This conflict was very well canvassed. If anyone had an objection, they had the right to bring it. IF anyone is familiar with the case the attorneys were not a bunch of wallflowers that would be afraid to speak up. This was a massive and complicated case, there surely are not a large amount of neutrals that had the capability to manage the mediation and likely an even smaller amount neutrals the parties could come close to agreeing on.
Academia throwing stones on hypothetical problems of their own making, rather than considering the real life circumstances leading to it. Maybe this enterprising professor will really do something about it and allow a 3L or two to dedicate 50 hours of their last year into a law review article for him.
12:52. Agreed. The article, and this professor in particular, are dealing with this problem from a very narrow legal, ethical and academic sense, while ignoring a couple huge elephants in the room which were:
1. In a case of this magnitude, each side(presumably) has a stellar legal team. If anyone had some serious objection they would have invoked it(as 12:52 details). They know their case. They know, or should know, what is best for their client. The attorneys decide what is best, not what some isolated, sheltered, ivory tower academians may opine on; and
(2) This is NOT some binding arbitration. This is mediation. No one has to agree on anything,if they wish to litigate the entire case. Attorneys on both sides appear to firmly believe that Judge T may be effective at helping them find some common ground, and/or helping to narrow certain issues(even if a complete settlement may not be reached).
So, let them do so. If they instead want to dump the judge and hire one of these professors to mediate the case(yeah, right), they can do so, but until then…
But did anyone tell the clients about the conflict? George was more than just an MGM employee he was a former FBI special agent and VP for Corporate Security Surveillance and Safety at the Mandalay Bay at the time of the shooting. If the case went to trial he could have been the NRCP 30(b)(6) witness for Mandalay Bay. No conflict??
I have served as a mediator. I my humble opinion there is an actual conflict. She may be actually neutral regarding issues involving her father (doubtful), but if so, it is the appearance of a lack of impartiality that controls. Certainly, the parties should have been informed and waived the potential conflict.
In a small legal community like Las Vegas it is hard to be conflict free so to speak. Don't the parties get to waive conflicts even in mediation?? I have had judges in cases mention their conflicts. They conflict off only to be assigned back by the Presiding Judge who said no conflict. I once had a case with Sheldon Adelson of the Venetian. Every District Court Judge assigned the case conflicted off except the last one. None of them were challenged or ordered to hear the case.
11:45 and 2:19 are right. It seems myopic for academic types to merely opine and conclude that this looks like a conflict(which, on the surface, yes it is) without doing a much deeper dive by considering the following, plus the excellent points made by other posters.
Regardless of how much info. the judge offered about this situation, it is presumed by now the attorneys know all the dynamics concerning her dad.
And, it being a mediation rather than a binding arbitration, the judge cannot decide anything the parties have not stipulated to. The attorneys believe this is someone who could be effective at helping them find some common ground, narrow disputes, and perhaps even resolve some components of the case. They may also believe she has far more knowledge and expertise in this narrow area than most neutrals, and thus the scope of viable neutrals to choose from is very limited.
And against that backdrop of her specialized knowledge, and it only being mediation, the seeming irony is that some attorneys may view what she may have learned over the years from her father, about such security matters, may have enhanced her knowledge in an area that very few neutrals are very adept at.
I'm not contradicting or debating 3:36's analysis, or that of the others.
Plus if this judge represented she had no discussions with her dad since she was selected for this role, I personally believe her without question.
But that's not really the point. Despite the degree that we qualify all of this-e.g full disclosure; it is mediation and not binding arbitration-her dad was apparently intricately and heavily involved with the one party, and in the precise capacity relevant to this case.
Who needs the case taint, and building possible error into the record if it doesn't settle. And, again, even if it is mediation, and thus non-binding, if matters don't settle and in fact heat up even more, don't be surprised at the types of things ultimately alleged(e.g. suspicions of certain communications, etc.)
Who needs this potential mess?.
I do get it that not too many neutrals may be well-versed in this narrow, specialized area, but still…
I feel like people are underestimating just how few neutrals would be considered up to the task of mediating such a complex, high-stakes case. Without the conflict, Judge Tog would've 100% been my only choice for the case. With the conflict, I probably would've tried to get my client to suck it up and hire an LA-based mediator. But I don't think waiving the conflict was an unreasonable decision under the circumstances.
