- Quickdraw McLaw
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A commenter yesterday offered the following tip:
Practice tip: when drafting a discovery motion or letter, look first for cases from Nevada state and federal courts and federal courts within the Ninth Circuit, and only cite cases from other courts if you can’t find a Nevada or Ninth Circuit case supporting your position. I’m tired of reading and having to respond to briefs and letters that cite a 20 year old case from the Vermont Court of Appeals or an unpublished case from the District of Kansas. It tells me that you’re either too lazy to look for a case from Nevada or Ninth Circuit courts or that you’re making some novel argument that’s been endorsed by only a couple courts in the country.
That got us thinking–what other tips, recommendations, or wishful thinking do you have to offer about legal writing in Nevada. Do you string cite? Do you start all your papers with COMES NOW? (Why?) Do you paste pictures into your briefs? Do you use footnotes? How often do you include tables of authorities or tables of content? Do you follow the rules on letters and numbers for exhibits depending on which party you are or do you just always use numbers? If you could convince the Vegas legal community to change one thing about how we write, what would it be?
Any news on who is taking over for Betsy on business court? If it will be the newly appointed judge or a currently sitting judge?
News is current docket split between Johnson and Kishner
I hope Kishner takes over business court so I can see less of her.
Kish + JoJo = .50GForce
1:02, show me pics. I am fishing, so I have a short attention span.
Gspot.
Block quotes are pure laziness most of the time. If the whole thing is absolutely necessary (for example needing a full quote from an exhibit), fine. But just copying and pasting a civil procedure rule so you don't have to write a sentence? Give me a break.
I disagree with this in some measure. Block quotes often give the context of the precedent. Cannot tell you the number of times counsel has taken a snippet of a decision and left out the "but" or "however".
A considerate, thoughtful attorney never ignores the but.
Regarding motion citations
I have seen cites to unpublished decisions, district court cases from Nevada and from everywhere else. This is supposed to be a big no-no, something taught in law school. But I have not seen a Judge or Law Clerk EVER comment on this. inappropriate and boiler plated cites are a big distraction because you then have to write something about why the case is either not relevant nor citable.
Departments need to step up.
Both the Ninth Circuit and the Nevada Supreme Court expressly allow citations of unpublished opinions (after a certain date). The clerk (hopefully) knows how to distinguish binding from nonbinding authority and to discount the value of unpublished decisions.
I wouldn't worry too much about string cites. They mostly just make the reader's eyes gloss over.
As a former district court law, I can assure you that when briefing the motions, I always told my judge about cites to unpublished opinions and when the case was from an obscure nonbinding court. It may not have been commented on to the lawyers, but the judge was definitely aware of them.
Holy shit guys. We have a former law posting on this board now. (I kid, I kid).
My bad…meant former law clerk.
4:31 here, I was just messing around. I knew what you were saying.
"It is clear" = it is not clear.
"It is well settled that" = I found a Florida case from 1923 that sort of says this.
"Never before in my career have I experienced someone doing this" = I did this very thing myself a week ago.
One or two periods after a sentence? Don't care. Capitalize things randomly because the other kids do it? Don't care.
"Never before in my career have I experienced someone doing this" = I did this very thing myself a week ago.
That's gold Jerry! Gold!
"Comes now," "hereinafter," and all those other antiquated terms makes me assume the writer is a dinosaur, uses WordPerfect, and calls their IT Department daily over computer "problems" my 6 year old could figure out.
HEY! WordPerfect is under appreciated. You can turn out a document with perfect formatting faster than in MS Word. That said, I use MS Word out of necessity but only because WP doesn't work with much of my other software. I use a third party app for numbering, I confess to using Styles, and have developed workarounds to tame MS Word's annoying eccentricities. The next time you have to fuss with a brief to fix the formatting, consider that you did not have that problem in WP.
100% true. I have been through this exact procedure, except using Styles, although I have created my own Personalized Default Style (Does that count?)
WP is and remains vastly superior.
/s/ Dinosaur, Esq.
Second this (or third). Also, is that six year old available for consultation? my kids are in college now and therefore not around to fix my blackberry
"on our about" at what point should you know the date that something actually happened?
Willick is the worst with the old/far away state case law. NV courts have always said look to CA if we have no case on point. Instead Willick will find some 1956 case from Iowa that isn't even on point, but there is half a sentence that is helpful so he cites it. When you actually download the case and read it, turns out that he completely misstates the holding in the case as well.
