1September 2019, Vol. 41, No. 8

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September 2019 Vol. 41, No. 8

CONVERSATIONSON DISCOVERY

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RANDOMTHOUGHTS

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OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION

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FAMILY LAW

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LAW LIBRARYPRO BONO

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ACROSS THE LINE

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SPECIALTY COURTSPG 12

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RSVP by September 9, 2019. $25 per person for members and $35 for non-members. Register online at www.wcbar.org or call 786-4494.

JUDICIAL ETHICS

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Thank you to our lunch sponsors:

Wednesday, September 11, 201912:00 p.m.

Harrah's Convention Center, 3rd Floor

"Reciprocity: The Conversation Continues" 1 Hour CLE General Credit

Should Nevada be in lock step with the national trend and adopt reciprocity as an avenue to practice law within our border? Or, is reciprocity a solution in search of a problem?

Join the State Bar of Nevada's Vice-President and former Washoe County Bar Association President Ann Morgan as we discuss the topic of reciprocity in Nevada. This engaging seminar will feature a video of a recent Lincoln-Douglas style debate on reciprocity and explore the responses the state bar received to its statewide survey, and ask you to form your own opinions as well.

September 2019, Vol. 41, No. 8 32 September 2019, Vol. 41, No. 8

R a n d o m T h o u g h t s

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THE WRIT IS THE OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION

RYAN LEARY, EDITORGINA MACLELLAN, MANAGING EDITOR

ANNUAL SUBSCRIPTION RATE FOR NON-MEMBERS OF WCBA: $36

WCBA, P.O. BOX 1548, RENO NV 89505TEL: 775-786-4494 FAX: 775-324-6116WWW.WCBAR.ORG E-MAIL: GINA @WCBAR.ORG

PRESIDENT HOLLY PARKER VICE PRESIDENT CHANDENI SENDALL SECRETARY JACEY PRUPASTREASURER JOHN MOORE SERGEANT-AT-ARMS RYAN LEARY EXECUTIVE DIRECTOR GINA MACLELLAN ARTICLES APPEARING IN THE WRIT EXPRESS THE VIEWS OF THE AUTHORS AND NOT

NECESSARILY THOSE OF THE WCBA. FOR ADVERTISING CALL THE WRIT AT 775-786-4494. WCBA RESERVES THE RIGHT TO ACCEPT OR DENY ANY ADVERTISING.

C O N V E R S A T I O N S O N D I S C O V E R YBy Wesley M. Ayres, Discovery Commissioner

Printed on recylable paper using vegetable-based ink.

Holly ParkerPresident

A video or audio recording of a party can be powerful evidence

in a tort action, and disputes concerning the discoverability of such recordings have been addressed by numerous courts. The decisions are not in agreement, however, and courts have emphasized different considerations in supporting their conclusions. One recurring issue is whether the party who has been recorded (typically, but not always, plaintiff) is entitled to inspect the recording prior to his or her deposition. Perhaps the most fundamental distinction in addressing this issue is between recordings of an actual incident involving the party, and recordings that are created later. The former are generally viewed by courts as substantive evidence, while the latter are sometimes characterized as impeachment evidence.

Nevada appellate courts have not issued a decision on whether a recording of a party can be withheld until after that party has been deposed, irrespective of how the evidence is characterized. However, NRCP 16.1 now provides that each party has an affirmative obligation to disclose “any record, report, or witness statement, in any form, concerning the incident that gives rise to the lawsuit.” See NRCP 16.1(a)(1)(A)(ii). The comments to this new provision explain that this provision is intended to encompass documents “that are prepared or exist at or near the time of the subject incident,” although the particular time limits on this disclosure obligation “will depend on the facts and circumstances of each case.” See id. advisory committee note to 2019 amendment. Thus, absent a stipulation or order to the contrary, a defendant is not permitted to withhold a video or audio recording of the incident giving rise to the lawsuit until after plaintiff has been deposed. By the way, Nevada is not the only state with a rule or statute

requiring the production of incident recordings prior to plaintiff’s deposition. See N.Y. C.P.L.R. § 3101(i) (McKinney through 2019, ch. 144) (requiring full disclosure of all portions of any films, photographs, video tapes, or audio tapes—including out-takes—involving a party or other individuals identified in the statute); see also Tran v. New Rochelle Hosp. Med. Ctr., 786 N.E.2d 444, 447-48 (N.Y. 2003) (under § 3101, plaintiff need not submit to deposition before obtaining disclosure of any incident recordings). State courts without a governing rule or statute have reached differing conclusions on whether incident recordings must be produced before an opposing party’s deposition. Compare Bell v. Treasure Chest Casino, LLC, 950 So. 2d 654, 656 (La. 2007) (defendant must produce recording of actual accident prior to plaintiff’s deposition, because “[t]he importance of the videotape’s showing of the actual circumstances of the accident, and its assistance to the parties in the search for truth, far outweigh any potential impeachment value”), and Herrick v. Wilson, 59 A.3d 604, 606 (N.J. Super. Ct. Law Div. 2011) (“[t]here is simply no sound reason to treat the video surveillance at issue differently from other routine discovery such as prior statements or admissions made by a party”), with McClure v. Publix Super Markets, Inc., 124 So. 3d 998, 999 (Fla. Dist. Ct. App. 2013) (“petitioner has not shown that if she answers questions at a deposition, prior to production of the security store video showing the fall, that any harm will occur or that the video will somehow conflict with her statements at the deposition”).

The Federal Rules of Civil Procedure do not contain a provision specifically requiring that parties disclose incident recordings as part of their initial disclosures. However, a clear majority of

federal courts have held that those kinds of recordings must be produced prior to the plaintiff’s deposition. For example, in Holbourn v. NCL (Bah.) Ltd., 305 F.R.D. 685 (S.D. Fla. 2014), a passenger on a cruise ship alleged she was struck by a sun lounger that had blown across the deck. Three cameras captured the incident, but defendant argued that the recordings were protected work product based on its decision to preserve them. The district court rejected defendant’s claim, noting that they were created in the ordinary course of business and that defendant had a duty to preserve them once it was made aware of plaintiff’s claim. See id. at 687-88. The court also characterized as “speculative” defendant’s concern that plaintiff could tailor her recollection of events to correspond to the videos, since she provided a hand-written statement shortly after the incident and made specific allegations in her complaint relating to the conditions on the deck at the time the sun lounger hit her. See id. at 688. Finally, the court emphasized that the primary evidentiary value of these recordings was as proof of the underlying facts surrounding the incident, rather than for impeachment. See id. at 689.

Other federal courts have agreed that a recording of the actual incident giving rise to the litigation is not protected work product. See, e.g., Buehler v. Family Dollar, Inc., No. 17-1241-JTM-GEB, 2018 WL 296016, at *3 (D. Kan. Jan. 4, 2018); Schroeder v. Menard, Inc., No. 2:13-CV-451-RLM-JEM, 2014 WL 3084725, at *7 (N.D. Ind. July 7, 2014); Inferrera v. Wal-Mart Stores, Inc., Civil No. 11-5675 (RMB/JS), 2011 WL 6372340, at *2 & n.3 (D.N.J. Dec. 20, 2011); but see Bolitho v. Home Depot USA, Inc., No. 10-60053-CIV, 2010 WL 2639639 (S.D. Fla. June 3, 2010) (finding that store surveillance video was work product,

As we approach our busy season of luncheons and events, I thought

it would be a good time to provide an overview of the mission of the Washoe County Bar Association (WCBA), and the many benefits we offer our members, the legal profession, and the Northern Nevada community.

WCBA was incorporated in 1905. It was formed to serve the legal community in Reno and Sparks, Nevada. Today, the organization serves over 1,000 members in Northern Nevada. WCBA’s mission is to further professionalism, ethics, and service in the practice of law. WCBA furthers this mission by offering a variety of benefits to our members, as well as professional and community programs to our members and the public.

WCBA offers numerous benefits to our membership. WCBA publishes a pictorial attorney Directory (an invaluable tool, if you ask me) and, of course, the Writ. In the last couple of years, we have broadened the subject-matter of the Writ, and we welcome potential article submissions from our members. In addition to our regular featured topics, you may have noticed some new articles, including “Ask Bar Counsel,” “Law Clerk Corner,” “Millennial Minute,” and others.