Let's see, this is Las Vegas. Big, big money is involved. Eglet is involved. The mediator's father was intimately involved with one party. Why would Jennifer take this on?? Her husband is a very wealthy physician.
This article was so sloppily written that it uses the terms "mediation" and "arbitration" interchangeably. The "Model Standards for the Conduct of Mediators" has not been adopted in Nevada. However the very standards so cited hold " A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation." Guess what? Everyone knew who her father was because it was disclosed, discussed and waived.
Dana reads these comments and will sometimes weigh in. I hope she does so here. I will withhold judgment as to whether it was, in fact, a grotesque hit piece until she has an opportunity to defend what she did here.
Speaking to all the journos who read here, this brings up a major failing on the part of many of your colleagues. You should be far more wary of using a law professor as an expert to comment on a case than many of you are. Nearly universally, law professors have no experience practicing law, very little experience or distant experience. The law professor who trashed Judge Togliatti has both limited and distant experience. He hasn't practiced in over two decades. He did not really understand the case. Yet he had no problem not only shitting on Judge Togliatti, but making the absurd statement that this "is a very easy case." Only law professors and first years think so conclusively and so arrogantly. Most law professors have little to no actual understanding of how real world legal systems and processes work. If I were a journalist, I would never, ever use a law professor as an expert so long as I could find a practitioner with actual experience (which will be true for most stories).
Classic example of some ivory tower type from another jurisdiction spouting off about something he doesn't understand and pertaining to people he doesn't know.
Guest
Anonymous
October 9, 2023 7:19 pm
Ethics schmethics, this is Las Vegas baby and there's money to be made.
Guest
Anonymous
October 9, 2023 7:21 pm
The UNLV "picnic" debacle, by itself, is quite inconsequential. In a broader context, however, it leaves me concerned about the environment that exists at Boyd Law School. Law school is supposed to teach students to examine issues critically, to make no assumptions, and to challenge the assumptions that exist in an argument. Apparently, somebody, somewhere said that "picnic" is racist. Then, this club just took it at face value and went a step further and put out an apology. No one stopped to question whether "picnic" is racist, and could have resolved the etymology which a very quick Google search.
Real structural racism exists in this country. That racism creates real, tangible harm that we have a moral duty to address, especially as lawyers. Unfortunately, one of the forces creating headwinds for that effort are the priests and priestesses of the secular woke religion. The dogma of that religion has seized the academy, and the byproduct are not just embarrassing picnic guffaws at UNLV, but real, actual harm. There are too many people who wield baseless accusations of race as a means to personally empower themselves and destroy others. This needs to be called out more often.
We don't get to pick our own subjective truth regardless of whether it's the outcome of an election or the etymology of the word picnic. Obviously, Boyd Law itself didn't send the original picnic message, or apologize for it. That was a club. But Boyd Law is responsible for fostering an environment where the free flow of ideas thrives. Do you think that, even after this debunking, faculty and students feel free to use the word "picnic"? I suggest that most will choose the path of least resistance and never use the word again. By itself, that is inconsequential. But what happens when the woke police at UNLV shut down more consequential ideas, particularly on issues more important than picnics?
Boyd Law, I assume someone down there is reading this. From the perspective of a practitioner involved in hiring decisions, this is a really bad look.
Thank you for writing this 12:21. I appreciate the thought that went into it. Questioning how we know what we're about to say or act upon is so important.
12:27 — one of my favorites. "Never attribute to malice that which is adequately explained by stupidity." When i worked for the govt i often wanted to use this as my primary line of defense of our humble civil servants. When i did, i needed slightly more blunted terminology.
The ELS email is just the tip of the iceberg. I graduated this past May and these kinds of school-wide messages were common place, especially from NLG and ACS. I lost count of the amount of times NLG would send out a message that effectively read as "white people are invariably evil and we must acknowledge this every single day." We had multiple dramatic episodes during 2 and 3L year where someone would call them out for their bullshit. Then, it always ended the same way: 30-40 people dogpiling on the dissenter in the class group chat, shaming them for not having the same opinion. If you were even relatively conservatively-minded in class or another public environment, you would be talked down to and ostracized if you dared to share your perspective.
