Monday, April 28, 2014
Are There Special Court Procedures to Follow When a Minor is a Victim in an Accident in Las Vegas, Nevada?
When a minor is involved in a car, motorcycle or any other type of accident, they cannot hire an accident attorney on their own, unless they have been emancipated from their parents. For the typical child or teenager, their parent or guardian must be the one to hire the injury attorney on behalf of their minor child. A minor is anyone who is less than 18 years of age.
This means that the parent or guardian is the one who signs legal documents on behalf of their child. Additionally and more importantly, special procedures need to be followed when the case is settled. Specifically, the Court MUST approve any settlement that involves a minor. The law governing minors involved in personal injury accidents is set forth in Nevada Revised Statute, (“NRS”) §41.200.
NRS §41.200 provides in full:
NRS 41.200 Compromise by parent or guardian of claim by minor against third person; requirements of court petition; establishment of blocked financial investment for proceeds of compromise; no fees to be charged in proceedings.
1. If an unemancipated minor has a disputed claim for money against a third person, either parent, or if the parents of the minor are living separate and apart, then the custodial parent, or if no custody award has been made, the parent with whom the minor is living, or if a general guardian or guardian of the estate of the minor has been appointed, then that guardian, has the right to compromise the claim. Such a compromise is not effective until it is approved by the district court of the county where the minor resides, or if the minor is not a resident of the State of Nevada, then by the district court of the county where the claim was incurred, upon a verified petition in writing, regularly filed with the court.
2. The petition must set forth:
(a) The name, age and residence of the minor;
(b) The facts which bring the minor within the purview of this section, including:
(1) The circumstances which make it a disputed claim for money;
(2) The name of the third person against whom the claim is made; and
(3) If the claim is the result of an accident, the date, place and facts of the accident;
(c) The names and residence of the parents or the legal guardian of the minor;
(d) The name and residence of the person or persons having physical custody or control of the minor;
(e) The name and residence of the petitioner and the relationship of the petitioner to the minor;
(f) The total amount of the proceeds of the proposed compromise and the apportionment of those proceeds, including the amount to be used for:
(1) Attorney’s fees and whether the attorney’s fees are fixed or contingent fees, and if the attorney’s fees are contingent fees the percentage of the proceeds to be paid as attorney’s fees;
(2) Medical expenses; and
(3) Other expenses, and whether these fees and expenses are to be deducted before or after the calculation of any contingency fee;
(g) Whether the petitioner believes the acceptance of this compromise is in the best interest of the minor; and
(h) That the petitioner has been advised and understands that acceptance of the compromise will bar the minor from seeking further relief from the third person offering the compromise.
3. If the claim involves a personal injury suffered by the minor, the petitioner must submit all relevant medical and health care records to the court at the compromise hearing. The records must include documentation of:
(a) The injury, prognosis, treatment and progress of recovery of the minor; and
(b) The amount of medical expenses incurred to date, the nature and amount of medical expenses which have been paid and by whom, any amount owing for medical expenses and an estimate of the amount of medical expenses which may be incurred in the future.
4. If the court approves the compromise of the claim of the minor, the court must direct the money to be paid to the father, mother or guardian of the minor, with or without the filing of any bond, or it must require a general guardian or guardian ad litem to be appointed and the money to be paid to the guardian or guardian ad litem, with or without a bond, as the court, in its discretion, deems to be in the best interests of the minor.
5. Upon receiving the proceeds of the compromise, the parent or guardian to whom the proceeds of the compromise are ordered to be paid, shall establish a blocked financial investment for the benefit of the minor with the proceeds of the compromise. Money may be obtained from the blocked financial investment only pursuant to subsection 6. Within 30 days after receiving the proceeds of the compromise, the parent or guardian shall file with the court proof that the blocked financial investment has been established. If the balance of the investment is more than $10,000, the parent, guardian or person in charge of managing the investment shall annually file with the court a verified report detailing the activities of the investment during the previous 12 months. If the balance of the investment is $10,000 or less, the court may order the parent, guardian or person in charge of managing the investment to file such periodic verified reports as the court deems appropriate. The court may hold a hearing on a verified report only if it deems a hearing necessary to receive an explanation of the activities of the investment.
6. The beneficiary of a block financial investment may obtain control of or money from the investment:
(a) By an order of the court which held the compromise hearing; or
(b) By certification of the court which held the compromise hearing that the beneficiary has reached the age of 18 years, at which time control of the investment must be transferred to the beneficiary or the investment must be closed and the money distributed to the beneficiary.
7. The clerk of the district court shall not charge any fee for filing a petition for leave to compromise or for placing the petition upon the calendar to be heard by the court.