WCBA also distributes a monthly newsletter, Bar Flash!, which keeps our members informed between issues of the Writ. Our website allows our members to access archives of the Writ, provides information regarding discounts offered

to our members by local businesses, and allows our members to register for upcoming luncheons and events. This year one of our goals is to expand the member benefits featured on the website. WCBA offers members a way to build their practice with “Find A Lawyer”; see our website for details.

WCBA hosts a luncheon the second Wednesday of every month (except January, July, August, and November); the speakers address a wide array of current legal issues and other topics of interest to the legal community. Please help us launch our season by joining us in September and October for the following luncheon events:

September 11, 2019 Reciprocity: The Conversation Continues October 9, 2019 Health and Wellness

Many of our luncheon events provide members with affordable CLE credit. WCBA also offers additional CLE events throughout the year; a long-time favorite is the annual November “Entertaining Ethics” seminar.

WCBA sponsors two social events a year, typically in the fall and spring. This year we plan to add a wellness challenge and an additional social event centered on the theme of health and wellness. WCBA also hosts the annual Basque dinner, which is so popular it usually sells out quickly. Our social events and the Basque dinner provide our members with a great way to network and visit with their colleagues.

WCBA wants to thank the State

Bar of Nevada for all the support it gives WCBA to further its mission. The State Bar also sponsors excellent events throughout the year. For example, on October 2, 2019, the State Bar is conducting an attorney wellness summit called “Let’s Talk.” The program will include shared experiences from lawyers dealing with issues related to substance abuse, secondary trauma, anxiety, and the challenges of aging in the profession. This will be followed by small group breakout sessions to discuss how these issues may affect the practice of law, firms, organizations and what resources are needed to effect change. Visit the State Bar’s website for more details.

WCBA also serves the legal community and general public. WCBA participates in receptions to celebrate new lawyers just admitted to the practice of law, and judicial investiture receptions to celebrate our new Northern Nevada judges.

WCBA sponsors the High School Mock Trial Competition in Northern Nevada with funding from the Washoe County Bar Foundation. WCBA provides financial assistance to Washoe Legal Services and the Legal Resource Fund. At least one Board member from WCBA has historically served on the Board for Washoe Legal Services. WCBA sponsors a Judicial Performance Survey. WCBA offers informational publications for the general public, including the “Now that You Are 18 A

Continued on page 5

September 2019, Vol. 41, No. 8 54 September 2019, Vol. 41, No. 8

but ordering it to be produced after completion of plaintiff’s deposition). While federal courts acknowledge that evidence supporting particularized concerns about a plaintiff’s credibility might warrant an order allowing a defendant to depose a plaintiff prior to disclosure of an incident recording, most have refused to accept broad, generalized concerns that plaintiffs will alter their testimony after reviewing such a recording. See, e.g., Cabezudo-Vazquez v. Ross Dress for Less, Inc., No. 18-80469-CV-MIDDLEBROOKS, 2018 WL 4908101, at *2 (S.D. Fla. July 27, 2018); Grubbs v. Winn Dixie Props., LLC, Civil Action No. 15-182, 2015 WL 3892555, at *2 (E.D. La. June 17, 2015); Kelley v. Smith’s Food & Drug Ctrs., Inc., No. 2:14-cv-00856-RCJ-CWH, 2014 WL 6474026, at *4 (D. Nev. Apr. 29, 2014); Cornell v. Jim Hawk Truck Trailer, Inc., 297 F.R.D. 598, 601-02 (N.D. Iowa 2013); Louisma v. Automated Fin., LLC, No. 11 CV 2104, 2011 WL 5105377, ay *2 (N.D. Ill. Oct. 27, 2011); cf. Sowell v. Target Corp., No. 5:14-cv-93-RS-GRJ, 2014 WL 2208058, at *4 (N.D. Fla. May 28, 2014) (in addition to rejecting unsupported speculation that plaintiff might alter testimony, court noted that “store employees, who witnessed the incident, presumably would have the benefit of viewing the tape before their depositions are taken, thus, creating a disadvantage”). Many federal courts have also endorsed the point made in Holbourn that recordings which are primarily important as substantive evidence are to be distinguished from those which are primarily valuable as impeachment evidence. See, e.g., Grubbs, 2015 WL 3892555, at *2; Schroeder, 2014 WL 3084725, at *6; Muzaffarr v. Ross Dress for Less, Inc., 941 F. Supp. 2d 1373, 1375 (S.D. Fla. 2013); Dehart v. Wal-Mart Stores, E., LP, No. 4:05CV00061, 2006 WL 83405, at *1-2 (W.D. Va. Jan. 6, 2006)

Federal courts that have allowed parties to withhold incident recordings have cited concerns about fairness and the value of those recordings for potential impeachment. See Brown v. NCL (Bah.), Ltd., No. 15-21732-CIV-LENARD/GOODMAN, 2015 WL

6673700, at *3 (S.D. Fla. Oct. 30, 2015) (permitting defendant to withhold incident recording based on evidence that plaintiff had provided different versions of critical events, and that memory problems raised concern that her testimony would not be sufficiently independent if she first viewed the video); Nusz v. Wal-Mart Stores E., L.P., No. 2:15-cv-16-FtM-38CM, 2015 WL 12859328, at *1 (M.D. Fla. May 27, 2015) (withholding video of incident until after plaintiff’s deposition ensures fairness); Pinkney v. Winn-Dixie Stores, Inc., No. CV214-075, 2014 WL 12656735, at *2 (S.D. Ga. Sept. 15, 2014) (“[p]laintiff will not suffer any prejudice from delaying production of the surveillance video”); Young v. BC Servs., Inc., Civil Action No. 10-00429-WS-B, 2011 WL 2443765, at *2 (S.D. Ala. June 17, 2011) (observing “[i]f Plaintiff is provided the recordings before the deposition, the impeachment value is lost,” and finding “nothing inherently unfair about requiring a party who has filed a lawsuit based on alleged harassing telephone calls to give sworn deposition testimony about the alleged phone calls before being provided with copies of the telephone recordings”). As noted above, courts are also willing to consider issuance of a protective order under Rule 26(c), assuming the requisite particularized showing of good cause can be made.

When the surveillance recording is created after the incident, the willingness of courts to require a party to undergo a deposition before disclosure or production of that recording increases. Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), supports the view that disclosure should occur before an opponent’s deposition. In that case, the appellate court determined that impeachment evidence must be disclosed when it is requested in discovery proceedings:

In the context of a defendant’s surveillance of a personal injury plaintiff, the argument for non-disclosure is that the plaintiff seeks the disclosure of such evidence only when it will probably

show that the injury is fabricated or exaggerated. In those cases, it has been said that the potential perjurer has “no cause to complain of surprise if defendants elect to disprove the case on trial instead of in the conference room.” Although that argument has a certain logical appeal, we must recognize that it “proceeds on the premise that . . . witnesses whose testimony is designed to impeach invariably have a monopoly on virtue and that evidence to which the attempted impeachment is directed is, without exception, fraudulent.”

That premise may well be a faulty one, because it flies directly in the face of the very purpose of discovery. . . .

Id. at 516-17 (citations omitted); accord Varga v. Rockwell Int’l Corp., 242 F.3d 693, 697 (6th Cir. 2001) (“the recipient of a properly propounded document request must produce all responsive, non-privileged documents without regard to the recipient’s view of how that information might be used at trial”). More important, the post-accident surveillance recording at issue was substantive evidence regarding plaintiff’s injuries and damages:

Chiasson testified only that she is unable to carry on daily activities without pain, not that she is entirely unable to do so. The tape shows her carrying on daily activities. It was taken at some distance and has no sound component. It requires quite a leap to conclude that because she engages in routine activities, ergo, she does so without pain. In short, we question whether the proffered videotape discredits her testimony at all. Assuming, however,

that the tape is of some impeachment value, it is also of a substantive nature. Because the tape is, at the very least in part substantive, it should have been disclosed prior to trial, regardless of its impeachment value. . . .

