Monday, July 9, 2018
Today’s topic follows-up on last month’s blog of jury selection in civil personal injury cases. By way of background, in regular Las Vegas civil jury trials, lawyers for each side are allowed to cross 4 potential jurors off the final juror list. How does this work?
A list of the juror finalists is passed back and forth between both sides, each side able to cross off a person one at a time. The remaining members of the jury panel are then sworn into the juror panel for the personal injury case. This assumes that you have a fair and impartial jury. What do you do if you believe a juror is unable to be fair and impartial?
As discussed in previous posts, you can use your peremptory challenges, which allows for each side to strike 4 potential jurors. See NRS 16.040. However, you cannot use your peremptory challenges for an improper purpose. As if there wasn’t enough use of the word “challenges”, to confuse matters, if you use your ‘peremptory challenge’ improperly, the other side can ‘challenge’ your lawyer’s position with a “Batson challenge.”
The term “Batson Challenge” actually comes from the 1986 U.S. Supreme Court case of Batson v. Kentucky, 476 U.S. 79 (1986). There, the court ruled that a prosecutor’s use of a peremptory challenge in a criminal case, without stating a race neutral justification, violated the Equal Protection Clause of the Fourteenth Amendment. This coined the term “Batson challenge”. A Batson Challenge is therefore an objection to a peremptory challenge, based on race or gender. Later cases expanded the law to civil cases.
A more recent Nevada Supreme Court case discussing the issue was Ford v. State. 122 Nev. 398, 404 (2006). Although it too was a criminal case, it has relevance to civil cases and personal injury trials. In discussing the prosecution’s use of a potentially improperly striking a potential juror, our high court stated “[T]he persuasiveness of the State’s explanation is relevant. The district [trial] court must determine whether the opponent of the peremptory challenge has met the burden of proving purposeful discrimination. An implausible or fantastic justification by the State may, and probably will, be found to be a pretext for intentional discrimination. Citing Kazcmarek v. State, 120 Nev. 314, 332 (2004).
The take away from the case law is that while each side can strike 4 potential people from the jury panel, they are not allowed to strike all women or members from a specific racial background. Otherwise, your personal injury attorney will call foul and make a Batson Challenge.
Next time we will discuss the scope and limits of jury selection.
Monday, June 11, 2018
In an ideal world, everyone who steps into the jury box will listen to all of the evidence objectively and render a fair and unbiased decision. We do not live in a perfect world. Sometimes lawyers must challenge a potential juror for a legal cause.
The law on Challenges for Cause is located in Nevada Revised Statute §16.050. The statute discusses when a potential juror can be struck off jury panel for cause. The usual suspects of striking someone for cause are for someone who is related to the parties or has an interest in the particular case. Simple and easy to get someone off the juror panel who is a friend or family member of one the parties. The more subtle aspects of the statute are contained within its last two sections:
(f) Having formed or expressed an unqualified opinion or belief as the merits of the action, or the main question involved therein, but the reading of newspaper of the subject matter before the court shall not disqualify a juror either for bias or opinion.
(g) The existence of a state of mind in the juror evincing enmity against or bias to either party.
An example of bias is when a potential juror states that they do not believe anyone should make a personal injury claim in a court of law. Once a challenge for cause is made for this juror, defense counsel and sometime judges, attempt to rehabilitate the potential juror. The potential juror is asked if they can set aside their bias and follow the law as instructed. As Chief Justice John Marshall said:
Why do personal prejudices constitute a just cause of challenge? Solely because the individual who is under their influence is presumed to have a bias on his mind which will prevent an impartial decision of the case, according to the testimony. He may declare that notwithstanding these prejudices he is determined to listen to the evidence, and be governed by it; but the law will not trust him… He will listen with more favor to that testimony which confirms, than to that which would change his opinion; it is not to be expected that he will weigh the evidence or argument as fairly as a man whose judgment is not made up in the case. U.S. v. Burr, 25 Fed.Cas. 49, 50 (C.C.D. Va. 1807).
