. A mediation can take place either before a lawsuit is filed, or during the pendency of a lawsuit.
There are numerous advantages to mediation over litigation. These advantages should be considered before a decision is made to resolve a legal dispute by traditional litigation.
WHAT IS MEDICAL MALPRACTICE?
Medical Malpractice is defined by N.R.S. 41A.009 as the "failure of a physician, hospital, or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances". This is the same standard used to determine whether conduct amounts to negligence.
MEDICAL PAYMENTS COVERAGE
This is an element of insurance coverage that provides coverage for "reasonable and necessary" medical bills incurred as a result of an auto accident. Medical payments coverage exists only in a "first-party" context. In other words, only your own insurer can provide medical payments coverage, and this type of coverage is not mandatory, as is liability coverage, which covers you for claims made against you by other persons. In Nevada the minimum amount of liability coverage is only $15,000.
NEGLIGENCE
Negligence is generally defined under Nevada law as "the failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances". The law does not require a person to be extraordinarily cautious or exceptionally skillful, but a person of "reasonable and ordinary prudence."
Minors and other persons with diminished capacity are not held to the same standard of care as adults, but only to the degree of care ordinarily exercised by minors and other persons of like age, intelligence and experience under similar circumstances. It is not considered negligent for someone to fail to anticipate that others will be negligent and that he or she will be injured as a result.
Negligence is a somewhat vague concept. Whether or not a particular person was negligent in a given situation is usually a determination for the finder of fact. Most simple automobile accidents where an injury occurs and fault is alleged involve claims of negligence.
It is not enough to conclude that a defendant failed to exercise due care in order to establish liability for damages sustained by the plaintiff. The plaintiff must also show that the failure to exercise due care by the defendant was the proximate cause of his or her damages.
Thus, in order to recover damages in a civil claim of negligence, the plaintiff must prove by a "preponderance of the evidence" (i.e. more likely than not) each of the following elements: 1. Duty to use ordinary care; 2. Breach of duty to use ordinary care; 3. causation; and, 4. damages. As in any case, the plaintiff has the burden of proof to prove each and every element of the claim.
NEVADA RULES OF CIVIL PROCEDURE
The Nevada Rules of Civil Procedure are the Court rules that govern the conduct of a civil lawsuit. They can be found at (link).
NEVADA SUPREME COURT
The Nevada Supreme Court consists of a chief justice and six associate justices. Each justice holds term for six years and is elected by the voters of the State of Nevada. Specific provisions relating to the composition and powers of the Nevada Supreme Court are contained in Chapter 2 of the Nevada Revised Statues.
Because Nevada does not have an intermediate Court of Appeals, all appeals are brought directly to the Nevada Supreme Court. The Nevada Supreme Court has enacted the Mandatory Settlement Conference Program, where civil cases on appeal are assigned to "settlement judges" who attempt to help the parties settle the matter using mediation techniques. This program has significantly reduced the backlog of cases pending before the Supreme Court.
OFFER OF JUDGEMENT
An Offer of Judgment is a formal offer made by one party to litigation to the other party to settle a lawsuit for a specified amount. The Offer of Judgment rule only applies when a lawsuit is on file.
Rule 68 of the Nevada Rules of Civil Procedure, as well as N.R.S. 17.115, provides that, at any time more than 10 days before the trial begins, one party may serve upon the other party a written offer to settle the lawsuit for a specified amount, including costs accrued as of that time. Once it is made, the Offer of Judgment stays open for 10 days and cannot be withdrawn during this period by the party making the Offer of Judgment. If the Offer of Judgment is not accepted within 10 days by the party to whom the Offer of Judgment is made, it is automatically withdrawn.
Either party to a lawsuit may make an Offer of Judgment to the other party. If the party to whom the Offer of Judgment is made does not accept the Offer of Judgment and then fails to obtain a more favorable result at trial than the amount of the Offer of Judgment, the refusing party is liable for the costs of the party making the Offer of Judgment and may be liable as well for the other side's attorney's fees.