California is a sister state, and its judicial reasoning is equivalent to any other's. Nevada is not a subdivision of California, and judges and justices do a grave disservice to Nevadans when they treat California opinions as something they should automatically follow. Find something on point, and explain why the rationale is applicable, whether that be from Idaho, New York, or Iowa.
11:07 here – if you actually looked at my entire comment you'd see I wasn't just taking exception with the jurisdiction. Also, there is a significant body of case law that clearly states NV looks to CA law when we don't have case law on point. Some of our statutes (med mal) are even exact copies of CA statutes.
So when the law actually states that we look to CA law first, look to CA law first. Then expand to other states in the 9th…and so on.
11:07–When he, or others, pursue such approach, I don't think it is to serve some misleading or diabolical motive,as you appear to imply.
There may be exceptions, but I think they look first to see if there is strong supportive authority, and yes, often they look first to California, due to its seeming credibility based on a vast history and volume of jurisprudence and case authority.
But if nothing is to be found on point, and one is forced to locate the case from Iowa that, at best, has some sort of supporting dicta, sometimes that's the best you can do if you are involved in something really obscure and arcane.
Another point is that of precedent vs. authority. Yes, if there is a controlling case in Nevada, it is of course improper to ignore it, improper to not bring it to the court's attention, and to instead quote authority from some other state simply because it aligns much better with your position.
But if there is no controlling case from Nevada, and we are dealing with authority rather than precedent, an attorney is free to ignore the California case which may be more on point but detrimental to the attorney's position, and to instead cite and argue the Iowa case, which even if less on point than the California case, is more supportive of the attorney's position.
Now, that may sometimes be a very unwise approach(in situations where the court, and certainly the opposing side, are likely to cite and argue the much more relevant California case, rather than the less relevant Iowa case which happens to be more aligned with the attorney's position).
But I don't think there is anything improper about ignoring the Cal. case, and instead hammering on the Iowa case. And certain attorneys, (who know that certain judges and certain opposing counsel will not bother to research and thus not locate the Cal. case), may gamble it's a good approach to ignore the Cal. case and to instead emphasize the Iowa case.
4:41, situations can vary, but in the hypothetical you pose, I think it is best to assume the other side will locate the far more relevant Cal. case, so go ahead and disclose it, and then do your very best to argue why the Iowa precedent is more applicable.
That may be difficult, since under your example the Cal. case is much more factually consistent with the current Nevada dispute than is the Iowa case.
But most of us find out the hard way that although it can be damaging to us, and hold us back, if we constantly over-estimate the opposing side, it can be far more dangerous to under-estimate them.
Assume they will look first to Cal. Now, if it appears they will conduct no research at all, and you are sure of that, and that the judicial department will also conduct no research, I guess you could act like the Cal. case doesn't exist and instead hit hard on the Iowa case.
I just don't think that, law of averages speaking, that such approach will be prudent too often.
I want to offer a contrary opinion to the "Iowa v. California" debate above. There is no question that there is Nevada authority that holds that where applicable, Nevada will look to California for sister state authority. Much of that precedent predates the adoption of uniform laws and uniform codes by many states, Nevada included. There are situations in which Iowa precedent interprets similar uniform code provisions that California has not adopted. The assumption that Iowa (or Utah or Idaho) precedent is necessarily less applicable to California precedent is not always or often true.
Does anyone have a citation for the principle that Nevada looks to California law? People keep saying there's Nevada caselaw for that, but I haven't been able to find it.
The federal district courts have said it a couple times, but obviously their opinion about matters of state law is just commentary. They like to cite 94 Nev. 536, which discusses a couple California cases but absolutely does not say that California should be the default when Nevada law is silent.
It appears that's the case that cited CA and from there more recent cases have cited that case as authority for the premise that NV looks to CA law when NV law is silent.
This is 11:02 – yeah, seems like an overreading by one federal judge that was then latched onto by other district judges because it makes their analyses easier (just need to look at one jurisdiction instead of trying to figure out what the majority rule is and then guessing whether Nevada would follow it).
A+++ on the blog title today. The Admins often have great titles that don't get shown appreciation
These comments are likely not within my mandate but (that was for a particular person)
With all due respect –
Indeed
In so far as
WADR!
Lose the "esq."
This comment has been removed by the author.
Even Bill Preston?