I don't want to talk about the gun violence today. Too depressing.
Instead, I want to talk about an MSJ I recently reviewed. Opposing counsel argues that because their accident reconstructionist — who is not a biomech — opined that it was a low speed collision, and we did not hire a rebuttal expert, our case should be thrown out for lack of medical causation. This is such a laughable argument that I'm having trouble focusing on real work today. I keep coming back to the absurdity of this motion.
1. There are multiple medical experts who opine on causation.
2. Defendant doesn't have a biomechanic to opine that the forces were too low to cause injury.
3. Even if an expert says something like that, we're still allowed to survive MSJ because a jury doesn't have to agree.
4. This motion would have been dead in the water even before Rish v. Simao, which has completely stomped out any life it might have had.
When attorneys file garbage like this, do you think they do it as a pure billing exercise? Or do they have clients who think they have a shot? I just don't get it. Why waste our time and the court's?
This is generally not a billing exercise. Most of the time, there is a defense strategy in filing these types of motions. Chip away at the "bad" law and hope for a defensive change. Sometimes it works. The Supreme Court of Nevada reversed and remanded the $15 million judgment in First Transit v. Chernikoff. Most of the time it doesn't.
This motion will not be granted. It will not be granted no matter how many times it is filed over and over and over again by defense attorneys who bill by the hour. One or more physicians will testify as to medical causation; some dude who took a few engineering classes as UNLV will attempt to testify as to medical causation unless you get him excluded via motion in limine, which should be granted.
Guest
Anonymous
August 5, 2019 6:20 pm
Anyone else been in Court when Cogburn's Office has been arguing 18 page motions asserting that NR 18.130 ($500 out of state cost bond) is facially unconstitutional. After I heard this in Court, I had to go pull the pleadings. Wild and wacky stuff. Apparently they have been filing a lot of these in various cases.
The arguments are that it is unconstitutional to require out of state plaintiffs to have to post $500 costs bond with the court when in-state plainitffs do not have to post bonds. However even the cases cited by Cogburn stated that reasonable security is fine. They are spending thousands to protect posting $500 bond.
@3:13p – Strategically, do you think it is because the Plaintiff passed away and Cogburn doesn't want to front the cost bond? Or normally do PI Plaintiff's counsel front the cost bond anyway and they're tired of doing it? I do local counsel work for breach of contract matters (both Plaintiff & Defendant clients), but not contingency based, and I just take the $500 out of the retainer, pay it, and move on.
4:28 is correct. It is unconstitutional. 3:15 is correct that a case indicates a reasonable security is fine, but that does not mean the case law should not change.
6:35 – It has nothing to do with strategy. It is principle. As a plaintiffs' firm we pony up all costs, including the $500, which ultimately you get back at the end of the case.
Jamie– with all due respect, you are wrong. Courts across the country have said for decades that you are wrong. I like to tilt windmills as much as the next attorney, but this is a stupid Motion in which you ignore clear precedent, ignore the policy reasons that courts have found time and again that makes it constitutional and cannot even provide good logic for the Motion. I read the motion and opposition in the Dale case and then looked up the cases that your firm cited and they do not say what you say that they say.
While I am certain that its a canned motion for which you are not billing your clients each time that you file it, it is a canned motion that is getting blown out of the water time and time again. When Defendants move for their fees (and they will), can explain to your clients that you decided that making Defendants run up $3000 in fees in each case to draft an Opposition to and appear for a hearing on a frivolous motion (because of the "principle" that your clients really would not care about) was worth it?
PS: You might want to look at NRPC 1.8 before stating that you are posting bonds instead of your client ("(l) A lawyer shall not stand as security for costs or as surety on any appearance, appeal, or other bond or surety in any case in which the lawyer is counsel").
11:51– "(l) A lawyer shall not stand as security for costs or as surety on any appearance, appeal, or other bond or surety in any case in which the lawyer is counsel." Does standing as security for costs, mean that they will not post $500 as security? Or does it mean that they will not act as a surety?
