In a week where MGM was dominating the press with bad headlines, the RJ and AP are trying to get in on the action by pursuing attorney fees under the Anti-SLAPP statute from the widow of the Metro officer who was killed on October 1. [LasVegasNow]
The Vegas Golden Knights and the US Army entered into a trademark coexistence agreement. [RJ]
Stephen Stubbs is making headlines again by identifying an admitted child molester on Facebook and YouTube because DA Steve Wolfson has, so far, declined to press charges. [Nevada Current]
I think this is a dumb move from a PR point of view, but why is it disgusting? I am not a 1A lawyer but I know seeking these kinds of injunctions against the press are arguably frivolous. Why is it disgusting to seek attorneys' fees incurred in defending against frivolous claims?
I thought that the RJ, a paper generally fit only for wrapping fish, was on the right side of the underlying case. But the widow had a legitimate argument. Certainly not frivolous. Pursuing fees in such a case really smacks of piling on. They should be ashamed of themselves.
To be fair, the story seems to indicate that the RJ and AP are pursuing Tony Sgro for the fees and not necessarily seeking to get the money from Mrs. Hartsfield.
10:23 here. Like I said, this isn't an area I know much about, so if the argument wasn't frivolous then maybe not a good move. I am coming from a commercial context, where prevailing parties basically move for fees as a matter of course. That makes the outrage from lawyers a little surprising to me.
Prevailing parties in a commercial context have attorneys' fees provisions in contracts; 1A cases do not. This is what makes the Anti-SLAPP approach interesting but probably a perversion of the intent and meaning of the statutes.
They don't always. Obviously breach of contract cases do, but many of my cases do not have a formal, negotiated contract (e.g., fiduciary duty cases, UCC 2 cases, trade secret cases) and I typically see motions for attorneys' fees even absent a contractual provision, offer of judgment, or statutory basis beyond NRS 18.010. Granted, these are rarely successful, but at least in my experience, they are brought as a matter of course.
Obviously the situations are different, just trying to explain why a lawyer characterizing parties as "pathetic and disgusting" for bringing a fees motion seemed so strange to me.
As to the merits, the victim was trying to get an order to prohibit the further publication of public records and to claw back the records relating to her deceased spouse. That's a frivolous legal argument every day of the week. The First Amendment prohibits prior restraints. This is foundational, black letter First Amendment law. There's also a practical problem: once the toothpaste is out of tube, it's hard to put it back in. The records at issue were published before the court tried to intervene.
The district court also put the R-J in a bad position because the records were redacted of personally identifying information, so the R-J couldn't identify the victim's records from anyone else's. The district judge's solution: hand back over all of the records to the coroner and have him remove the victim's records. That was arguably a separate violation of a federal law that protects journalists, in addition to the First Amendment and Fourth Amendment.
Lastly, this can be debated, but dead people generally don't have legally protectable privacy rights, and certainly not in public records. Under existing law, autopsy reports created by a public official are public records. I empathize for the victim, I do, but her lawyers were flatly wrong on the law–frivolously so–a view held not just by me, but also the Nevada Supreme Court.
I agree with 1:09. The district court may have been dead wrong, and probably was, but she prevailed at that level, so hard to call it frivolous. By analogy, I've always taken the position that if a case survives an MSJ (and barring any substantial change in the facts) there is no basis to say that it was brought without reasonable grounds, because by definition the district court found that a reasonable trier of fact could find for the plaintiff.
I have seen parties oppose summary judgment by pointing to disputes over material facts, even when the party has no realistic way of proving the disputed fact at trial. I have seen judges deny summary judgment and strongly encourage the party who defeated summary judgment to settle, pointing out that party cannot win at trial. I absolutely think you can get past summary judgment and still maintain a case without reasonable ground.