Justice Marshall’s observations hundreds of years ago still hold true today. When a juror says that they are biased, but that they will put their bias aside and listen to the evidence, really has no basis in the root of human nature. The issue of trying to rehabilitate a potential juror is a big issue in Las Vegas trials and is fought each week in front of the judge and juries.
Next time we will discuss what a ‘Batson Challenge’ is for potential jurors.
Wednesday, May 9, 2018
Today’s topic is a follow-up to last month’s topic on juror misconduct. Although it was an unpublished opinion, Nevins v. Martyn discussed and cited to Nevada Supreme Court case law on juror misconduct. See Nevins v. Martyn Docket No. 69249 (Order of Remand, Dec. 27, 2016).
Nevins v. Martyn was a medical malpractice case. Prior to the start of trial, during the jury selection process of voir dire, potential jurors were asked if anyone was in the medical profession or had a close family member who was in the medical field. Anyone with a personal or family medical background was weeded out of the juror panel. Thinking they had a fair and impartial jury, the case proceeded to trial.
However, after the verdict came back, two jurors said that a third juror told the others that her mother was in fact a doctor. Surprised that someone with a close family member was a doctor, they informed the Court. Since this person was not a fair and impartial juror, the lawyers asked for a new trial.
In discussing the case law, the Appellate Court stated that the presence of a biased juror on the jury panel demonstrates prejudice supporting a new trial. Sanders v. Sears-Page, 131 Nev. at _, 354 P.3d at 208-09. Sanders (Ct. App. 2015).
The Court went on to say that a party moving for a new trial based on juror misconduct, must present admissible evidence establishing 1) misconduct and 2) prejudice. Bowman v. State, 132 Nev. _, _ P.3d _ (2016); Hale v. Riverboat Casino, Inc., 100 Nev. 299, 305, 682 P.2d 190, 193 (1984) (abrogated on other grounds). The Court noted that where the moving party alleges a juror engaged in misconduct by withholding information "touching upon his qualification," the withholding "must amount to intentional concealment" to warrant a new trial. Hale, 100 Nev. at 305, 682 P.2d at 193.
If you read last month’s blog post, you will see that this is different standard of law on the same topic. Namely, the standard for requesting a new trial based upon juror misconduct. In my reading of the case, I believe the Appellate Court may have cited to the incorrect standard on jury misconduct.
If you read the case cited by the Appellate Court, Bowman v. State, it actually deals with an instance where two jury members conducted their own independent investigation of the defense’s theory of the case. Bowman v. State dealt with classic juror misconduct.
In contrast, Nevins v. Martyn concerned a biased juror who failed to disclose her bias to the court during the jury selection process. In looking at the facts of both underlying Nevada Supreme Court cases, it makes sense that there would be different standards. Perhaps the Nevada Supreme Court will clarify this issue in the future. Until then, happy reading if you would like to examine both cases for yourself: Bowman v. State & Nevins v. Martyn
Next time we will discuss the legal standard for a challenge for cause of a potential juror.
Wednesday, April 18, 2018
Recently, both the Nevada Supreme Court and Nevada Court of Appeals each came out with case law discussing the standard of law for juror misconduct, during the jury selection process of voir dire. However, both cases cite to a different standard on when you get a new trial based on juror misconduct. At first, I thought one was relating to juror misconduct, while the other dealt with juror bias. But, both actually deal with juror misconduct, as it relates to bias.
The two cases cite to different standards of law on the same topic. You might be saying to yourself, that since one was a Nevada Supreme Court case, it would control over the Appellate Court case. But, the Appellate case cited to another Nevada Supreme Court case on the issue.
I then thought to myself, that since one was a civil case and the other a criminal case, that could potentially be the singular difference. But, I believe the criminal case could still be used to argue why you should get a new trial. Additionally, the holding did not categorically say it only applied in the criminal context. Hence you see my quandary.