Guest
Anonymous
August 5, 2019 11:04 pm
Nevada Lawyer's Magazine
Cute … but I would rather have issues devoted to something useful.. not to a niche practice with a very small number of people who are practicing in that area.
Guest
Anonymous
August 5, 2019 11:08 pm
Anyone else amused at the PI attorneys losing their minds over this First Transit v. Chernikoff case?
Ya know, common sense is NOT on the side of making a bus company pay $15 million just because a man happens to be sitting on their bus when he chokes on a snack he brought with him. This was the kind of verdict that makes juries look stupid and leads to tort reform. You don’t have to be in the Chamber of Commerce to think the supreme court got this one right, and that the dissenters were bleeding-heart hacks trying to rationalize it.
Niche practice warps perception. It’s like the wrongful-foreclosure and super-priority lien cases. Only to those cottage-industry attorneys did the remedy of a free house or one for pennies on the dollar ever make sense. They said it to themselves and polite state judges enough to actually believe it. Until, one day, one of them had to sell that bullshit in the Ninth Circuit and face lifetime-appointed, federal judges finally asking, “You think you get a free house out of this? Are you fucking kidding?”
When I read the majority opinion in First Transit, it seemed like a total no-brainer. You can't hold a bus driver liable for a passenger choking on a sandwich under a higher standard of care. But the dissent raised some interesting points and facts, like the fact that the bus driver knew that his passengers were not allowed to eat, for this very reason. I think the majority got it right on the legal issue of the heightened standard, but I wonder if First Transit would have been negligent under a normal standard of care? I guess there will be a new trial and a chance for the plaintiff to find out.
Agreed 4:21. I think this was actually a difficult call as shown by the 4-3 split. The idea that this was a slam dunk in either direction oversimplifies the issues involved. Being a judge would be hard.
I don't want to talk about the gun violence today. Too depressing.
Instead, I want to talk about an MSJ I recently reviewed. Opposing counsel argues that because their accident reconstructionist — who is not a biomech — opined that it was a low speed collision, and we did not hire a rebuttal expert, our case should be thrown out for lack of medical causation. This is such a laughable argument that I'm having trouble focusing on real work today. I keep coming back to the absurdity of this motion.
1. There are multiple medical experts who opine on causation.
2. Defendant doesn't have a biomechanic to opine that the forces were too low to cause injury.
3. Even if an expert says something like that, we're still allowed to survive MSJ because a jury doesn't have to agree.
4. This motion would have been dead in the water even before Rish v. Simao, which has completely stomped out any life it might have had.
When attorneys file garbage like this, do you think they do it as a pure billing exercise? Or do they have clients who think they have a shot? I just don't get it. Why waste our time and the court's?
This is generally not a billing exercise. Most of the time, there is a defense strategy in filing these types of motions. Chip away at the "bad" law and hope for a defensive change. Sometimes it works. The Supreme Court of Nevada reversed and remanded the $15 million judgment in First Transit v. Chernikoff. Most of the time it doesn't.
This motion will not be granted. It will not be granted no matter how many times it is filed over and over and over again by defense attorneys who bill by the hour. One or more physicians will testify as to medical causation; some dude who took a few engineering classes as UNLV will attempt to testify as to medical causation unless you get him excluded via motion in limine, which should be granted.
Anyone else been in Court when Cogburn's Office has been arguing 18 page motions asserting that NR 18.130 ($500 out of state cost bond) is facially unconstitutional. After I heard this in Court, I had to go pull the pleadings. Wild and wacky stuff. Apparently they have been filing a lot of these in various cases.
Can you give an example case number for us to do the same and review? I'm curious what the situation is triggering this and his arguments.
Saw it last week in front of Bare.
A-19-791883-C Dessie Dale, Plaintiff(s) vs. Peggy Pool, Defendant(s)
The arguments are that it is unconstitutional to require out of state plaintiffs to have to post $500 costs bond with the court when in-state plainitffs do not have to post bonds. However even the cases cited by Cogburn stated that reasonable security is fine. They are spending thousands to protect posting $500 bond.