Id. at 517-18.Chiasson did not directly involve

a dispute over whether production should occur before or after plaintiff’s deposition, but some federal district courts have echoed its concerns in requiring production of surveillance tapes prior to that deposition. See, e.g., Gardner v. Norfolk S. Corp., 299 F.R.D. 434, 436-38 (D.N.J. 2014); Costa v. AFGO Mech. Servs., Inc., 237 F.R.D. 21, 24-26 (E.D.N.Y. 2006); Mason v. T.K. Stanley, Inc., 229 F.R.D. 533, 535-36 (S.D. Miss. 2005). Of course, parties in federal civil actions are not required to affirmatively disclose evidence under FRCP 26(a)(1)(A)(ii) if their use of that evidence would be solely for impeachment. But Rule 34 governs requests for production and it does not contain any such limitation. If the request otherwise satisfies the requirement of reasonable particularity, the fact that requested materials will be used for impeachment does not, by itself, insulate that evidence from the discovery process. Indeed, some courts have required production of surveillance recordings even while recognizing that they may be work product for purposes of Rule 26(b)(3). See Figueroa v. Bonneville Contracting & Tech. Grp., Civil No. 2014-78, 2016 WL 3746530, at *2-4 (D.V.I. July 8, 2016); Gutshall v. New Prime, Inc., 196 F.R.D. 43, 45-46 (W.D. Va. 2000).

However, other federal courts have determined that while post-incident surveillance recordings are subject to discovery notwithstanding their status as work product, production may properly be delayed until after taking the deposition of the individual being recorded. In Witman v. Knight Transp., Inc., No. 3:15-cv-01102-H-NLS, 2016 WL 9503738 (S.D. Cal. Apr. 29, 2016), the court deemed a post-incident surveillance recording to be work product, but found that “the weight of

authority favors the discovery of such surveillance evidence for reasons of reviewing the materials for authenticity, facilitating possible settlement, avoiding unnecessary interruptions at trial, and fairness in the administration of justice.” See id. at *2. It also concluded that plaintiff could not secure a substantial equivalent by alternate means, since videotape “fixes information available at a particular time and a particular place under particular circumstances, and therefore cannot be duplicated.” See id. at *3 (internal quotation marks omitted). The court nevertheless ordered that production would not be required until after defendants had the opportunity to depose witnesses whose testimony could be affected by the footage. See id.; see also, e.g., Krekorian v. FMC Techs., Inc., Civil Action No. 16-14170, 2017 WL 1284191, at *2-3 (E.D. La. Apr. 6, 2017) (explaining that “the proper procedure to preserve the substantive and impeachment values of such evidence is to require production of the surveillance tapes after the Plaintiff’s deposition”); Young v. Friedel, No. 4:14-CV-499 (CEJ), 2014 WL 3418891, at *2-3 (E.D. Mo. July 14, 2014) (noting “there is no consensus among courts regarding this issue,” but ultimately permitting defendant to protect surveillance recording until after plaintiff’s deposition). While some state courts have refused to allow delayed production of a post-incident surveillance recording, most, have found that a delay is appropriate until after the deposition of the person being surveilled. Compare Hunter v. Bogia, C.A. No. N14C-04-080-PRW, 2015 WL 5050648, at *4-6 (Del. Super. Ct. July 29, 2015) (unpublished) (defendants failed to provide sufficient reason to defer production of surveillance materials), with Hankerson v. Wiley, 154 So. 3d 511, 512 (Fla. Dist. Ct. App. 2015) (“trial court abuses its discretion where it permits a plaintiff to view a post-accident surveillance video before allowing a defendant to depose the plaintiff”), and Mernick v. McCutchen, 121 A.3d 905, 908-10 (N.J. Super. Ct. App. Div. 2015) (reasoning that delayed production preserves impeachment value of surveillance films, and noting

that “the federal approach of delaying production of work product surveillance material until after the deposition of the subject of the surveillance is favored by leading commentators”).

Nevada appellate courts have not yet addressed the issue of whether a party can delay production of a post-incident surveillance recording until after the deposition of the party being surveilled. But under NRCP 16.1(a)(1)(A)(ii), parties have an affirmative obligation to produce any recording that they “may use” in support of their claims or defenses, including for impeachment. They also have a continuing duty to supplement those initial disclosures, as well as responses to discovery requests encompassing impeachment materials. See NRCP 26(e)(1). A party who wishes to delay production of a post-incident surveillance recording should therefore raise that issue with the court in a timely manner (e.g., through an objection under NRCP 16.1(a)(1)(C), a motion for protective order, a motion for pretrial conference, etc.).

Wes Ayres is the Discovery Commissioner for the Second Judicial District Court. His columns are online and searchable at wcbar.org.

Random Thoughts Continued

Survival Guide,” “Seniors and the Law a Guide for Aging Nevadans,” and the “Middle School Survival Guide for Students, Parents, and Teachers.”

As you can see, WCBA offers many benefits to our members, and resources for the community. We would love to hear from you. If you have ideas for events, luncheon topics, how WCBA can better carry out its mission, or any other suggestions, please feel free to contact us. The contact information for our Executive Director, Gina MacLellan, and our Board is listed on our website, wcbar.org. We look forward to seeing you at our upcoming events.

September 2019, Vol. 41, No. 8 76 September 2019, Vol. 41, No. 8

J U D I C I A L E T H I C SBy Honorable David Hardy, Second Judicial District Court

I depart from biographical sketches this month to write about the

Second Judicial District courthouse and recent developments in the new courthouse project. On July 23, 2019, the Board of County Commissioners directed staff to develop and report process protocols and financing options. The Board’s actions reveal strong county leadership and result from several master plan studies and years of collaboration between county and court officials. While the project is still being developed, and there are no current commitments, the county is on the eve of possible action. Given this development, it is appropriate to begin with the history of the courthouse as we look to its future.

The Nevada Territory was created in 1861.1 The first Territorial Legislature divided the Territory into nine counties, including Washoe County. The county seat was Washoe City, which was then the largest town within county boundaries.2 On July 16, 1863, Washoe County advertised for bids to construct a courthouse in Washoe City with an estimated cost of $15,000. A bid was accepted and the simple courthouse was completed within four months.

A Washoe City newspaper reported in 1866 that the courthouse was damaged by a wind storm and the county was seeking bids to make repairs. The newspaper was critical of the bid process and potential bidders. Grand juries were frequently used at the time, and a grand jury inspected the completed repairs the same year and concluded the courthouse was “in as good a state of preservation as could be expected in a building so faulty in its construction.”

Judge Charles Harris was elected Washoe County district judge in 1866. He was 27 old. Judge Harris had a complicated and short judicial career

that reveals his metropolitan preferences were inconsistent with the realities of a developing frontier judiciary. He was born in New York and moved with his family to Michigan when he was young. He and his family later moved to Minnesota. He enlisted in the Union Army and was seriously wounded at the Battle of Bull Run in 1861. He was taken from the battlefield as a prisoner-of-war and transferred to a Confederate prison hospital in Richmond. He was reported as killed in action and his family conducted a funeral for him in Minnesota, not knowing he was alive in Virginia.

Judge Harris worked at the Quartermaster General’s Office in Washington, D.C. after being released from the prisoner’s hospital in Richmond in November 1861. He studied the law during this time and was admitted to practice in Minnesota in 1864. Instead of moving to Minnesota, he moved to Nevada in September 1864, during the transition from territory to statehood.

Shortly after his election to the bench, Judge Harris sued Washoe County for better judicial accommodations. The county was satisfied a vacant room in the courthouse, which was “modestly furnished,” was sufficient for all judicial business. Judge Harris was described by one commentator as being “a little elevated with judicial dignity” when

he demanded finer furniture and more space, to include “convenient sleeping apartments, as being essential to the administration of justice and the maintenance of the dignity of the court.” The local newspaper observed “certain of Washoe County’s officials find it impossible to discover the exact character of their rights as officers, and as a natural consequence an immense amount of expensive and vexatious litigation follows.”

The battle between Judge Harris and the county commissioners was just beginning. In 1868, the grand jury recommended the county perform more repairs to the courthouse. Judge Harris was unhappy the county was not moving quickly enough, so on August 3, 1868, he testified before the grand jury that he “would not risk another term of court in the courthouse on account of its dilapidated condition.” Judge Harris lost public support when the newspaper reported the courthouse was sufficient to sustain the work of the court.

Economic energy in Washoe County migrated north from Washoe City to the Truckee River when the railroad was completed in 1868. Civic leader and businessman Myron Lake deeded 40 acres of land to the Central Pacific Railroad in exchange for the railroad’s construction of a rail station. The Central Pacific built the station, auctioned the remaining land, and changed the name of the area from Lake’s Crossing to Reno.3

Judge Harris vacated the Washoe City courthouse and began holding court in a Reno theater. During the summer of 1871, the location of a new courthouse in Reno was publicaly debated. The Nevada State Journal reported:

In making a permanent location for the Court-

The second Washoe County Courthouse, completed in 1873

house, the County Commissioners should not be influenced by the selfish interests of this or that man. Reno is a permanent and growing town, and the Court-house should be located with a view to the future. It should not be too near the river, for the noise and confusion of the rushing waters, whenever the river is at a high stage, is a very serious objection. It should not be on or near the business streets of the town, where the noise and clatter of the surrounding business would seriously interfere with Court affairs. It should be located sufficiently near the business portion of the town, on a plat of ground large enough for plenty of room on all sides of the building, so that the surroundings can be adorned with shade trees and ornamental shrubbery.