In the end, I decided to create two separate blog posts on the issue. I concluded that the Appellate Court cited to the wrong standard. The Nevada Supreme Court’s case on juror misconduct related to bias is one standard. However, true juror misconduct on doing independent investigations, is a different standard.
You can decide for yourself on these issues. People, and especially lawyers, tend to look at the same thing and disagree. Practicing law is an art and art is subjective. This is where the fun and beauty of the law resides. But enough of my meanderings.
Looking into the Nevada Supreme Court case, we come to Brioady vs. State of Nevada. Although it was a criminal case, it has implications for civil personal injury trials in Nevada. See 133 Nev., Adv. Opinion 41 (2016).
As you may know, one of the first events to take place in a trial, is where group of potential jurors are asked questions to determine if they could be fair and unbiased. This is the jury selection process, called voir dire.
During this initial questioning process, the Brioady trial judge told the potential jurors of the importance of giving full and honest answers to any questions asked. When asked, "Has anybody been a victim of a crime? many people who responded said Yes. A person in the jury pool, who would later be Juror No. 3, was silent. The case centered around allegations of molestation. The prosecution extensively questioned the potential jurors who had been molested, if they could actually be impartial.
After the defendant was convicted of molestation, two of the jurors informed his lawyer that Juror No. 3 told them, once they were back in the jury deliberation room, that she had in fact been a victim of molestation, but failed to bring it to the court’s attention. Juror No. 3 claimed she did not volunteer that fact, because she believed she could be a fair and impartial juror and did not consider herself to be a victim. The case was ultimately appealed to the Nevada Supreme Court. The high court had to determine if Juror No. 3’s failure to honestly answer questions, prevented the defendant from receiving a fair and impartial trial, necessitating a new trial.
In discussing the law on the request for a new trial, on the basis of juror misconduct during voir dire (jury selection process), the court noted that a defendant must demonstrate (1) that the juror at issue failed to honestly answer a material question, and (2) that a correct response would have provided a valid basis for a challenge for cause. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see also Lopez v. State, 105 Nev. 68, 89, 769 P.2d 1276, 1290 (1989). Based on the facts of this case, the high court felt that the defendant wasn’t given a fair and impartial jury panel and that the whole trial had to be re-done.
With respect to the "honesty" prong of this inquiry, the court noted that "[t]he motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." United States v. Edmond, 43 F.3d 472, 473 (9th Cir. 1994) (quoting McDonough, 464 U.S. at 556). Generally, this "determination ... turns upon whether or not [a juror] is guilty of intentional concealment." Lopez, 105 Nev. at 89, 769 P.2d at 1290 (quoting Walker v. State, 95 Nev. 321, 323, 594 P.2d 710, 711 (1979)).
In this situation, the court felt that the question of Juror No. 3’s ability to be impartial was not a determination for her to make. In reviewing the post-trial record, the high court noted that her incident of molestation was serious enough that Juror No. 3 discussed the incident with a therapist as an adult. Juror No. 3 also still regarded the molestation as a "serious secret." Juror Three's testimony at the post-trial hearing demonstrated that she knowingly failed to honestly answer a question during voir dire.
Given the nature of the allegations in this case, a truthful response by Juror No. 3 would have very likely provided a basis for a challenge for cause. Based upon Juror No. 3’s misconduct, the Nevada Supreme Court concluded that a new trial was warranted.
Next time we will continue on this topic of juror misconduct and bias.
Thursday, March 8, 2018
Is Constructive Notice of a Dangerous Condition a Question for the Judge or Jury in Las Vegas Personal Injury Trials?
Slip, trip and fall cases are a unfortunate reality in Las Vegas. Whether you are on a vacation from another state or live in this wonderful city, people suffer serious injuries when they slip or trip on a dangerous condition. The great part of having our new court of appeals is that they can quickly and efficiently rule on issues at the lower, trial court level.
