Have any of you had any experience with serving a very low Rule 68 offer as the defendant, then winning on liability? I have a case where the plaintiff is clearly just hoping to force a "cost of defense" settlement, and my client would rather win at trial and recoup fees and costs. I'd like to serve the absolutely lowest offer I can, which would still be sufficient to trigger the penalties when we beat it.
Any anecdotal evidence or caselaw would be greatly appreciated.
It's a good theory. But in the overwhelming majority of cases the plaintiff has nothing to lose and will never be able to satisfy a judgment for fees and costs. The plaintiff's lawyer might be out a few sheckels for his own costs; but the plaintiff's lawyer won't be responsible for your client's fees and costs if his client loses. And as a practical matter, you ain't getting anything from the plaintiff.
10:29 here. My client doesn't care. They are pissed off that they have been dragged into this, and they have the pockets to take this to the end. They will make this plaintiff's life miserable and force bankruptcy if necessary.
So the question remains: what is the lowest offer we can make and still satisfy the Beattie factors, when we intend to win on liability?
Tough to answer because it's fact dependent and "reasonableness" leaves a lot of room for district court discretion. Here's a a few Notes of Decisions created elsewhere but you should do your own research (and I don't recall how the deletion of NRS 18's OOJ rule may change this):
The denial of a title company's motion for attorney fees in action for alleged breach of duty to defend was not an abuse of discretion where offer to settle was low in light of damages sought and insured was not unreasonable in rejecting offer. Bidart v. American Title Ins. Co., 734 P.2d 732, 103 Nev. 175 (1987)
When considering motion for attorney fees in case in which nonstatutory offer of settlement has been rejected, district court must consider reasonableness of the rejected offer, including whether offeree eventually recovered more than rejected offer and whether offeree's rejection on reasonably delayed litigation with no hope of greater recovery. Cormier v. Manke, 108 Nev. 316 (1992).
A plaintiff who was struck by a vehicle brought negligence action against the driver was unreasonable in rejecting driver's $25,000 offer of judgment, so as to support award of attorney fees and interest to driver under the offer of judgment statute and rule after she obtained summary judgment; there was no allegation that pedestrian lacked access to evidence, factual record was developed, and causation and liability were strongly contested. Scott-Hopp v. Bassek, 2014 WL 859181 (unpublished)
I generally marry a low OOJ with an NRS 18.010(2)(b) reference that the matter was not brought with good cause. When you defense it, the Court will generally be open to cobbling those two things together to award fees and costs to the Defendant.
Guest
Anonymous
January 11, 2018 7:27 pm
10:29, check case A-14-701524-C. Small OOJ ($2500) served by Defendant who then won on a MSJ against Plaintiff. Crockett awarded fees and costs to the Defendant.
Might not have everything you're looking for, but it might help 🙂
Guest
Anonymous
January 11, 2018 7:38 pm
From a paid ad on Facebook by Janes Dean Leavitt:
Elana Lee Graham, a presumed ethical prosecutor and one of the MOST INEXPERIENCED candidates ever to run for judge, has already chosen to violate the campaign code of ethics, which Graham just signed 48 hours ago:
1. I will conduct my campaign openly and publicly and limit attacks against my opponent to legitimate challenges to his voting record or qualifications for office. VIOLATED
2. I will not use character defamation or other false attacks on a candidate’s personal or family life. VIOLATED
3. I will not use Campaign material which misrepresents, distorts or otherwise falsifies the facts, nor will I use malicious or unfounded accusations which are intended to create or exploit doubts, without justification, about personal integrity of my opposition. VIOLATED
4. I will not condone any dishonest or unethical practice which undermines the American system of free elections or impedes or prevents the full and free expression of the will of the voters. VIOLATED
Before selecting the next judge in Justice Court Department 1, please go http://www.LeavittForJudge.com and compare Elana Graham’s limited criminal experience to my 26 years and 12 years serving on the Nevada Board of Regents, including 2 years as Chairman of the Board.