Mr. Lake lobbied to have the courthouse built south of the river. He offered to sell one acre of land to the county for $1,500, with a pledge to plant shade trees, provide water to the courthouse, and “lay out a public square in front of the site.” The land Mr. Lake offered is the land upon which the current courthouse sits. The county’s decision to purchase the land was controversial because most of Reno was developing north of the river and Mr. Lake controlled the toll bridge that allowed passage across the river. The site selection was briefly litigated before Judge Harris and the Nevada Supreme Court until the location was finally settled.

The county requested bids to construct a new courthouse on September 10, 1871, with an estimated construction cost of $20,500. Construction began on April 20, 1872, with 40 permanent on-site workers. (The original Washoe City courthouse was

deeded to the state for use as a hospital for the mentally ill but demolished in 1873.) The cornerstone was placed on June 22, 1872. The commission changed the exterior finishes from what were originally designed, which led the newspaper to complain the alteration “destroyed wholly the symmetry and beautiful architectural appearance of the building.” The courthouse was completed on January 24, 1873, and was described as a “substantial structure” with “excellent” interior finishes. Change-order litigation increased the original cost by 25%.

The 1873 courthouse “was a fine-looking, two-storied, brick edifice with a frontage of 58 feet and a depth of 79 feet.” It contained first-floor offices for the county clerk, treasurer, assessor, recorder, and sheriff. There was also space for a small county jail. The second floor consisted of a 35x58 foot “pleasant courtroom,” jury room, and rooms for the district attorney and county surveyor. The zinc-covered dome was 16 feet high and 10 feet in diameter. An artistic rendition of the 1873 courthouse is included in a large mural on the wall of the historic rotunda in the present courthouse.

Turf battles began immediately upon completion. A mere two weeks after the courthouse was completed, Judge Harris entered an order the press described as a “literary and legal curiosity.” The order reveals the high probability of judicial hubris:

It is by law within the inherent power of this Court first to occupy the entire structure, or so much thereof as is reasonably necessary for its own convenience and the convenience of its immediate officers, including the Clerk, Sheriff and District A t t o r n e y, w i t h o u t controlling reference to the convenience or necessities of such other officers of the County as are of not immediate service to the Court.

And the Court will of its own power appropriate such portions of this or any other building occupied by it as is most convenient for our own purposes, and the ready access of and to its own particular officers. And while by law it is made the duty of the Board of County Commissioners to provide suitable structures for the use of the Court and its officers, as well as the officers of the County, yet the Court will not suffer its manner or extent of occupation of such public property, when so provided, or its reasonable convenience to be controlled or restricted by the arbitrary will of a Board of Commissioners.

It satisfactorily and fully appears to this Court that the said Board of Commissioners have failed to reserve for the occupation of the District Judge any convenient apartment within this spacious building, neither have they provided elsewhere such office. Therefore this Court at this time assumes its rightful jurisdiction of this matter and acts therein by virtue of its authority as will be hereafter more fully apparent.

It appears to this Court that in the said Court House, contiguous to the Jury Room upon the second floor . . . is a room of convenient size and well lighted, suitable in all respects for use as an office for the use of the Judge of this Court. That said room is now occupied by a number of persons

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engaged in business which is principally disconnected with the duty of any county office. That one of said persons incidentally exercise the office of County Surveyor, by which to give a color of title to such occupation of said room, but that the duties pertaining to said office are trivial in extent. Wherefore, this Court by reasons of the law and the premises, hereby appropriates said room to its use as an office for the District Judge. And the Sheriff is hereby directed to proceed without delay or bantering of words to clear said room of all persons and property now being, occupying or remaining therein, except such stove and furniture as he shall ascertain to belong to the County.

And said Sheriff is hereby further directed to procure carpet of good quality and of decent appearance, either three-ply or brussels, and carpet said room, also to procure and place therein at least three good chairs, one of which shall be an easy chair; also one good writing desk with compartments for books, papers, etc.; also one lounge of substantial and decent construction; also a broom, dust pan and whisk; also a good quality of curtains or blinds for the windows, and place the same in position; also two good lamps; also two large sized spittoons; also water pitcher and three glasses.

And said Sheriff is hereby directed and ordered to keep said room in order

at all times, and furnish therein at all times requisite fuel, stationery (including ink, erasers, etc.) and oil for lights, etc. And during the absence of the Judge from the County Seat, the said Sheriff is directed to keep the key of said room in his custody, in his office.

The newspaper editorialized: “We dislike very much to make a burlesque of this matter, and yet find it hardly possible to review it in a serious light.” It listed reasons why the county surveyor should not be “bundled out in the cold,” and concluded by stating “Nine months out of the year, the room is to be kept locked, and the key in the possession of the Sheriff, discommoding a whole community to gratify a diseased mind, the peculiar idiosyncrasy of which is a disposition to exercise arbitrary power. We know that there is such a thing as contempt of court. The court should know that there is such an offense as contempt of the sovereign people, of which he may some day be called upon to purge himself.” Judge Harris remained displeased and began absenting himself from court. He soon moved to Carson City and returned to the practice of law in 1873.4

The 1873 courthouse continued in service for the next 28 years and its brick foundation is part of the county’s current courthouse. But it had limitations almost from its beginning. Its ventilation and lighting systems were not properly designed. The grand jury noted its deterioration just two years after its completion. The grand jury also investigated conflicts between the county and court about maintenance. At one point, the grand jury recommended that “at least the cobwebs [be] swept from their hangings to the end that the county’s main building presents a neater appearance than it does today.”

The courthouse reached the end of its functionality shortly after the turn of the century. In 1901, the grand jury recommended the courthouse be lighted by electricity instead of coal oil. A substantial renovation was completed in 1903, and in 1907 the grand jury

recommended that courthouse stoves be replaced with a furnace and heating system. In 1907 the Nevada State Journal rhetorically asked, “Have you seen it [the courthouse] lately? Well, just go down and take a look at the institution wherein the courts dispense law and justice and the county officials perform the public’s work. It will give you a cold chill. It never was much of a building and now it is a shack, compared with what Washoe County should have. To call such a shanty a courthouse is a desecration of our mother tongue. It is not right to let it stand there. The county is too rich and populous to be optically vilified by such a structure.”

Next month I will begin with the 1910 construction of the courthouse currently in use, to include its subsequent additions in the 1940s and 1962, and the county’s efforts to construct a new courthouse that will serve the citizens of Washoe County long into the future.____________________________ 1References for this essay include: Russell W. McDonald, History of Washoe County (Board of County Commissioners of Washoe County, 1982); Second Judicial District Court – A Historical Perspective, Judge Charles N. Harris, https://www.washoecourts.com/Historical/1861/Harris (last visited Aug. 15, 2019). 2 Washoe City began as a lumber camp near Washoe Lake in southern Washoe County to service the growth in Virginia City. It had as many as 2,000 transient residents in 1865. It is now a small ghost town.3 The Central Pacific construction superintendent named the small community after Major General Jesse Reno, a Union Army officer killed at the Battle of South Mountain, Maryland.4 In 1876, President Grant appointed Harris to be Register of the U.S. Land Office in Carson City. Harris served in this capacity until 1880. Harris was also involved with Republican politics. He was a Nevada delegate to the Republican presidential convention in Cincinnati when President Hayes was nominated. In addition to practicing law, he was an editor for Republican newspaper, The Daily Index.

This is number 122 in a series of essays on judicial ethics authored by Judge David Hardy, Second Judicial District Court, Dept. 15.

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September 2019, Vol. 41, No. 8 1 11 0 September 2019, Vol. 41, No. 8

A C R O S S T H E L I N EBy Kelley Carroll, Porter Simon P.C.