8. As used in this section, the term “blocked financial investment” means a savings account established in a depository institution in this state, a certificate of deposit, a United States savings bond, a fixed or variable annuity contract, or another reliable investment that is approved by the court.
What does NRS §41.200 mean in practice? First, your personal injury attorney will prepare what is called a “Petition to Compromise Minor’s Claim” (‘Petition’). This Petition will tell the court how the accident happened, the injuries the minor sustained and the medical bills that were incurred. After these and other background information are explained to the court, the court will decide if the settlement is in the best interests of the minor. If the court approves the settlement, then the net proceeds (after all bills are paid), must be placed in a blocked account with a financial institution.
This means that a parent or guardian cannot invest the funds or personally hold onto the funds for the minor child. Once the funds are placed in a blocked account, proof of the account must be then provided to the court. Only once that proof is provided to the court, will the Petition process be complete. When the minor child turns 18 years of age, the court will issue an order to the financial institute to release the funds to the now adult child.
Some parents and guardians find the process mandated by NRS §41.200 unnecessary. However, it is the law and must be followed. The main purpose of NRS §41.200 is protect minors from any unfair settlements or from a parent or guardian spending the money or badly investing the money, before the minor turns 18.
Next time, we will discuss what is a defense medical examination.
Monday, April 21, 2014
When you are injured a car accident and seek medical treatment, at some point, you will be released from active care. After clients have completed their active medical treatment, clients wonder what is the next step in their case. The first thing you should do is call or email your car accident attorney and let them know that you are done treating. Your attorney will then be able to contact your treatment providers and request your completed and updated medical records.
Once your final medical records are requested from your treatment providers, it usually takes 2 to 4 four weeks for your personal injury attorney to actually receive them. Upon receiving your final medical records, your accident attorney will thoroughly review them. After they have been reviewed, your attorney will prepare what is called a ‘Settlement Demand Package’ and send it to the at fault party’s insurance company.
The Settlement Demand Package outlines the accident, your injuries, your medical treatment and discuss settlement of your case. It generally takes approximately 1 to 2 weeks for your Settlement Demand Package to be prepared and sent to the at-fault party’s insurance company.
Once the insurance company receives the Settlement Demand Package, they usually respond within 3 to 4 weeks. So, from the time you stop treating, to the time the insurance company makes it initial settlement offer can take between 45 to 75 days. Your personal injury attorney will then negotiate with the insurance company and consult with you before any settlement offer is accepted.
Next time, we will discuss what happens when a minor is involved in an accident.
Monday, April 14, 2014
Clients sometimes ask what are the differences between mediation and arbitration. So, today we will discuss the similarities and contrasts between the two methods of alternative dispute resolution. Both are a means to resolve a civil legal dispute without the need to have a jury to decide your fate.
Mediation is an informal process, where the parties meet with an independent third party, called the mediator. The mediator attempts to bring the parties together to resolve their disputes. By contrast, arbitration is a more formal process, akin to a mini trial, where the parties present evidence and an arbitrator renders a decision. Since arbitration is more formal, the arbitrator issues a formal written decision concerning his findings. In personal injury cases, such as car accidents and slip and falls, mediation and arbitration are regularly used by your personal injury attorney to resolve disputes. Since they are so common, each will be discussed more in depth.
Mediation is something that the parties usually voluntarily enter to resolve their disputes. (Some courts have mandatory mediation prior to proceeding in court, but that is another topic for discussion.) In most cases, the parties pick a mutually agreeable mediator. The parties’ attorneys then prepare a confidential mediation brief. Prior to the start of mediation, the confidential brief is then read by the mediator. This way, the mediator knows each parties’ position and what they are looking to get out of mediation.
Once the date and time for the mediation is scheduled, the mediator meets with both parties in person. There is usually a joint session, where the mediator meets with all parties and their attorneys, to give an overview of the process and the mediator’s qualifications. The mediator will then ask one of the participants and their attorney to sit in a separate room, so the mediation can speak privately and candidly with the other party and their attorney.
By meeting with each party and their attorney separately, the mediator will attempt to bring the parties together towards a resolution. In a mediation, the mediator will usually go back and forth many times before an agreement is reached. If an agreement is reached, the parties will prepare a very simple agreement outlining the basics of the agreement, such as what the settlement amount is, and that it is inclusive of all fees and court costs. The parties will then prepare a very formal agreement and the case will be complete.
When it comes to arbitration, there are two types of arbitration, binding and non-binding. Today, will be discussing binding arbitration. The Southern Nevada Court system has a mandatory, non-binding arbitration system, for certain personal injury cases. Nevada’s non-binding arbitration program is an entire discussion itself and therefore will not be discussed today. Binding arbitration usually happens when there is contract the parties have signed, where they agreed to submit to arbitration instead of a costly litigation, to resolve their disputes. Additionally, the parties can simply decide and agree that they want an arbitrator to decide their dispute, which is very common in personal injury cases.