Cox is a household name in Las Vegas. Cox was sued when Mazal Chasson-Forrest tripped over a hole on a sidewalk cable vault lid. Chasson-Forrest v. Cox Communications Las Vegas, Docket No. 70264 (Order of Reversal, Mar. 31, 2017).
After her fall, Ms. Forrest hired a local Las Vegas personal injury lawyer. Her attorney filed a lawsuit against Cox, seeking to hold them responsible for her injuries. However, before the jury could hear the case, Cox argued to the judge, that it could not be held liable for Ms. Forrest’s injuries. Cox argued that it did not have either actual or constructive notice of the hazardous condition (i.e., the hole in the vault lid).
In support of its argument that it could not be held liable, Cox claimed that there was no evidence that the vault at issue was previously vandalized or otherwise damaged. Cox further pointed out, that no one else besides Ms. Forrest had been injured on this particular vault. As result, Cox tried to argue that it lacked both actual knowledge of the hole, as well as legal, constructive knowledge.
In an effort to refute Cox’s claims of “no notice” Ms. Forrest’s lawyers showed that (1) approximately 30% of cases against Cox involve hazardous vault lids; (2) Cox is aware that vault lid vandalism occurs; (3) because damage to vault lids does frequently occur and can be hazardous, Cox field technicians carry extra vault lids while responding to field calls; and (4) expert opinion established that due to Cox's failure to systematically monitor vault lids, unsafe and dangerous conditions remain unreported and uncorrected.
The trial court rejected Ms. Forrest’s lawyer’s arguments and let Cox off the hook for Ms. Forrest’s injuries. The lower court stated that since Cox didn’t actually know about this specific vault cover hole, it was not responsible for Ms. Forrest’s injuries. A as a result, Ms. Forrest’s personal injury lawyers, appealed the decision to the appeals court.
After reviewing the facts, the Nevada Court of Appeals took a look at the applicable case law. The appellate court first noted that generally in personal injury cases, the question of negligence is a question of fact for the jury to decide. See Rodriguez v. Primadonna Co., LLC, 125 Nev. 578, 584, 216 P.3d 793, 798 (2009).
In a slip and fall action, business owners are liable when their agents cause the hazard. Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322 (1993). However, when the hazard is caused by someone other than the business or its agents, "liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it." Id., 849 P.2d at 322-23.
The appeals court noted that the business owner may have constructive notice of a hazardous condition, if a reasonable jury could determine, that based on the circumstances of the hazard, the defendant should have known the condition existed. See Id. at 323, 849 P.2d at 250- 51. "Whether [the defendant] was under constructive notice of the hazardous condition is, in accordance with the general rule, a question of fact properly left for the jury." See Id. at 322, 849 P.2d at 323; see also Paul v. Imperial Palace, Inc., 111 Nev. 1544, 1549, 908 P.2d 226, 230 (1995).
In taking an objective view of the evidence and applying it against the law, the appeals court determined that the trial judge was wrong in letting Cox out of the case. The Nevada Court of Appeals determined that Cox had constructive notice of the hole in the vault lid in question and a reasonable jury could find Cox had constructive notice. Citing Wood, 121 Nev. at 729, 121 P.3d at 1029; Cf. Sprague, 109 Nev. at 250-51, 849 P.2d at 323.
The end result is that actual or constructive notice of a dangerous condition is a question for the jury, not the judge to decide.
Next time we will discuss whether jury bias warrants a new trial.
Thursday, February 8, 2018
In most clear liability car accidents, the biggest issue is whether the car crash caused the alleged injuries. In a recent Las Vegas personal injury trial, the defense lawyers tried to attack the injured party’s medical treatment. The issue was that they did not have any medical evidence to support their attacks. Reyes v. Neives: Docket No. 69724 (Order of Affirmance, Feb. 28, 2017).
The Nevada Court of Appeals had to determine whether the trial court made the right call by preventing the defense lawyers from cross-examining the injured party on the reasonableness and necessity of her medical treatment and costs.