“SORRY KID, THAT’S YOUR PROBLEM” – NOTESFROM THE CALIFORNIA TRUST LITIGATION FRONT

The explosion in popularity of using revocable (aka “living”)

trusts as the primary estate planning tool in California, presumably to avoid the California probate system, has created a second boom as well – the field of trust litigation. As the revocable trusts have, shall we say, “matured” to distribution, the rise in conflicts has followed. Conflicts between beneficiaries, conflicts with the trustee, and conflicts with third parties such as the drafting attorney or the trustee’s counsel are all part of this landscape. Inevitably, when meeting with a disgruntled non-trustee, the question arises – “can I get my legal fees paid from the trust?” A new, but unpublished, (so no precedential value and therefore no page cites here) California appellate case gives us another illustration of the bad news we generally must deliver in response to that question.

The case is Mappus v. Mendonca, decided by California’s First Appellate District court from an underlying case in Sonoma County. Mr. Mappus was a beneficiary of his late grandparents’ trust, along with his sister, Ms. Schrah. Ms. Mendonca was the trustee. As so aptly stated by the appellate court in its opening paragraph – “The case involves either an impatient heir or a recalcitrant trustee, depending on one’s perspective.” Mappus, tired of waiting for his inheritance after his grandparents’ deaths (and perhaps irked to learn, only after his grandfather’s death, that Mendonca had been named to replace him as successor trustee), launched court action against the trustee to compel distribution, and for an accounting and additional information about the trust’s status. His sister did not join in the fight, and the trustee, of course, filed opposition.

Mappus partially succeeded in his quest – after seven months from the petition’s filing, and after a contested hearing/trial, he received a distribution from the trust. The court apparently denied his other requests, including one to have the trust pay his legal fees on the ground that the trustee had acted in bad faith in administering the trust during the time the parties were in litigation, and to deny the trustee the use of trust funds to pay her counsel. As so often happens in these cases, additional and somewhat relevant factual details emerged during the litigation process, but ultimately they were not central to the court's holding, so I’m skipping over them in the interest of brevity.

At the trial, as noted above, Mappus got his order compelling distribution, but little else except reimbursement for his costs as prevailing party. Dissatisfied with that outcome, Mappus appealed, but he was hardly the appellate court’s favorite party:

Although Mappus was designated the prevailing party in the trial court, it is questionable whether his intervention by way of petition did anything more surely than to delay the eventual distribution. Indeed, given that Mendonca provided the beneficiaries with an accounting the day after the petition was filed, it is doubtful Mappus’s petition was necessary at all.

In denying Mappus’s requests, the appellate court revisited the foundational rules applicable to these types of situations. Allow me to summarize them:

1. California Probate Code Section 17200 is the typical starting point for trust litigation and lists a wide variety of

trust-related issues that can be pursued under its umbrella. As the appellate decision noted in this case, the usual rule is that beneficiaries pay their own way when they are unhappy with administration and want the court’s intervention. Case law on this point is voluminous, with a recent example cited in this opinion being Smith v. Szeyller (2019) 31 Cal.App.5th 450, 459–460.

2. California does recognize an exception to this general rule for bad faith on the trustee’s part, as stated thusly by the court:[I]f the judge concludes the trustee’s defense of his or her accounting was “without reasonable cause and in bad faith.” Such an award requires a finding of both “bad faith” and action taken “without reasonable cause.” (See Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 926–927 (Uzyel).) Leader held this statute applied to a court’s determination that a trustee unreasonably and in bad faith defended against the beneficiaries’ petition for distribution of trust assets under section 17200. (Leader, at p. 1599.) (Footnote in original omitted.)

3. The appellate court, reviewing the trial court record, easily concluded that the evidence did not support a bad faith finding, and upheld the trial judge’s ruling. In doing so, the appellate court noted the high bar that these bad faith

claims must overcome, and a mere delay in distribution for a period longer than a beneficiary wants, or an accounting that takes some time to prepare and distribute, will not clear this bar.

4. Mappus attempted additional arguments as well, which unfortunately for him, fared no better. He sought to make the trustee’s counsel a proverbial “bad guy” and thus responsible for either Mappus’s fees or a loss of counsel’s own fees – nope. Mappus argued that his sister benefitted from his hard work and should be equitably bound to share in the costs he incurred to avoid an unjust enrichment – nope. (Both, by the way, are frequently used tools from the kit bag, although rarely with any success. Mappus now knows this firsthand.) In the course of rejecting these arguments, the court’s following observation is one that also frequently holds true in cases of this type – “His

[Mappus’s] litigation appears to have been driven more by emotion than by necessity.”

What can we take away from this case for working with our clients? I think of these:

1. Always remind them of the need for patience. Perhaps due to overselling about the ease of trust administration as compared to probate, many clients expect the process to be done almost before it starts. Educating them on the many tasks the trustee must tackle and what that involves can help establish reasonable expectations in terms of timing.

2. Educate clients that they’re likely the only source of paying your attorney fees if they get an urge to file some court action against the trustee. If you think they are being premature, nothing cools most clients off like a requirement to pay you a large retainer for litigation (and helps ensure you don’t work for free).

3. Try and establish a cordial working relationship with the trustee and its counsel from the outset. Don’t be Mappus, who almost from Day 1 was hostile to the trustee. This doesn’t mean that you as counsel must roll over on everything, especially if the trustee’s delay starts to seem excessive, but there are many options before charging off to court.

4. Of course, document all your advice to your client, in case you eventually become the target of their ire when things go poorly for them.

Kelley Carroll is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California and Reno, Nevada. Kelley is a certified specialist in the areas of estate planning, trust and probate law (California Board of Legal Spec ia l izat ion) . He may be reached at carroll@portersimon.com or www.portersimon.com.

September 2019, Vol. 41, No. 8 1 31 2 September 2019, Vol. 41, No. 8

What's new at NADCP in 2019?

S P E C I A L T Y C O U R T SBy Honorable Dorothy Nash Holmes

F A M I L Y L A WBy Alexander Morey, Silverman Kattelman Springgate, Chtd.

Pre-Action Child Support (with a Lament about the Advisory Opinion Doctrine)

I attended RISE19, the 19th annual training conference of the National

Association of Drug Court Professionals in July with 5,000+ attendees, including 12 from Reno Municipal Court. Some new and interesting approaches, trends and programs caught my interest.

Peer Recovery Support Specialists (PRSS)

This is not brand new, as the idea of mentoring comes up often in Drug Courts, but few programs do it. So now there is an organized push to educate courts on the value of incorporating PRSS into our programs or teams—actually use the people who achieved their own recovery and have maintained it. Nationally, now there are many Recovery Community Organizations (RCO) that advocate for policy, carry out community activities, help educate the public and remove the stigma, and perform outreach to bring people seeking recovery closer together with others in sustained recovery. Having “talked the talk and walked the walk” is the basis of Peer Recovery Support. They’ve gone through it and they can help others. The underlying theme of their involvement is “Nothing about us, without us.” It makes sense. After all, who knows the struggle and challenges better?

The essence of this movement is for people to give others non-professional, non-clinical assistance to achieve long-term recovery using their own experiences, some clinical training and supervised internship work. The University of Nevada, Reno offers the Certificate through its CASAT Center. Different programs feature various things like Day Centers for people to hang-out in a “wellness environment” with others in sobriety, recreational activities, life-skills classes, resume-writing and job-finding help, “Mutual aid” meetings (also known as “self-help”)

like Narcotics Anonymous, Cocaine Anonymous, Crystal Meth Anonymous, Trans Recovery, Medication-Assisted Recovery Anonymous and “Celebrate Recovery,” a more traditional 12-step approach made famous in Alcoholics Anonymous. Northern Nevada has just seen the Foundation for Recovery, our first RCO, open at 621 Pyramid Way, Sparks, NV with certified Peer Recovery Specialists and 16 volunteers. Lisa Lee, M.A., C.P.R.S.S., and now a Ph.D. student in public health, is a well-known advocate in our community who has worked at some of Reno-Sparks’ prominent behavioral health and treatment programs. She has lived all the horrors of drug addiction, achieved long-term recovery and is now the Program Director for Foundations for Recovery here in Reno. Our next step in my department is to get Lisa or her volunteers actively involved with our participants.

Family-centered Treatment CourtsAnother theme that appeared in

many of the 300+ classes or discussion sessions at RISE19 was “family-centering” all specialty courts to bring in more parents, spouses, siblings, partners, co-habitants and other relationships. We were told that 8.7 million children live in homes where there is a Substance Use Disorder. Those of us in this business have no reason to doubt the fact that 50% to 70% of the nation’s drug court participants are parents, whether they have custody or contact with their children or not. It was reported to us that studies have shown there is a 65% reduction in recidivism and a 52% savings in financial society costs of programs that put an emphasis on family.