Who is this man James Dean Leavitt? I've never heard of him. I saw the picture of him wearing what appear to be pajamas in public. It's odd. What law does he practice? Is he the best candidate for whatever position he wants?
So Letizia thinks its a good idea to accuse Graham of attacks on the record by making attacks on the record? Hypocrite. I don't know Graham (although I presume she is Ben and Elana's daughter). I know JDL. Clearly JDL has more experience but BS campaign garbage like this doesn't turn me on to a candidate but against a candidate.
She is Ben and Elana's daughter. Also, a google search shows her making cookies with them at the Legislature on Cookie Day. Doesn't mean anything as far as her suitability for a JP position, but I thought it was a fun photo.
It is. Dina is endorsing her. So is Mark Hutchinson. I am glad Cadish is okay with his stance on Israel. I as a Jew I'm not voting for her or him because of it.
Can you elaborate on the Israel comment? Whose stance on Israel and what is it? I haven't been able to find anything Israel-related with any of these people, and it's very important to me.
Guest
Anonymous
January 11, 2018 8:43 pm
I saw that photo on his website with him, in public, wearing what appears to be pink pajama bottoms designed with images of cartoon characters. That, in and of itself, disqualifies him from the seat, IMO, even if he is more experienced than his opponent(s).
The post at 11:38 insists that the one opponent has, within the last 48 hours, committed an unrelenting series of hideous ethical violations. So, I went to the website for clarification, but he never explains what parade of horrors the opponent actually participated in .
If he's so great and he is the presumed front runner, and this opponent is truly no more than token opposition, then why is he so concerned and aggressive right off the bat? Why immediately disparage her to that degree if he truly believes she is a completely inexperienced, callow, young,unelectable nobody?
The answer, of course, is that he appears quite frightened of her and is very fearful that she may in fact win.
Now that her campaign sees how easily and quickly he can be rattled, they may be wise to exploit such approach. He appears to be extremely reactive and extremely emotional. Zero confidence is being conveyed. IMO, all he is displaying so far is blind, unreasoning fear.
If he truly believes she is no more than token opposition, he should ignore her. Candidly, with his fair degree of political experience, I'm surprised he's running like a scared rabbit.
Could just be the crazy stuff that happens once someone who thinks they will be virtually anointed actually attracts opponents of arguable substance. Based on what I know of him, he should learn from this, calm down, and run a more measured, level-headed and competent campaign. Time will tell.
But he needs to ditch the pink pajamas or he will have no credibility with anyone except Barney, Mr. Rogers, Pee Wee Herman, etc.
There is a bit of irony in Letizia leading such an aggressively antagonistic campaign against the daughter of well-known local attorneys. The argument that Elana Graham is unqualified in 2018 based upon her resume as a prosecutor (Bar No. 11973) but my daughter was highly qualified in 2016 based upon her resume as a prosecutor (Bar Number 11633) is laughable. I hope Graham sticks this argument right up Leavitt and Letizia's place where the sun does not shine.
The statute says 5 years (Amber Candalaria Rule). Graham has been licensed 7 years, which is 1 more year than Letizia was licensed when she ran in 2016.
The minimum time rule (5 years for J.P/Muni, 10 for District and 15 for Supreme/CoA) is actually the Bonaventure rule. The Amber Candalaria rule concerns itself with how you count time (full years or any portion thereof).
Under the Bar Rules, Graham is an 9th year attorney. Under the Amber Candeleria precedent (126 Nev. 40 (2010)), she's an 8th year attorney at the time of the election.
Guest
Anonymous
January 11, 2018 9:26 pm
JDL's website has me and many other people listed on his endorsement page as an "Honorary Host Committee Member"
a. I don't know what that means
b. I never agreed to be anything for his campaign
c. Unless someone else gets in the race, I will be supporting Graham.
No; I just assume that's part of the normal campaign BS re identifying your supporters and endorsements. Such lists are usually identified as a "committee" supporting the candidate. Can't say I gave it any thought either way.
You were never contacted regarding such and never agreed? Any chance either of you would be willing to give that information to a group investigating this race?