1:07 here. The frivolity of the action is judged from the outset, and anew at each material point of litigation, as an action initially brought with reasonable ground could at some point become frivolous to maintain. It's an objective standard, and one that isn't supposed to be judged from hindsight. If the action was frivolous from the outset, as I believe it was in this case, a district court agreeing (and erring) with the party doesn't render the case non-frivolous.
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Anonymous
July 20, 2018 4:33 pm
Jesus, I am surprised by this. Pathetic.
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Quickdraw McLaw
July 20, 2018 5:29 pm
Thanks for your comments about the messed up links. I think they're correct now.
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Anonymous
July 20, 2018 8:37 pm
Why can't the judge just give the jury a special interrogatory as to whether the voluntariness of the confession has been proved beyond a reasonable doubt? Wouldn't that alleviate the concerns of coercion the corpus delicti doctrine is designed to protect against? If I were the DA, I would bring the case and try to get the trial judge to accept that, then argue it to the supreme court on appeal. They could then make a common law exception based on the interrogatory if at all possible under the rules. But maybe the rules don't permit any exceptions?
Federal and some state courts have adopted what's called the "trustworthiness" doctrine which applies when the State is relying on a confession for its proof. Before the confession can be admitted, though, the State must present sufficient evidence that a crime has occurred and substantial evidence of trustworthiness. For once, Wolfson is insisting that the prosecution is able to prove its case before charging someone. I don't think even under the "trustworthiness" doctrine, the confession is admissible.
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Anonymous
July 20, 2018 9:35 pm
I understand the public outcry. But the Anti-SLAPP statute is pretty broad in its remedies. It states that the Court "shall award attorneys fees and costs" if the Special Motion to Dismiss is granted. It further says that if the motion is denied, the court can grant fees the other way so might Mr. Sgro have threatened getting his fees under this statute and the sword is now cutting both ways?
NRS 41.670  Award of reasonable costs, attorney’s fees and monetary relief under certain circumstances; separate action for damages; sanctions for frivolous or vexatious special motion to dismiss; interlocutory appeal.
1.  If the court grants a special motion to dismiss filed pursuant to NRS 41.660:
(a) The court shall award reasonable costs and attorney’s fees to the person against whom the action was brought, except that the court shall award reasonable costs and attorney’s fees to this State or to the appropriate political subdivision of this State if the Attorney General, the chief legal officer or attorney of the political subdivision or special counsel provided the defense for the person pursuant to NRS 41.660.
(b) The court may award, in addition to reasonable costs and attorney’s fees awarded pursuant to paragraph (a), an amount of up to $10,000 to the person against whom the action was brought.
(c) The person against whom the action is brought may bring a separate action to recover:
(1) Compensatory damages;
(2) Punitive damages; and
(3) Attorney’s fees and costs of bringing the separate action.
2.  If the court denies a special motion to dismiss filed pursuant to NRS 41.660 and finds that the motion was frivolous or vexatious, the court shall award to the prevailing party reasonable costs and attorney’s fees incurred in responding to the motion.
3.  In addition to reasonable costs and attorney’s fees awarded pursuant to subsection 2, the court may award:
(a) An amount of up to $10,000; and
(b) Any such additional relief as the court deems proper to punish and deter the filing of frivolous or vexatious motions.
4.  If the court denies the special motion to dismiss filed pursuant to NRS 41.660, an interlocutory appeal lies to the Supreme Court.
(Added to NRS by 1993, 2848; A 1997, 1366, 2593; 2013, 624)
41.670 is silent about who pays; it simply says that the court shall make the award to the "person against whom the action is brought," without specifying whether the party or attorney pays it. It's a bit of a leap to get from there to NRS 7.085, but the silence in 41.670 as to who pays the mandatory fees and costs creates some ambiguity that can be exploited in this case without directly attacking a widow.
He paid them plus interest and penalties. Debt happens sometimes and I think most people have been in a position where they couldn't pay all their debt.
The RJ and Maggie McLetchie are pathetic and disgusting.