It would be good to release those emails, with names redacted, so that the public can have a better understanding of what's happening at the taxpayer funded law school. I am guessing that Boyd Law is not the paragon of pluralism that a public law school ought to be.
4:52 – It's important to recall, especially in this profession, that freedom of speech and freedom of association works both ways <3
Guest
Anonymous
October 9, 2023 7:50 pm
I'd just like to say … F the Dodgers
Guest
Anonymous
October 9, 2023 8:50 pm
The original Telles search protocol, i.e. give police and prosecutors full access, was absolutely ridiculous. Not sure what the judge was thinking.
Guest
Anonymous
October 9, 2023 9:32 pm
1:50-Any discussion on this blog about the Telles case disintegrates into one side insisting he is brilliant and will run rings around the prosecutors, while the other side essentially says WTF, are you kidding me!!??
But I think framing the debate in that fashion is to misplace the emphasis. Starting in the mid 90's, criminal juries tend to wordship at the altar on DNA evidence(the so-called CSI Effect or Syndrome, or whatever), and in this case there is really compelling DNA evidence from the struggle.
So, unless Telles' tactical brilliance extends to suppressing all the DNA evidence, the hand-writing seems to be pretty much on the wall if this proceeds to trial.
I guess there could be jury nullification of law type verdict if somehow a jury was assembled who largely despise the media and investigative journalists(such as the victim), but the possibility of that seems quite remote to me(but, obviously, I could be wrong).
Guest
Anonymous
October 9, 2023 9:49 pm
2:32, I don't think jury nullification of that type and magnitude is a realistic possibility to worry about.
I do agree that the DNA from the struggle(e.g. Defendant's DNA under German's fingernails, etc.), is likely all that is realistically needed to virtually guarantee conviction.
And that is the case even if for reasons, difficult to imagine at this time, that the jury never hears about the surveillance footage with Telles' vehicle in the immediate vicinity at that time; the footage of what appears to be Telles' in that road construction get-up; such road construction threads being found in Telles' house(which clothing also, will have DNA similar to that found on the scene and on German's person, etc.)
I agree it probably ultimately would not matter if somehow all that was kept from the jury, plus all jurors somehow forgot about all the earlier news coverage as to those factors, etc.
If the connect the dots is accomplished with the DNA found on German's person, and it is established as Telles' DNA, case over in my view.
Guest
Anonymous
October 9, 2023 9:56 pm
I've never once thought that the people writing things like "Telles is running circles around the DA" were being serious. At times they're committed to the bit, but it's always just a bit. I think the long play was to troll hard enough to get someone to write a post like 2:32. It worked.
2:56-The majority of them were trolls, but in each extended tread, at least one or two were clearly serious. You could tell by the detail, the earnestness, the sincerity, the limited legal and analytical skills, the naivety, plus a few of them(seemingly proudly) professed to know him pretty well(offering the mundane details of the relationship or connection, etc.) It's clear at least a handful were serious. That all said, I can't speak as to whether such posters were attorneys or not. They may just be attention-seeking wannabes.
But regardless of this blog, I have heard a small number attorneys argue how they think he may be acquitted(although they, admittedly, don't speak in terms of him annihilating the D.A., etc.)
Hope trumps realism over and over again for those in the criminal justice system.
Guest
Anonymous
October 10, 2023 2:48 am
Law Dawg
You censored a moderate discussion of the Israel situation.
But left the "F…the Dodgers" comment thereby offending my lifelong attachment to the Dodgers.
I appreciate your effort and work in maintaining this blog. But, you are going to have to decide, and publish, some kind of standard. Otherwise, this blog is purely arbitrary and not a place for the legal community to discuss, as has been stated elsewhere as its purpose. Views and opposing views are welcome, even if they are disliked by some. Crudeness and profanity are not welcome, even though you seem not to censor that kind of post.
From the river to the sea
From the windows to the walls.
https://www.ajc.org/translatehate/From-the-River-to-the-Sea
Who cares is a mediator has a conflict? They aren't making any decisions.
They are still supposed to be neutral
George T. wasn't a participant in the mediation. End of story. Or at least should have been.