There was recognition that even if a person pulls himself or herself back together, gets housing, gets treatment, gets a job, gets sober and achieves other

short-term goals or long-term objectives, the work is still not done without the family piece being addressed. I have always said in my court that every person needs three things: their place, their purpose and their people. Family reconciliation or repair or re-education can be an underlying issue in all three of those. Every Drug Court Judge knows that even if you get a parent sober and back on her feet, there is still a “big hole” in her life if she doesn’t have her children, or cannot have contact with them.

The solution is to get family members into the courtroom and set up the counseling so some of it includes them. Consider changing the hours of some Drug Court Status Hearings so other family members can also attend. Educate family on the issues related to substance use and abuse and on the facts regarding mental health disorders and treatment. Explain the incentives and sanctions approach to behavior modification. Tell them how the drug/alcohol testing process works and what it proves. Allow attendance at a Parenting Group as a form of self-help. The Drug Court Team, and especially the judge, must be cognizant of each participant’s family situation so that sanctions aren’t imposed that stress or break that family entity. For example, a mom who has to get her kids off to school and has a toddler at home, will obviously have some problems getting treatment or other probation conditions met, whether it be babysitting, transportation, exhaustion, required meetings with teachers/principals, or lack of funds for school supplies. The presenters argued for “less jail and more solutions” that help participants address their family problems. Introduce participants to community resources for families, like

Chapter 125B of the Nevada Revised Statutes deals with child

support. It establishes the obligation of parents to support their children. It sets out a formula to calculate child support. It sets out reasons to deviate from that formula. It establishes various means to secure child support payments. And, in one section, NRS 125B.030, it creates a claim for money for the period before a parent with physical custody begins an action for child support. The statute is short and worth reading in full:

Where the parents of a child do not reside together, the physical custodian of the child may recover from the parent without physical custody a reasonable portion of the cost of care, support, education and maintenance provided by the physical custodian. In the absence of a court order for the support of a child, the parent who has physical custody may recover not more than 4 years’ support furnished before the bringing of the action to establish an obligation for the support of the child.

I submit this statute has been treated as creating a claim for child support “arrears” for the four years preceding an action to establish support, and that the general method for calculating the “arrears” has been to calculate the child support formula amount backward in time. In a recent case, the question “why?” arose. The statute does not use the word “arrears” or “arrearage” even though the term appears throughout the remainder of Chapter 125B, and the statute does not call for a calculation of monthly support based on the non-

custodial parent’s income as do all other support calculations in Chapter 125B. Instead, the statute says a parent “may recover . . . a reasonable portion of the cost of care . . . provided . . . by the physical custodian [but] not more than 4 years’ support furnished before the bringing of the action to establish . . . support.” Further, how could a statute allowing recovery of pre-action costs create “arrears”?

As it turns out, the Nevada Supreme Court has addressed the statute in only two published opinions. In the first, the Supreme Court described the claim as for “reimbursement” when discussing the lower court’s order. Nicholson v. Nicholson, 107 Nev. 279, 280, 809 P.2d 1267, 1268 (1991). The Court reversed the trial court’s order on unrelated grounds. In the second opinion, the Court determined the word “separated” in the former version of the statute did not include a divorced parent attempting to recover support for a period post-divorce. In a sentence that can only be described as dicta, the Court refers to “arrears based on the period of time the noncustodial parent was not supporting the children.” Mason v. Cuisenaire, 122 Nev. 43, 49, 128 P.3d 446, 450 (2006). Certainly because the case turned on unrelated points of law, Mason did not address the earlier description in Nicholson of the claim as “reimbursement”.

Some extra-Nevada case law exists on the subject. For example, in J.A.W. v. D.M.E., 591 A.2d 844 (D.C. 1991), the court held whenever “a court concludes that a parent’s support payments should be made retroactive to the child’s birth, the amount of those payment should be limited to a fair share of only those expenses that were actually made by the other parent, and only those expenses

that the court deems to have been reasonable.” Id. at 849. In Weaver v. Chester, 393 S.E.2d 715 (Ga. Ct. App. 1990), the court stated “we cannot agree with the appellant’s contention that the amount of the back support to which she is entitled is to be measured by the father’s ability to pay during the periods in question rather than by the expenses actually incurred by her on the child’s behalf. . . . In the absence of any legislative enactment expanding this liability for ‘necessaries’ to include liability for items which were not actually furnished to the child but which would have been furnished had the child’s custodian been blessed with greater financial resources, we can conceive of no legal basis for awarding the appellant in this case back support in excess of the amounts she actually expended on the child’s behalf.” Id. at 717-18. In Hicks v. Hicks, 237 S.E.2d 307 (N.C. Ct. App. 1977), the court held that what “the defendant ‘should have paid’ is not the measure of his liability to plaintiff. The measure of defendant’s liability to plaintiff is the amount actually expended by plaintiff which represented the defendant’s share of support. In determining this amount, the court must take into consideration the needs of the children and the ability of the defendant to pay during the time for which reimbursement is sought. The plaintiff is not entitled to be compensated for support for the children provided by others, nor is she entitled to be reimbursed for sums expended by her for the support of the children which represent her share of support as determined by the trial judge.” Id. at 309.

So, does NRS 125B.030 create “arrears”? Does it allow for a calculation

Continued on page 15 Continued on page 16

September 2019, Vol. 41, No. 8 1 51 4 September 2019, Vol. 41, No. 8

SHORT HISTORY OF "NO SET OF FACTS"

A P P E L L A T E B R I E F SBy Adam Hosmer-Henner, McDonald Carano

Adam Hosmer-Henner is a partner at McDonald Carano and practices primarily in the areas of commercial litigation and appellate law. He regularly handles appeals and writ proceedings at the Nevada Supreme Court and the United States Court of Appeals for the Ninth Circuit.

While the federal court system has “Twombly” and “Iqbal,”

Nevada state courts have “Buzz Stew.” Practitioners in Nevada are very used to seeing Buzz Stew, LLC v. City of North Las Vegas cited for the legal standard on a motion to dismiss brought pursuant to NRCP 12(b)(5). 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). Buzz Stew’s talismanic words are that a complaint “should be dismissed only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [it] to relief.” 124 Nev. at 228. The Nevada Supreme Court alone has cited Buzz Stew in approximately 240 opinions and orders, making it one of the most commonly cited cases at the appellate level. Two recent opinions though have perhaps signaled the beginning of the end for Buzz Stew’s ubiquity. In Schiller v. Fidelity National Title Insurance Co., 2019 WL 3202204, *1, 444 P.3d 459

(Nev. 2019) (unpublished), the Supreme Court cited instead to Fitzgerald v. Mobile Billboards, LLC, 134 Nev. Adv. Op. 30, 416 P.3d 209, 210 (2018) but included a parenthetical indicating that Buzz Stew was being quoted. In Kim v. Dickinson Wright, PLLC, 135 Nev. Adv. Op. 20, 442 P.3d 1070, 1073 (2019), the Supreme Court cited to Szymborski v. Spring Mountain Treatment Center, 133 Nev. 638, 641, 403 P.3d 1280, 1283 (2017) and simply stated “internal quotation marks omitted.”

Landmark cases that reach the level of Buzz Stew’s notoriety typically establish a new precedent or have lasting historical or legal significance. Buzz Stew does not fall into these categories. The “no set of facts” standard was not a novel holding even for Nevada as Buzz Stew specifically cited Blackjack Bonding v. Las Vegas Municipal Court, 116 Nev. 1213, 1217, 14 P.3d 1275, 1278 (2000). And the same standard

has remained in place in Nevada since at least 1985. Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985) (“The complaint cannot be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him to relief.”). In Edgar, the Court cited, apparently for the first time1, the iconic language of Conley v. Gibson, 355 U.S. 41, 45–46 (1957), where the “no set of facts” language was confirmed by the United States Supreme Court.

The same general principles can be found in Nevada law even before the adoption of the Rules of Civil Procedure in the early 1950s. Prior to NRCP 12(b)(5) motions, demurrers were considered under a standard where the “pleadings as alleged [are] for the purposes of the demurrer, admitted to be true.” Levy v. Ryland, 32 Nev. 460, 109 P. 905, 909 (1910) (holding that the statute

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1The Nevada Supreme Court did use the phrase “any set of facts” and cited to another case using the phrase “no set of facts” in 1965 but as dicta in a decision based on an appeal from summary judgment. Zalk-Josephs Co. v. Wells Cargo, Inc., 81 Nev. 163, 169, 400 P.2d 621, 624 (1965) (“[A] complaint should not be dismissed for insufficiency, for failure to state a cause of action, unless it appears to a certainty that plaintiff is entitled to no relief under any set of facts which could be proved in support of the claim.”)

of limitations “cannot be successfully pleaded by demurrer” where the pleading states that the discovery of the alleged defect occurred in March 1908 and the complaint was filed in June 1909); see also Knox v. Kearney, 37 Nev. 393, 142 P. 526, 529 (1914) (holding that “facts pleaded in a complaint are considered as true” and a pleading need only contain “sufficient facts to constitute a cause of action”). While these decisions do not use the precise language of Buzz Stew, it appears that the courts would have reached the same result in each decision regardless of the formulation of the legal standard.