I think this is a dumb move from a PR point of view, but why is it disgusting? I am not a 1A lawyer but I know seeking these kinds of injunctions against the press are arguably frivolous. Why is it disgusting to seek attorneys' fees incurred in defending against frivolous claims?
I thought that the RJ, a paper generally fit only for wrapping fish, was on the right side of the underlying case. But the widow had a legitimate argument. Certainly not frivolous. Pursuing fees in such a case really smacks of piling on. They should be ashamed of themselves.
To be fair, the story seems to indicate that the RJ and AP are pursuing Tony Sgro for the fees and not necessarily seeking to get the money from Mrs. Hartsfield.
https://www.lasvegasnow.com/news/review-journal-ap-file-motion-against-1-october-widow-to-pay-legal-fees/1312053352
10:23 here. Like I said, this isn't an area I know much about, so if the argument wasn't frivolous then maybe not a good move. I am coming from a commercial context, where prevailing parties basically move for fees as a matter of course. That makes the outrage from lawyers a little surprising to me.
Prevailing parties in a commercial context have attorneys' fees provisions in contracts; 1A cases do not. This is what makes the Anti-SLAPP approach interesting but probably a perversion of the intent and meaning of the statutes.
They don't always. Obviously breach of contract cases do, but many of my cases do not have a formal, negotiated contract (e.g., fiduciary duty cases, UCC 2 cases, trade secret cases) and I typically see motions for attorneys' fees even absent a contractual provision, offer of judgment, or statutory basis beyond NRS 18.010. Granted, these are rarely successful, but at least in my experience, they are brought as a matter of course.
Obviously the situations are different, just trying to explain why a lawyer characterizing parties as "pathetic and disgusting" for bringing a fees motion seemed so strange to me.
The headline and story are wrong, misleading. The R-J is seeking fees from the lawyer, not the victim. https://twitter.com/Glenn_CookNV/status/1020367365035266048
they've updated their story now.
As to the merits, the victim was trying to get an order to prohibit the further publication of public records and to claw back the records relating to her deceased spouse. That's a frivolous legal argument every day of the week. The First Amendment prohibits prior restraints. This is foundational, black letter First Amendment law. There's also a practical problem: once the toothpaste is out of tube, it's hard to put it back in. The records at issue were published before the court tried to intervene.
The district court also put the R-J in a bad position because the records were redacted of personally identifying information, so the R-J couldn't identify the victim's records from anyone else's. The district judge's solution: hand back over all of the records to the coroner and have him remove the victim's records. That was arguably a separate violation of a federal law that protects journalists, in addition to the First Amendment and Fourth Amendment.
Lastly, this can be debated, but dead people generally don't have legally protectable privacy rights, and certainly not in public records. Under existing law, autopsy reports created by a public official are public records. I empathize for the victim, I do, but her lawyers were flatly wrong on the law–frivolously so–a view held not just by me, but also the Nevada Supreme Court.
So frivolous that she got a District Court judge to agree.
Is your point that EJDC judges never make patently absurd rulings due to incompetence or political motivations?
Both.
I agree with 1:09. The district court may have been dead wrong, and probably was, but she prevailed at that level, so hard to call it frivolous. By analogy, I've always taken the position that if a case survives an MSJ (and barring any substantial change in the facts) there is no basis to say that it was brought without reasonable grounds, because by definition the district court found that a reasonable trier of fact could find for the plaintiff.
I have seen parties oppose summary judgment by pointing to disputes over material facts, even when the party has no realistic way of proving the disputed fact at trial. I have seen judges deny summary judgment and strongly encourage the party who defeated summary judgment to settle, pointing out that party cannot win at trial. I absolutely think you can get past summary judgment and still maintain a case without reasonable ground.