This conflict was very well canvassed. If anyone had an objection, they had the right to bring it. IF anyone is familiar with the case the attorneys were not a bunch of wallflowers that would be afraid to speak up. This was a massive and complicated case, there surely are not a large amount of neutrals that had the capability to manage the mediation and likely an even smaller amount neutrals the parties could come close to agreeing on.
Academia throwing stones on hypothetical problems of their own making, rather than considering the real life circumstances leading to it. Maybe this enterprising professor will really do something about it and allow a 3L or two to dedicate 50 hours of their last year into a law review article for him.
12:52. Agreed. The article, and this professor in particular, are dealing with this problem from a very narrow legal, ethical and academic sense, while ignoring a couple huge elephants in the room which were:
1. In a case of this magnitude, each side(presumably) has a stellar legal team. If anyone had some serious objection they would have invoked it(as 12:52 details). They know their case. They know, or should know, what is best for their client. The attorneys decide what is best, not what some isolated, sheltered, ivory tower academians may opine on; and
(2) This is NOT some binding arbitration. This is mediation. No one has to agree on anything,if they wish to litigate the entire case. Attorneys on both sides appear to firmly believe that Judge T may be effective at helping them find some common ground, and/or helping to narrow certain issues(even if a complete settlement may not be reached).
So, let them do so. If they instead want to dump the judge and hire one of these professors to mediate the case(yeah, right), they can do so, but until then…
But did anyone tell the clients about the conflict? George was more than just an MGM employee he was a former FBI special agent and VP for Corporate Security Surveillance and Safety at the Mandalay Bay at the time of the shooting. If the case went to trial he could have been the NRCP 30(b)(6) witness for Mandalay Bay. No conflict??
I have served as a mediator. I my humble opinion there is an actual conflict. She may be actually neutral regarding issues involving her father (doubtful), but if so, it is the appearance of a lack of impartiality that controls. Certainly, the parties should have been informed and waived the potential conflict.
In a small legal community like Las Vegas it is hard to be conflict free so to speak. Don't the parties get to waive conflicts even in mediation?? I have had judges in cases mention their conflicts. They conflict off only to be assigned back by the Presiding Judge who said no conflict. I once had a case with Sheldon Adelson of the Venetian. Every District Court Judge assigned the case conflicted off except the last one. None of them were challenged or ordered to hear the case.
11:45 and 2:19 are right. It seems myopic for academic types to merely opine and conclude that this looks like a conflict(which, on the surface, yes it is) without doing a much deeper dive by considering the following, plus the excellent points made by other posters.
Regardless of how much info. the judge offered about this situation, it is presumed by now the attorneys know all the dynamics concerning her dad.
And, it being a mediation rather than a binding arbitration, the judge cannot decide anything the parties have not stipulated to. The attorneys believe this is someone who could be effective at helping them find some common ground, narrow disputes, and perhaps even resolve some components of the case. They may also believe she has far more knowledge and expertise in this narrow area than most neutrals, and thus the scope of viable neutrals to choose from is very limited.
And against that backdrop of her specialized knowledge, and it only being mediation, the seeming irony is that some attorneys may view what she may have learned over the years from her father, about such security matters, may have enhanced her knowledge in an area that very few neutrals are very adept at.
I'm not contradicting or debating 3:36's analysis, or that of the others.
Plus if this judge represented she had no discussions with her dad since she was selected for this role, I personally believe her without question.
But that's not really the point. Despite the degree that we qualify all of this-e.g full disclosure; it is mediation and not binding arbitration-her dad was apparently intricately and heavily involved with the one party, and in the precise capacity relevant to this case.
Who needs the case taint, and building possible error into the record if it doesn't settle. And, again, even if it is mediation, and thus non-binding, if matters don't settle and in fact heat up even more, don't be surprised at the types of things ultimately alleged(e.g. suspicions of certain communications, etc.)
Who needs this potential mess?.
I do get it that not too many neutrals may be well-versed in this narrow, specialized area, but still…
I feel like people are underestimating just how few neutrals would be considered up to the task of mediating such a complex, high-stakes case. Without the conflict, Judge Tog would've 100% been my only choice for the case. With the conflict, I probably would've tried to get my client to suck it up and hire an LA-based mediator. But I don't think waiving the conflict was an unreasonable decision under the circumstances.