Example No. 1: A defendant makes an Offer of Judgment to the plaintiff to settle a lawsuit for $10,000. The plaintiff feels this is not enough money, and decides to take his chances at trial. At the trial the plaintiff obtains a judgment of $9000. Because the amount obtained at trial was not "more favorable" than the amount set forth in the Offer of Judgment, the party that refused the Offer of Judgment (the plaintiff) must pay the costs of the party (the defendant) that made the Offer of Judgment, and may very well have to pay the attorney's fees of the party that made the Offer of Judgment.
Example No. 2: A plaintiff makes an Offer of Judgment to the defendant to settle a lawsuit for $10,000. The defendant feels this is too much money, and decides to take his chances at trial. At the trial the plaintiff obtains a judgment of $11,000.
Because the amount obtained at trial was not "more favorable" than the amount set forth in the Offer of Judgment, the party that refused the Offer of Judgment (the defendant) must pay the costs of the party (the plaintiff) that made the Offer of Judgment, and may very well have to pay the attorney's fees of the party that made the Offer of Judgment.
The purpose of the Offer of Judgment rule is to promote the settlement of lawsuits. The Offer of Judgment rule should be taken very seriously by the plaintiff. If a reasonable offer made by the defendant to settle a lawsuit is refused, the plaintiff that refused the Offer of Judgment could easily wind up owing money to the other party even though liability is clear and the plaintiff has suffered significant damages.
Example: A plaintiff brings a lawsuit after he has been rear-ended in a car accident by the defendant and sustained a personal injury. The plaintiff unreasonably refuses to accept an Offer of Judgment made by the defendant of $10,000 to settle the lawsuit and eventually obtains a judgment at trial of $5,000. The plaintiff must now pay the costs and attorney's fee of the defendant, which totals $7,000, so the plaintiff now winds up $2000 "in the hole" even though he or has suffered damages that were clearly caused by the negligence of the defendant.
PUNITIVE DAMAGES
Punitive damages can be awarded in a civil trial if the conduct of the defendant is determined by the finder of fact to be fraudulent, oppressive or malicious. Punitive damages cannot be awarded in cases where the conduct of the defendant amounts only to simple negligence. N.R.S. 42.005 authorizes the award of Punitive damages.
The purpose of an award of Punitive damages is not to compensate the plaintiff for damages, but to punish the defendant for their conduct and to deter others. In other words, they are designed to make an "example" of the defendant
RELEASE
A release is a legally binding document that typically "releases" a person for legal liability in exchange for payment of a specific sum of money. It is a common practice for an insurance adjustor to convince a person making a claim against their insured not to hire a lawyer and to accept a monetary settlement (often before the extent of that person's injuries are known) and to sign a release in return. Once a release is signed, the injured person can never make another claim against that person for the same accident, even if his or her injuries turn out to be much worse than originally thought.
SETTLEMENT
A settlement refers to the resolution of a claim or lawsuit at any stage before the actual jury verdict or arbitration award. Once a settlement agreement is reached it is binding on all parties. The attorney should seek a settlement that eliminates the risks of going to trial, but provides full and fair compensation for the client.
VENUE
Under N.R.S. 13.040, a lawsuit must be tried in the county where the defendants, or any one of them, resides at the commencement of the lawsuit. This is referred to as the proper "venue".
For example, if a lawsuit is filed in Washoe County District Court against a defendant that lives in Clark County, the Court may change the place of trial to Clark County, if the defendant demands in writing, before the time an answer is due, that the trial be moved.
The Court may also change the place of trial under N.R.S. 13.050 if the defendant can show that an impartial trial cannot be held in the original county, or if the "convenience of the witnesses" and "ends of justice" would be promoted by moving the trial.
If the lawsuit names more than one defendant, the trial can be held in any county where a defendant resides.