Buzz Stew though aimed to promote consistency and engage in light error correction by clarifying that the standard “requires a showing of proof beyond a doubt” instead of “beyond a reasonable doubt.” 124 Nev. at 228 n.6 (“disavow[ing]” a series of cases that purportedly required “a showing of proof beyond a reasonable doubt”). Accordingly, Buzz Stew’s usefulness as an authority is likely because it served as a clear break from a period of ambiguity in the Supreme Court’s opinions and because it directly and clearly restated the legal standard. A move away from the citation of Buzz Stew without an intervening change in the law is probably unnecessary and neither Fitzgerald v. Mobile Billboards, LLC nor Szymborski v. Spring Mountain Treatment Center are catchy enough titles to warrant a stylistic change. Still, if the Nevada Supreme Court begins to cite to either of these other cases as a clearer restatement of the legal standard for dismissal for failure to state a claim, it will only be a matter of time before Buzz Stew is fully replaced by “internal quotation marks omitted.”

Specialty Courts Continued

Big Brothers/Big Sisters, for example. Encourage participants to share their child-care services with one another, to allow an SUD parent both a respite and some “me time” for counseling or treatment.

One presenter, The Honorable Michael Montero, a District Court Judge in Winnemucca, described how his team spent 18 months helping a participant get her kids back, including sending staff with her on a trip to California to attend family court there. That was truly a family-centered approach.

Judge Dorothy Nash Holmes presides over Dept. 3 in Reno Municipal Court. She is adjunct faculty at TMCC and UNR, and teaches a course on Specialty Courts for the online Justice Management Master’s Degree Program at UNR.

Thank you Reno/Carson Messenger Service for helping us with the delivery of the bar

directories!

September 2019, Vol. 41, No. 8 1 71 6 September 2019, Vol. 41, No. 8

l A W L I B R A R Y / P R O B O N O C O R N E R M I L L E N N I A L M I N U T EBy Kelci Binau, McDonald Carano

Annual Anniversary - You did it!Lawyer in the Library Volunteers

Thank you to all our August Lawyer in the Library volunteers! If you are not one already, please consider becoming a Lawyer in the Library volunteer. Thanks to the efforts of our volunteers, each year our program assists over a thousand self-represented litigants in our community. We hold family law and general law programs each week, and the probate program on the third Wednesday of the month. Volunteers in bold have volunteered more than once this year.

Please contact Emily Reed at emily.reed@washoecourts.us or (775) 325-6625 if you would like to volunteer or for further information regarding the Lawyer in the Library program.

Elizabeth J. BassettElizabeth M. BittnerDanielle Christenson

Joe GormanScott H. HusbandsBronagh M. Kelly

Jeremy J. NorkMichael V. Roth

John M. SambergMadelyn ShipmanGary R. Silverman

Sandra A. UnsworthJill K. Whitbeck

New Items at the Washoe County Law Library

Please come down and check out our new materials:

• The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and their Families, vs. 1 & 2, 2019 edition, (Mark E. Sullivan).

• Black’s Law Dictionary, 11thedition, (Bryan A. Garner, editor in chief ).

Legal Assistance Beyond the Law Library

Back in April of this year, the Washoe County Law Library began an outreach program with the goal of bringing legal assistance to an underserved population in our community. We partnered with Eddy House, Northern Nevada’s central intake and assessment facility for homeless and at-risk youth, to provide legal education to the youth that utilize the facility. Similar to our Lawyer in the Library program, volunteer attorneys donate their time and expertise to provide legal information to teens and young adults that may otherwise not have access to help regarding their legal situations.

However, unlike Lawyer in the Library, the attorney and the law library staff take the program out of the library and straight to the youth at the Eddy House. We meet informally, roundtable-style, in a place the youth already feel comfortable. The monthly program we call LAW (Legal Assistance Workshop) is still in its infancy, but interest and popularity is growing by the month. We have already had an amazing group of volunteers: Zelalem Bogale, Douglas Nicholson, Leah Wigren and Jason Guinasso, to date.

Eddy House was founded in 2011 by Lynette Eddy, who had purchased a home in downtown Reno to provide a safe environment to youth who have aged out of the foster care program and subsequently, found themselves homeless. Eddy House provides safety, care, and comfort to homeless at-risk youth ranging in age from 12-24 years old, and serves approximately 60 youth per day. In addition to the LAW program, Eddy House provides the kids with various workshops and other services including: yoga & meditation, food stamps sign-up, use of laptops, mental health counseling, physical & dental health checkups, clothing, Friday night family dinners, snacks, showers, employment & resume assistance, and

many more. We could not be more honored to help with the mission of the founder, Lynette, to work with homeless and at-risk youth to develop life and job skills necessary for sustainable independence.

If you would like more information on Eddy House you can find it at http://eddyhouse.org/ and if you would like to volunteer for LAW please contact Elizabeth Beadle at Elizabeth.Beadle@washoecourts.us or call (775) 328-3251.By: Sarah Bates and Elizabeth Beadle

For many law school graduates, August/September marks the

anniversary of the beginning of our career; our first job as an associate, or rather, an “Associate, Pending Admission to the State Bar of Nevada.” Reflecting back on your first year as an associate doubtlessly unearths a multitude of emotions. There is a good chance as a new associate you were overcome by the excitement of beginning your new profession and let’s face it, no more finals. You most likely experienced fear of the unknown, confusion by office politics and frustration, as you realized that law school was a mere introduction to the tip of the iceberg.

Our first year in the legal profession, many of us celebrated passing our first bar and consoled those of us who did not. A number of us found the strength to re-attempt the same bar or venture out to attempt a new state bar. We began our first job at the law firm of our choice, the law firm that made an offer, or perhaps, as a law clerk for a judge. Some of us were let go within our first year and mustered the courage to venture out in a pressed suit to conquer another round of interviews.

As my one-year anniversary as an associate quickly approaches, my mind has noticeably begun to reflect upon my past year. I began the last year as a mere, hopeful bar taker and I will finish it, a licensed attorney. I feel honored and grateful to be where I am in life, but also greatly humbled by the recognition that this is only the beginning.

While my juris doctorate is behind me, the stimulating journey has just begun. I have thoroughly enjoyed the clients, attorneys, assistants and other professionals I have met over the past year. I have experienced the enlightenment and thought-provoking conversation, as well as an awareness

of the unknown that new projects and issues invariably give rise to.

During my recent time of reflection, I was blessed to have been granted the time to discuss and compare my past year with others who have taken similar paths. Recent conversations have made me realize that we, new attorneys, are not alone in our journeys. Whether you speak with a judge, partner, or senior associate, we all began our journey in the same place, straight out of law school and eager to participate yet full of questions. Our occasional feelings of self-doubt and anxiety are not unique to us and do not mean that we are failures or not cut out to be attorneys. A senior partner once told me, the moment you stop doubting yourself and become too self-assured is when you need to be careful.

For those who recently entered the legal field, my “tip of the iceberg” comment will likely hit home. While law school introduced and exercised our research and analytical skills, one can hardly say that transitioning from a black cap and gown to a suit and heels, equates to job preparedness.

It is ok to have self-doubt, to question your analysis, or spend time reviewing a redline of your recently drafted contract or pleading. The learning curve of the practice of law is real, and, as one partner recently assured me, will forever be present. It is ok that you do not immediately know the answer to a client’s issue, and more often than not, there will not be an immediate answer. The practice of law will forever evolve; however, your comfort level, acceptance of the unknown and familiarity with the process will continue to grow.

Where are you now? Did your career follow the path you thought it would or did it veer down a dirt road and take a few turns to find a paved surface?

Are you at the same law firm or court where you began, or have you journeyed through a few different locations? Are you practicing law in the area you thought you would, a different area, or no longer practicing? Take a moment to reflect on your first few years in the legal profession.