She is going to lose because her last name is Graham. The more famous Graham stole millions. That will be the association made.
Guest
Anonymous
January 11, 2018 10:05 pm
Why do I get the feeling that one (possibly two) person who heavily frequents this blog has a serious ax to grind with Judge Cadish and therefore posts negative stuff every day to make it look like half the legal community is against her? This blog is the only place where I see constant crap flung at her. I wish there was a way to know if the same "Anonymous" is the one spewing all the venom.
Agree @2:05. It's also the same 1 or 2 negatively posting about Leavitt vs. Graham. Same 1 or 2 that negatively posted about Almase vs. Campbell. It's so transparent and annoying. The posts sound exactly the same in each instance, down to the wording, style, and punctuation. The truth of the matter is, no one cares…..except apparently those 1 or 2. Someone has WAY too much time on his hands.
Now if you ask the USAO, they would say that there are no snipers on the roof. And then you would ask them again and they would absolutely deny that there are snipers on the roof. And then three (3) years from now they would say that it was an honest mistake and that those are not really snipers, they are just long-range marksmen posted in discrete positions.
I am 5:52. I am actually supporting Cadish; I was merely saying that Aberasturi is a good judge also.
Guest
Anonymous
January 12, 2018 3:18 am
I have never posted about Cadish, either positively or negatively. I agree that it sounds like one or two ax grinders posting negatively about her. Anything I have heard about her directly from attorneys who have appeared before her (I have not) and had no reason not to be honest have had positive comments.
Have any of you had any experience with serving a very low Rule 68 offer as the defendant, then winning on liability? I have a case where the plaintiff is clearly just hoping to force a "cost of defense" settlement, and my client would rather win at trial and recoup fees and costs. I'd like to serve the absolutely lowest offer I can, which would still be sufficient to trigger the penalties when we beat it.
Any anecdotal evidence or caselaw would be greatly appreciated.
It's a good theory. But in the overwhelming majority of cases the plaintiff has nothing to lose and will never be able to satisfy a judgment for fees and costs. The plaintiff's lawyer might be out a few sheckels for his own costs; but the plaintiff's lawyer won't be responsible for your client's fees and costs if his client loses. And as a practical matter, you ain't getting anything from the plaintiff.
10:29 here. My client doesn't care. They are pissed off that they have been dragged into this, and they have the pockets to take this to the end. They will make this plaintiff's life miserable and force bankruptcy if necessary.
So the question remains: what is the lowest offer we can make and still satisfy the Beattie factors, when we intend to win on liability?
Tough to answer because it's fact dependent and "reasonableness" leaves a lot of room for district court discretion. Here's a a few Notes of Decisions created elsewhere but you should do your own research (and I don't recall how the deletion of NRS 18's OOJ rule may change this):
The denial of a title company's motion for attorney fees in action for alleged breach of duty to defend was not an abuse of discretion where offer to settle was low in light of damages sought and insured was not unreasonable in rejecting offer. Bidart v. American Title Ins. Co., 734 P.2d 732, 103 Nev. 175 (1987)
When considering motion for attorney fees in case in which nonstatutory offer of settlement has been rejected, district court must consider reasonableness of the rejected offer, including whether offeree eventually recovered more than rejected offer and whether offeree's rejection on reasonably delayed litigation with no hope of greater recovery. Cormier v. Manke, 108 Nev. 316 (1992).
A plaintiff who was struck by a vehicle brought negligence action against the driver was unreasonable in rejecting driver's $25,000 offer of judgment, so as to support award of attorney fees and interest to driver under the offer of judgment statute and rule after she obtained summary judgment; there was no allegation that pedestrian lacked access to evidence, factual record was developed, and causation and liability were strongly contested. Scott-Hopp v. Bassek, 2014 WL 859181 (unpublished)
I generally marry a low OOJ with an NRS 18.010(2)(b) reference that the matter was not brought with good cause. When you defense it, the Court will generally be open to cobbling those two things together to award fees and costs to the Defendant.
10:29, check case A-14-701524-C. Small OOJ ($2500) served by Defendant who then won on a MSJ against Plaintiff. Crockett awarded fees and costs to the Defendant.