The first thing the appellate court did was note that the trial court has wide discretion in determining whether to allow the jury to hear evidence. See State ex rel. Dep't of Highways v. Nev. Aggregates & Asphalt Co., 92 Nev. 370, 376, 551 P.2d 1095, 1098 (1976). In discussing the issue, the court noted that Nevada law is clear that a party "is not entitled to build a case on the gossamer threads of whimsy, speculation, and conjecture." Wood v. Safeway, Inc., 121 Nev. 724, 732, 121 P.3d 1026, 1031 (2005).
In the end, the higher court determined that issues of reasonableness and necessity of medical treatment and costs, required knowledge beyond that which a layperson would possess. To support her case, the injured party submitted evidence showing that injuries were caused by the accident and that her medical bills were necessary and reasonable. The injured person also put forth the evidence to the court’s legal standard of a “reasonable degree of medical probability”.
By contrast, the defending party didn’t have any contrary medical evidence. Before the trial started, the judge granted the injured party’s request to prevent the defense attorney from cross examining her on the reasonableness and necessity of her medical treatment. The trial court based its decision on the fact, that in the time leading up to trial, a party has to disclose all of its evidence. In this case, the defense didn’t hire any medical expert or have any evidence to refute the injured party’s medical treatment. The appellate court felt that the trial judge made the right decision.
Next time we will discuss whether constructive notice of a dangerous condition is a question for the judge or jury to decide.
Wednesday, January 10, 2018
When a party loses important evidence, Las Vegas courts are tasked with determining what penalties should be assigned to the negligent party. A common example typically goes as follows: You slip and fall in a local Las Vegas store, sustaining serious injuries. The store is equipped with video cameras and you believe the video footage will show what happened in the fall. Immediately after your fall, you hire a Las Vegas personal injury attorney, who puts the store on notice to preserve all of the evidence of your fall, including all videos.
The store refuses to take any responsibility for your injuries, so your personal injury attorney files a lawsuit on your behalf. During the exchange of documents and evidence, the store suddenly says that they no longer have the video.
In the legal world, this is called “spoliation of evidence”. In this example, your personal injury attorney will ask the Court let the jury know about this missing evidence. The Court may direct the jury to assume that had the evidence been saved, it would have been favorable to the injured party. The logic behind this stems from the premise that if the evidence was beneficial to the negligent party, they would have actually kept the favorable evidence.
In a recent case from our Court of Appeals, the court was tasked to determine the effect of the hospital and cleaning company’s failure to keep important documents. Waters-Maria v. Valley Health Systems, LLC, No. 69455 (Nev. 2017).
In the Valley Health Systems case, a person slipped and fell on a wet floor in a hospital restroom. When neither the hospital nor the cleaning company took responsibility for the injured party’s fall, she filed a lawsuit. During the court process, the injured person’s lawyer determined that the cleaning company didn’t keep any of their cleaning records. The lawyer argued that the cleaning records would have showed negligence on the part of the cleaning company.
Once trial was done and case was to be submitted to the jury for their decision, the injured party’s attorney asked for an adverse inference instruction for the discarded cleaning assignment documents. The trial court refused to give the jury the proposed instruction. In the end, the jury found in favor of the hospital and cleaning company.
In discussing its decision, the appeals court cited to the following relevant case and statute:
- NRS 47.250(3) creates a rebuttable presumption that evidence intentionally destroyed to harm another party would be adverse if produced. Bass-Davis v. Davis, 122 Nev. 442, 448-450, 134 P.3d 103, 106-08 (2006). However, if "evidence is negligently lost or destroyed, without the intent to harm another party[,] [i]nstead, an inference should be permitted." Id.
What does this mean for Las Vegas personal injury cases? Your personal injury attorney should bring up missing documents to the court’s attention as soon as possible.
Next time, we will talk about cross examining an injured person on their treatment at the time of trial.