He is right. It is unconstitutional. Why is con law such a difficult standard for judges to grasp?
@3:13p – Strategically, do you think it is because the Plaintiff passed away and Cogburn doesn't want to front the cost bond? Or normally do PI Plaintiff's counsel front the cost bond anyway and they're tired of doing it? I do local counsel work for breach of contract matters (both Plaintiff & Defendant clients), but not contingency based, and I just take the $500 out of the retainer, pay it, and move on.
4:28 is correct. It is unconstitutional. 3:15 is correct that a case indicates a reasonable security is fine, but that does not mean the case law should not change.
6:35 – It has nothing to do with strategy. It is principle. As a plaintiffs' firm we pony up all costs, including the $500, which ultimately you get back at the end of the case.
Jamie Cogburn
Go get them, Jamie!
Jamie– with all due respect, you are wrong. Courts across the country have said for decades that you are wrong. I like to tilt windmills as much as the next attorney, but this is a stupid Motion in which you ignore clear precedent, ignore the policy reasons that courts have found time and again that makes it constitutional and cannot even provide good logic for the Motion. I read the motion and opposition in the Dale case and then looked up the cases that your firm cited and they do not say what you say that they say.
While I am certain that its a canned motion for which you are not billing your clients each time that you file it, it is a canned motion that is getting blown out of the water time and time again. When Defendants move for their fees (and they will), can explain to your clients that you decided that making Defendants run up $3000 in fees in each case to draft an Opposition to and appear for a hearing on a frivolous motion (because of the "principle" that your clients really would not care about) was worth it?
PS: You might want to look at NRPC 1.8 before stating that you are posting bonds instead of your client ("(l) A lawyer shall not stand as security for costs or as surety on any appearance, appeal, or other bond or surety in any case in which the lawyer is counsel").
11:51– "(l) A lawyer shall not stand as security for costs or as surety on any appearance, appeal, or other bond or surety in any case in which the lawyer is counsel." Does standing as security for costs, mean that they will not post $500 as security? Or does it mean that they will not act as a surety?
Nevada Lawyer's Magazine
Cute … but I would rather have issues devoted to something useful.. not to a niche practice with a very small number of people who are practicing in that area.
Anyone else amused at the PI attorneys losing their minds over this First Transit v. Chernikoff case?
Ya know, common sense is NOT on the side of making a bus company pay $15 million just because a man happens to be sitting on their bus when he chokes on a snack he brought with him. This was the kind of verdict that makes juries look stupid and leads to tort reform. You don’t have to be in the Chamber of Commerce to think the supreme court got this one right, and that the dissenters were bleeding-heart hacks trying to rationalize it.
Niche practice warps perception. It’s like the wrongful-foreclosure and super-priority lien cases. Only to those cottage-industry attorneys did the remedy of a free house or one for pennies on the dollar ever make sense. They said it to themselves and polite state judges enough to actually believe it. Until, one day, one of them had to sell that bullshit in the Ninth Circuit and face lifetime-appointed, federal judges finally asking, “You think you get a free house out of this? Are you fucking kidding?”
Reality slaps hard sometimes.
When I read the majority opinion in First Transit, it seemed like a total no-brainer. You can't hold a bus driver liable for a passenger choking on a sandwich under a higher standard of care. But the dissent raised some interesting points and facts, like the fact that the bus driver knew that his passengers were not allowed to eat, for this very reason. I think the majority got it right on the legal issue of the heightened standard, but I wonder if First Transit would have been negligent under a normal standard of care? I guess there will be a new trial and a chance for the plaintiff to find out.
(BTW, I do 100% plaintiff's PI work.)
Agreed 4:21. I think this was actually a difficult call as shown by the 4-3 split. The idea that this was a slam dunk in either direction oversimplifies the issues involved. Being a judge would be hard.