1:46:
1:07 here. The frivolity of the action is judged from the outset, and anew at each material point of litigation, as an action initially brought with reasonable ground could at some point become frivolous to maintain. It's an objective standard, and one that isn't supposed to be judged from hindsight. If the action was frivolous from the outset, as I believe it was in this case, a district court agreeing (and erring) with the party doesn't render the case non-frivolous.
Jesus, I am surprised by this. Pathetic.
Thanks for your comments about the messed up links. I think they're correct now.
Why can't the judge just give the jury a special interrogatory as to whether the voluntariness of the confession has been proved beyond a reasonable doubt? Wouldn't that alleviate the concerns of coercion the corpus delicti doctrine is designed to protect against? If I were the DA, I would bring the case and try to get the trial judge to accept that, then argue it to the supreme court on appeal. They could then make a common law exception based on the interrogatory if at all possible under the rules. But maybe the rules don't permit any exceptions?
Federal and some state courts have adopted what's called the "trustworthiness" doctrine which applies when the State is relying on a confession for its proof. Before the confession can be admitted, though, the State must present sufficient evidence that a crime has occurred and substantial evidence of trustworthiness. For once, Wolfson is insisting that the prosecution is able to prove its case before charging someone. I don't think even under the "trustworthiness" doctrine, the confession is admissible.
I understand the public outcry. But the Anti-SLAPP statute is pretty broad in its remedies. It states that the Court "shall award attorneys fees and costs" if the Special Motion to Dismiss is granted. It further says that if the motion is denied, the court can grant fees the other way so might Mr. Sgro have threatened getting his fees under this statute and the sword is now cutting both ways?
NRS 41.670  Award of reasonable costs, attorney’s fees and monetary relief under certain circumstances; separate action for damages; sanctions for frivolous or vexatious special motion to dismiss; interlocutory appeal.
1.  If the court grants a special motion to dismiss filed pursuant to NRS 41.660:
(a) The court shall award reasonable costs and attorney’s fees to the person against whom the action was brought, except that the court shall award reasonable costs and attorney’s fees to this State or to the appropriate political subdivision of this State if the Attorney General, the chief legal officer or attorney of the political subdivision or special counsel provided the defense for the person pursuant to NRS 41.660.
(b) The court may award, in addition to reasonable costs and attorney’s fees awarded pursuant to paragraph (a), an amount of up to $10,000 to the person against whom the action was brought.
(c) The person against whom the action is brought may bring a separate action to recover:
(1) Compensatory damages;
(2) Punitive damages; and
(3) Attorney’s fees and costs of bringing the separate action.
2.  If the court denies a special motion to dismiss filed pursuant to NRS 41.660 and finds that the motion was frivolous or vexatious, the court shall award to the prevailing party reasonable costs and attorney’s fees incurred in responding to the motion.
3.  In addition to reasonable costs and attorney’s fees awarded pursuant to subsection 2, the court may award:
(a) An amount of up to $10,000; and
(b) Any such additional relief as the court deems proper to punish and deter the filing of frivolous or vexatious motions.
4.  If the court denies the special motion to dismiss filed pursuant to NRS 41.660, an interlocutory appeal lies to the Supreme Court.
(Added to NRS by 1993, 2848; A 1997, 1366, 2593; 2013, 624)
41.670 is silent about who pays; it simply says that the court shall make the award to the "person against whom the action is brought," without specifying whether the party or attorney pays it. It's a bit of a leap to get from there to NRS 7.085, but the silence in 41.670 as to who pays the mandatory fees and costs creates some ambiguity that can be exploited in this case without directly attacking a widow.
Aaron Ford has back tax liens.
*Had* back tax liens. They were released in 2016.
He paid them plus interest and penalties. Debt happens sometimes and I think most people have been in a position where they couldn't pay all their debt.
I have never had liens, and I am not running for office.
Huh, I wonder if his payoff coincided with leaving Snell and going to Eglet's firm…
I wouldn't be surprised. Making partner is not the gravy train it's made out to be.
Bank of Eglet at it again.