Might not have everything you're looking for, but it might help 🙂
From a paid ad on Facebook by Janes Dean Leavitt:
Elana Lee Graham, a presumed ethical prosecutor and one of the MOST INEXPERIENCED candidates ever to run for judge, has already chosen to violate the campaign code of ethics, which Graham just signed 48 hours ago:
1. I will conduct my campaign openly and publicly and limit attacks against my opponent to legitimate challenges to his voting record or qualifications for office. VIOLATED
2. I will not use character defamation or other false attacks on a candidate’s personal or family life. VIOLATED
3. I will not use Campaign material which misrepresents, distorts or otherwise falsifies the facts, nor will I use malicious or unfounded accusations which are intended to create or exploit doubts, without justification, about personal integrity of my opposition. VIOLATED
4. I will not condone any dishonest or unethical practice which undermines the American system of free elections or impedes or prevents the full and free expression of the will of the voters. VIOLATED
Before selecting the next judge in Justice Court Department 1, please go http://www.LeavittForJudge.com and compare Elana Graham’s limited criminal experience to my 26 years and 12 years serving on the Nevada Board of Regents, including 2 years as Chairman of the Board.
Who is this man James Dean Leavitt? I've never heard of him. I saw the picture of him wearing what appear to be pajamas in public. It's odd. What law does he practice? Is he the best candidate for whatever position he wants?
So Letizia thinks its a good idea to accuse Graham of attacks on the record by making attacks on the record? Hypocrite. I don't know Graham (although I presume she is Ben and Elana's daughter). I know JDL. Clearly JDL has more experience but BS campaign garbage like this doesn't turn me on to a candidate but against a candidate.
Not a very measured, judicial response, if you ask me.
She is Ben and Elana's daughter. Also, a google search shows her making cookies with them at the Legislature on Cookie Day. Doesn't mean anything as far as her suitability for a JP position, but I thought it was a fun photo.
I am voting for neither.
Vinny Ginn for the win!
Is he running against these two power houses, he has my vote.
That is funny. The Grahams are going to buy a judgeship like Letizia did for Harmony. A Johnson is up next.
It is improper for an elected official to endorse a candidate. Graham endorsed Elissa Cadish. None of these people give a shit about bias.
It is. Dina is endorsing her. So is Mark Hutchinson. I am glad Cadish is okay with his stance on Israel. I as a Jew I'm not voting for her or him because of it.
Can you elaborate on the Israel comment? Whose stance on Israel and what is it? I haven't been able to find anything Israel-related with any of these people, and it's very important to me.
I saw that photo on his website with him, in public, wearing what appears to be pink pajama bottoms designed with images of cartoon characters. That, in and of itself, disqualifies him from the seat, IMO, even if he is more experienced than his opponent(s).
The post at 11:38 insists that the one opponent has, within the last 48 hours, committed an unrelenting series of hideous ethical violations. So, I went to the website for clarification, but he never explains what parade of horrors the opponent actually participated in .
If he's so great and he is the presumed front runner, and this opponent is truly no more than token opposition, then why is he so concerned and aggressive right off the bat? Why immediately disparage her to that degree if he truly believes she is a completely inexperienced, callow, young,unelectable nobody?
The answer, of course, is that he appears quite frightened of her and is very fearful that she may in fact win.
Now that her campaign sees how easily and quickly he can be rattled, they may be wise to exploit such approach. He appears to be extremely reactive and extremely emotional. Zero confidence is being conveyed. IMO, all he is displaying so far is blind, unreasoning fear.
If he truly believes she is no more than token opposition, he should ignore her. Candidly, with his fair degree of political experience, I'm surprised he's running like a scared rabbit.
Could just be the crazy stuff that happens once someone who thinks they will be virtually anointed actually attracts opponents of arguable substance. Based on what I know of him, he should learn from this, calm down, and run a more measured, level-headed and competent campaign. Time will tell.