Let's see, this is Las Vegas. Big, big money is involved. Eglet is involved. The mediator's father was intimately involved with one party. Why would Jennifer take this on?? Her husband is a very wealthy physician.
This article was so sloppily written that it uses the terms "mediation" and "arbitration" interchangeably. The "Model Standards for the Conduct of Mediators" has not been adopted in Nevada. However the very standards so cited hold " A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation." Guess what? Everyone knew who her father was because it was disclosed, discussed and waived.
Sorry Dana but this is a grotesque hit piece.
Dana reads these comments and will sometimes weigh in. I hope she does so here. I will withhold judgment as to whether it was, in fact, a grotesque hit piece until she has an opportunity to defend what she did here.
Speaking to all the journos who read here, this brings up a major failing on the part of many of your colleagues. You should be far more wary of using a law professor as an expert to comment on a case than many of you are. Nearly universally, law professors have no experience practicing law, very little experience or distant experience. The law professor who trashed Judge Togliatti has both limited and distant experience. He hasn't practiced in over two decades. He did not really understand the case. Yet he had no problem not only shitting on Judge Togliatti, but making the absurd statement that this "is a very easy case." Only law professors and first years think so conclusively and so arrogantly. Most law professors have little to no actual understanding of how real world legal systems and processes work. If I were a journalist, I would never, ever use a law professor as an expert so long as I could find a practitioner with actual experience (which will be true for most stories).
Classic example of some ivory tower type from another jurisdiction spouting off about something he doesn't understand and pertaining to people he doesn't know.
Ethics schmethics, this is Las Vegas baby and there's money to be made.
The UNLV "picnic" debacle, by itself, is quite inconsequential. In a broader context, however, it leaves me concerned about the environment that exists at Boyd Law School. Law school is supposed to teach students to examine issues critically, to make no assumptions, and to challenge the assumptions that exist in an argument. Apparently, somebody, somewhere said that "picnic" is racist. Then, this club just took it at face value and went a step further and put out an apology. No one stopped to question whether "picnic" is racist, and could have resolved the etymology which a very quick Google search.
Real structural racism exists in this country. That racism creates real, tangible harm that we have a moral duty to address, especially as lawyers. Unfortunately, one of the forces creating headwinds for that effort are the priests and priestesses of the secular woke religion. The dogma of that religion has seized the academy, and the byproduct are not just embarrassing picnic guffaws at UNLV, but real, actual harm. There are too many people who wield baseless accusations of race as a means to personally empower themselves and destroy others. This needs to be called out more often.
Bill Maher's show on Friday night covered this quite well: https://www.youtube.com/watch?v=HTMO2ooMLf8
We don't get to pick our own subjective truth regardless of whether it's the outcome of an election or the etymology of the word picnic. Obviously, Boyd Law itself didn't send the original picnic message, or apologize for it. That was a club. But Boyd Law is responsible for fostering an environment where the free flow of ideas thrives. Do you think that, even after this debunking, faculty and students feel free to use the word "picnic"? I suggest that most will choose the path of least resistance and never use the word again. By itself, that is inconsequential. But what happens when the woke police at UNLV shut down more consequential ideas, particularly on issues more important than picnics?
Boyd Law, I assume someone down there is reading this. From the perspective of a practitioner involved in hiring decisions, this is a really bad look.
Thank you for writing this 12:21. I appreciate the thought that went into it. Questioning how we know what we're about to say or act upon is so important.
Harlon's razor.
12:27 — one of my favorites. "Never attribute to malice that which is adequately explained by stupidity." When i worked for the govt i often wanted to use this as my primary line of defense of our humble civil servants. When i did, i needed slightly more blunted terminology.
12:21 here. Stupidity and malice are not mutually exclusive.
Already got that from your first post.
@ 12:21
Well said. As others have noted, Boyd is more of a self-promoting finger in the wind political machine than an educational institution.
The ELS email is just the tip of the iceberg. I graduated this past May and these kinds of school-wide messages were common place, especially from NLG and ACS. I lost count of the amount of times NLG would send out a message that effectively read as "white people are invariably evil and we must acknowledge this every single day." We had multiple dramatic episodes during 2 and 3L year where someone would call them out for their bullshit. Then, it always ended the same way: 30-40 people dogpiling on the dissenter in the class group chat, shaming them for not having the same opinion. If you were even relatively conservatively-minded in class or another public environment, you would be talked down to and ostracized if you dared to share your perspective.