In both instances, the parties will pick an arbitrator to resolve their disputes. Sometimes, the parties have a three arbitrator panel. However, one arbitrator is usually enough, as long as that arbitrator is neutral and unbiased. Since both parties have to agree on an arbitrator, the arbitrator will be neutral, thus foregoing the need for a three arbitrator panel.
In arbitration, the parties will submit non-confidential briefs to the arbitrator, outlining the facts of the case and the applicable law. Since the legal briefs are non-confidential, each side must provide the opposing side a copy of their briefs. The parties will then attend the arbitration, which is usually held at the arbitrator’s office conference room. Here, the parties will be present their evidence, which the arbitrator will listen to before rendering a formal decision. If you are the injured party, that means you will be able to tell the arbitrator what happened in the accident, your treatment and the injuries you sustained. Once both parties have presented their case in a mini-trial, the arbitration will be over. In the next weeks, the arbitrator will issue a written decision, which will be mailed to the parties’ attorneys. The case itself will be over, with the arbitrator’s decision binding on the parties.
In summary, mediations and arbitrations, each have their benefits and risks. In mediation, if the parties cannot come to an agreement, then the case is left unresolved. However, if an agreement has been reached in mediation, the parties have controlled the outcome. In arbitration, the arbitrator can issue a decision, which one side may be less than happy with as a result. Yet, in arbitration, the parties have finality. Both are part of your personal injury attorney’s tool box, to be used to fit your particular case.
Next time, we will discuss what happens after you complete your medical treatment.
Friday, April 4, 2014
Whether someone is deemed an expert in court in Las Vegas, Nevada, is based upon a variety of factors. These factors are laid out in Nevada’s statutes, which are created by the state legislature and case law, which is written by our Nevada Supreme Court. There are three main Nevada statutes which govern experts. We will take a look at each one, including their case law counterparts.
The first we will take a look at is NRS 50.275 entitled “Testimony by experts”. It provides in full:
If scientific, technical or other specialized knowledge will assist the trier of the fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.
The Nevada Supreme Court has held that an expert witness need not be licensed to testify as a expert. Freeman v. Davidson, 105 Nev. 13, 768 P.2d 885 (1989). The witness must simply possess “special knowledge, skill, experience, training or education” relating to the subject matter. Hanneman v. Downer, 110 Nev. 167, 871 P2d 279 (1994). Importantly, as it relates to the qualifications of this expert, an expert witness may be qualified by on-the-job-training and experience. Emmons v. State, 107 Nev. 58, 807 P2d 718 (1991). Once an expert is qualified, she may testify as to all matters within her experience or training, and the expert is generally given reasonably wide latitude in the opinions and conclusions she can state. Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992).
As explained in several Nevada cases, the threshold test for admissibility of expert testimony by a qualified expert is whether the expert’s specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. Yamaha Motor Co. v. Arnoult, 114 Nev. 233, at 243 (1998) and the cases cited therein.
In Yamaha Motor Co., the Nevada Supreme Court adopted the more reasoned approach in allowing the use of experts by rejecting the doctrine of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) that required a trial court to engage in “gatekeeping” to ensure that all of the proposed expert witness testimony was based entirely upon accepted “scientific knowledge.” Rather in Yamaha, supra, the Nevada Supreme Court found that admissible expert testimony may also be derived from “specialized knowledge” that may not entirely be governed by scientific method.
The second statute pertaining to experts, is NRS 50.285. Once the court determines the expert is qualified to testify, this statute discusses what types of materials the expert can rely on. NRS 50.285 entitled “Opinions: Experts” provides:
1. The facts or data in the particular cases upon which an expert bases his
opinion or inference may be those perceived by or made known to him at or
before the hearing.
2. If of a type reasonably relied upon by experts in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Based upon NRS 50.285, an expert can rely on most anything, even if it is not admissible in court or if it new information that the expert just found out about.
The third and final statute on expert opinions, is NRS 50.295 entitled “Opinions; Ultimate Issues” and provides:
Testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier
A “finder of fact” is the jury if it is a jury trial, and a judge if no jury is involved. In this statute, the Nevada state legislature determined that an expert is allowed to testify concerning topics that the jury (or judge, if no jury is present) will ultimately decide. Hopefully, today’s discussion will give you a better understanding of how an expert is qualified to testify in Las Vegas, Nevada courts.
Next time we will discuss differences between mediation and arbitration in Las Vegas, Nevada.