But he needs to ditch the pink pajamas or he will have no credibility with anyone except Barney, Mr. Rogers, Pee Wee Herman, etc.
There is a bit of irony in Letizia leading such an aggressively antagonistic campaign against the daughter of well-known local attorneys. The argument that Elana Graham is unqualified in 2018 based upon her resume as a prosecutor (Bar No. 11973) but my daughter was highly qualified in 2016 based upon her resume as a prosecutor (Bar Number 11633) is laughable. I hope Graham sticks this argument right up Leavitt and Letizia's place where the sun does not shine.
Blog is getting repetitive.
Letizia is a hypocrite.
Has Elana Graham even been licensed long enough to run?
The statute says 5 years (Amber Candalaria Rule). Graham has been licensed 7 years, which is 1 more year than Letizia was licensed when she ran in 2016.
A seven year attorney should not be a judge.
The minimum time rule (5 years for J.P/Muni, 10 for District and 15 for Supreme/CoA) is actually the Bonaventure rule. The Amber Candalaria rule concerns itself with how you count time (full years or any portion thereof).
Under the Bar Rules, Graham is an 9th year attorney. Under the Amber Candeleria precedent (126 Nev. 40 (2010)), she's an 8th year attorney at the time of the election.
JDL's website has me and many other people listed on his endorsement page as an "Honorary Host Committee Member"
a. I don't know what that means
b. I never agreed to be anything for his campaign
c. Unless someone else gets in the race, I will be supporting Graham.
I am also listed there. In my case he specifically asked me if it was ok to do that, and I told him that it was.
Did you ask him what it means to be a "honorary host committee member"? What did he say?
No; I just assume that's part of the normal campaign BS re identifying your supporters and endorsements. Such lists are usually identified as a "committee" supporting the candidate. Can't say I gave it any thought either way.
Try to get a hold of Dave Thomas. My name is on there to endorse him when I did not.
You were never contacted regarding such and never agreed? Any chance either of you would be willing to give that information to a group investigating this race?
You should investigate the other judicial races as well.
She is going to lose because her last name is Graham. The more famous Graham stole millions. That will be the association made.
Why do I get the feeling that one (possibly two) person who heavily frequents this blog has a serious ax to grind with Judge Cadish and therefore posts negative stuff every day to make it look like half the legal community is against her? This blog is the only place where I see constant crap flung at her. I wish there was a way to know if the same "Anonymous" is the one spewing all the venom.
It's time for the blog to move to reddit.
Agree @2:05. It's also the same 1 or 2 negatively posting about Leavitt vs. Graham. Same 1 or 2 that negatively posted about Almase vs. Campbell. It's so transparent and annoying. The posts sound exactly the same in each instance, down to the wording, style, and punctuation. The truth of the matter is, no one cares…..except apparently those 1 or 2. Someone has WAY too much time on his hands.
People don't like these people. They are allowed to. Seems like you are paying too much attention to it.
Blog is repetitive. Blog is hijacked.
We missed you, 2:48.
The pro Cadish posts are all the same.
Veep in town today, at one of the buildings in the Hughes Center. Access the that building is blocked off and there are snipers on the roof.
Now if you ask the USAO, they would say that there are no snipers on the roof. And then you would ask them again and they would absolutely deny that there are snipers on the roof. And then three (3) years from now they would say that it was an honest mistake and that those are not really snipers, they are just long-range marksmen posted in discrete positions.
This was well done.
Cadish has a challenger– Judge Leon Aberasturi from the Third Judicial District. https://ballotpedia.org/Leon_Aberasturi
You have my support, sir.
Good news.
Have been in front of Aberasturi. Pretty good judge coming from the rurals.
3:36, 3:50, 4:36, 5:52 = same person
840, let it rest.
I am 5:52. I am actually supporting Cadish; I was merely saying that Aberasturi is a good judge also.
I have never posted about Cadish, either positively or negatively. I agree that it sounds like one or two ax grinders posting negatively about her. Anything I have heard about her directly from attorneys who have appeared before her (I have not) and had no reason not to be honest have had positive comments.
I don't agree.
This is comedy