Would be better if you post the body of the email so we can decide for ourselves.
It would be good to release those emails, with names redacted, so that the public can have a better understanding of what's happening at the taxpayer funded law school. I am guessing that Boyd Law is not the paragon of pluralism that a public law school ought to be.
October 9, 2023 at 4:52 PM reminds me why I have a certain bias about Boyd graduates. Strong is the Woke Force at Boyd.
4:52 – It's important to recall, especially in this profession, that freedom of speech and freedom of association works both ways <3
I'd just like to say … F the Dodgers
The original Telles search protocol, i.e. give police and prosecutors full access, was absolutely ridiculous. Not sure what the judge was thinking.
1:50-Any discussion on this blog about the Telles case disintegrates into one side insisting he is brilliant and will run rings around the prosecutors, while the other side essentially says WTF, are you kidding me!!??
But I think framing the debate in that fashion is to misplace the emphasis. Starting in the mid 90's, criminal juries tend to wordship at the altar on DNA evidence(the so-called CSI Effect or Syndrome, or whatever), and in this case there is really compelling DNA evidence from the struggle.
So, unless Telles' tactical brilliance extends to suppressing all the DNA evidence, the hand-writing seems to be pretty much on the wall if this proceeds to trial.
I guess there could be jury nullification of law type verdict if somehow a jury was assembled who largely despise the media and investigative journalists(such as the victim), but the possibility of that seems quite remote to me(but, obviously, I could be wrong).
2:32, I don't think jury nullification of that type and magnitude is a realistic possibility to worry about.
I do agree that the DNA from the struggle(e.g. Defendant's DNA under German's fingernails, etc.), is likely all that is realistically needed to virtually guarantee conviction.
And that is the case even if for reasons, difficult to imagine at this time, that the jury never hears about the surveillance footage with Telles' vehicle in the immediate vicinity at that time; the footage of what appears to be Telles' in that road construction get-up; such road construction threads being found in Telles' house(which clothing also, will have DNA similar to that found on the scene and on German's person, etc.)
I agree it probably ultimately would not matter if somehow all that was kept from the jury, plus all jurors somehow forgot about all the earlier news coverage as to those factors, etc.
If the connect the dots is accomplished with the DNA found on German's person, and it is established as Telles' DNA, case over in my view.
I've never once thought that the people writing things like "Telles is running circles around the DA" were being serious. At times they're committed to the bit, but it's always just a bit. I think the long play was to troll hard enough to get someone to write a post like 2:32. It worked.
🙌
2:56-The majority of them were trolls, but in each extended tread, at least one or two were clearly serious. You could tell by the detail, the earnestness, the sincerity, the limited legal and analytical skills, the naivety, plus a few of them(seemingly proudly) professed to know him pretty well(offering the mundane details of the relationship or connection, etc.) It's clear at least a handful were serious. That all said, I can't speak as to whether such posters were attorneys or not. They may just be attention-seeking wannabes.
But regardless of this blog, I have heard a small number attorneys argue how they think he may be acquitted(although they, admittedly, don't speak in terms of him annihilating the D.A., etc.)
Hope trumps realism over and over again for those in the criminal justice system.
Law Dawg
You censored a moderate discussion of the Israel situation.
But left the "F…the Dodgers" comment thereby offending my lifelong attachment to the Dodgers.
I appreciate your effort and work in maintaining this blog. But, you are going to have to decide, and publish, some kind of standard. Otherwise, this blog is purely arbitrary and not a place for the legal community to discuss, as has been stated elsewhere as its purpose. Views and opposing views are welcome, even if they are disliked by some. Crudeness and profanity are not welcome, even though you seem not to censor that kind of post.
F the Dodgers permitted when Kersh posts a 2023 post season 165 ERA (not an exaggeration, go look it up).
He's very, very hurt & shouldn't be pitching if the dodgers weren't down 5 other starting pitchers. But go off
His ERA is 162.0. And Kershaw said his health had nothing to do with his performance.