New associates, the next time you have the chance to speak with a partner or judge, ask about their first few years as an attorney and what their journeys were like. Partners, the next time you talk to a new associate, ask them how they are finding the practice of law and whether they would like to discuss any questions or concerns. I guarantee, whichever category you fall into, the party on the receiving side of the question will be grateful for the inquiry.

Kelci Binauy is an Associate with McDonald Carano in the firm's Business Entities & Transactions and Real Estate & Land Use practice groups.

of the formula for child support running backward in time? Does it create a claim for reimbursement of costs actually incurred? We do not know. In the recent case I mentioned, the parties settled. Few people are willing to go through the years of litigation necessary to make law. (Understandably, it is difficult to persuade someone to spend their money and time in the interest of certainty “for those who follow.”) So, because no justiciable controversy remains, the matter is not amenable to appellate review,1 and the uncertainty continues.

Family Law Continued

1Applebaum v. Applebaum, 97 Nev. 11, 12, 621 P.2d 1110, 1110 (1981) (“Appellant’s counsel, at oral argument, admitted that the entire amount awarded in the 1978 judg-ment is now due and owing to the respon-dent. For this reason, we need not address the merits of this appeal. This court will not render advisory opinions on moot or abstract questions. Decisions may be ren-dered only where actual controversies exist.”)

Alexander Morey served as the Honorable Judge Deborah Schumacher’s law clerk from 2008 through 2010 before entering private practice with Silverman, Kattelman, Springgate Chtd. where he practices family law.

WCBA is grateful to C&H Couriers for helping in the delivery of the bar

directories this year!

September 2019, Vol. 41, No. 8 1 91 8 September 2019, Vol. 41, No. 8

E v e n t sSee wcbar.org/events for details and registration

SEPTEMBER

4 Douglas-Carson Legal Professionals, 12 noon, Red's Old 395 Grill, Carson City. Speakers are announced on our website at www.douglascarsonlegalprof.org.

5 State Bar of Nevada TIP Trivia Night, 5:00 to 7:00 p.m. For more information and to register, please visit https://www.nvbar.org/member-services-3895/tip/kickoff.

11 WCBA Luncheon, Reciprocity: The Conversation Continues, 1 Hour CLE, 12 noon, Harrah’s. Register at www.wcbar.org/events.

14NNWLA Tailgate: Join NNWLA for a tailgate and football game at 2:00 p.m. Bring the family for a fun afternoon with games. Cost is $25 per person, and will include your end zone ticket for the game, and food and beverages at the tailgate. Purchase tickets at http://www.nnwla.com/events.html

19CASA Volunteer Recognition Dinner, 5:30 p.m. Visit www.washoecasafoundation.com for more information.

P E O P L E

WCBA Welcomes New Members!

Reed AdlishElko Mining Group LLC9650 Gateway Dr. #202Reno, NV 89521775.453.5577email: reed.adlish@elkomininggroup.com

Ashley Emerzian (Social Member)7294 N. Hulbert Ave.Fresno, CA 93711559.273.5228email: ashley.emerzian@lexisnexis.com

Member Moves

Daniel HaywardBradley Drendel & Jeanney, Ltd.6900 S. McCarran Blvd. #2000PO Box 1987Reno, NV 89505775.335.9999email: dhayward@bdjlaw.com

Randy Wright241 Ridge St. #220 (new suite #)Reno, NV 89501775.786.4111email: randolphwright@rcwlaw.net

Diana ZuccariniLaxalt & Nomura, Ltd.9790 Gateway Dr., Ste. 200Reno, NV 89521775.322.1170email: dzuccarini@laxalt-nomura.com

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After a nice full summer, you may find yourself wanting to get back into a fitness routine. Fall is the perfect time to get your body moving again. It is also a good time to reevaluate your goals and make a plan to get back on track. Here’s why you should fall into fitness:

Exercise boosts brainpower. Energy levels and serotonin increase during and after exercise, leading to a higher level of mental clarity. This will help you to be more effective and productive.Movement melts away stress. Exercise can provide you with the relaxation needed to get through your day. Your family, friends and coworkers will be grateful. 30 minutes of activity is all you need: Setting aside a half hour a day riding a bike with the kids, walking the dog, swimming at the gym, running at the park, golfing with friends or engaging in any physical activity will reward you with many benefits.

HydrationWe hear endlessly that water plays a

major role in our health. Well, it’s true! In dry climates like ours, it’s especially important to consume adequate water throughout the day. Staying hydrated helps:

H E A L T H T I P

• Transport nutrients and remove toxins from the body – keeps the system efficient

• Regulate body temperature, me-tabolism and cravings – this will help with weight loss!

• Maintain and restore fluid bal-ance before, during and after exercise – happy and healthy muscles

Use this simple equation to find out how much water you should drink a day: Body weight (lbs)_______ /2 = _________ = ounces per day

For fun ways to get your water in and keep hydration interesting, check out our infused water recipe: https://smfcpowerofexercise.wordpress.com/2017/05/31/how-to-make-hydration-exciting/

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Saint Mary's Fitness Center offers special rates to WCBA members.

September 2019, Vol. 41, No. 8 2 0

c h a n g e s e r v i c e r e q u e s t e d

PRSRT STD U.S. POSTAGEP A I DRENO, NEVADAPERMIT NO. 418

The

P O S T O F F I C E B O X 1 5 4 8 , R E N O , N E V A D A 8 9 5 0 5

C l a s s i f i e d s Please visit www.wcbar.org/classifieds for full job descriptions & deadlines.

SERVICES

EMPLOYMENT

OFFICE SPACE

1188 CALIFORNIA AVENUE: Office Spaces Available - some with secretarial stations. Kitchen Amenities, Shredding Services, Onsite Notary, Ample Parking. Please contact John at (775) 574-8200 ext. 500 or at rents@weosuites.com.

REAL ESTATE TRANSACTIONAL ASSOCIATE, The Las Vegas office of Brownstein Hyatt Farber Schreck is seeking a Real Estate Transactional Associate. Ideal candidates will have 1-3 years of experience or interest in real estate law or land use, superb drafting skills, a proven track record of working in a law firm, excellent academic performance, strong analytical and interpersonal skills, and the ability to work in a team environment. General real estate or transactional law experience, lending and/or land use experience is preferred, but not required.Please apply by sending a cover letter, resume, and law school transcript to AttorneyRecruiting@BHFS.com. Brownstein Hyatt Farber Schreck is an equal opportunity employer. THE RENO CITY ATTORNEY’S OFFICE seeks an attorney licensed to practice in Nevada, to fill the position of Deputy City Attorney II (Civil) (“DCA”), salary dependent on experience. Salary range $101,500.52 – 132,952.09. Benefits include medical, dental and vision. The DCA will be expected to draft and review contracts, real estate documents, resolutions, and ordinances; perform legal research, prepare legal opinions, advise City officials, and represent the City in state and federal court. The ideal DCA candidate will have strong research and writing skills, and demonstrated expertise in real estate, land use, redevelopment, economic development, municipal law, and/or litigation. Individuals interested in the position are invited to submit the following materials on the City of Reno website: (1) a City of Reno employment application, (2) a resume, (3) a letter of interest, and (4) a writing sample. RENO JUSTICE COURT is seeking a Court Administrator. Salary is $101,920 - $137,675.20 (depending on experience). The Court Administrator is an executive,

at-will position reporting to the six Judges of the Court, with primary administrative action through the Chief Judge. The position is responsible for managing the day-to-day operations of the Court, and for providing leadership and direction to staff in the completion of key initiatives of the Court Work requires the application of exceptional interpersonal skills and problem solving skills, as well as considerable initiative and independent judgment within the framework of a Chief Judge-Court Administrator management model. Please visit https://www.washoecounty.us/rjc/information/careers/announce-court-administrator.php for more information. SUPREME COURT SEEKS FORECLOSURE MEDIATORS The Supreme Court is seeking applications from people wishing to serve as a foreclosure mediator. Individuals appointed by the Supreme Court in 2017 will need to reapply as their 2-year appointments are expiring. The District Courts pay mediators $400 per case when mediation is complete. Individuals interested in becoming an appointed foreclosure mediator should visit https://nvcourts.link/Foreclosure-Mediators For more information, please visit FMPMediator@nvcourts.nv.gov. The Nevada Administrative Office of the Courts (AOC) maintains the list of eligible mediators for the District Courts. The AOC will notify applicants if the Supreme Court appoints them as a foreclosure mediator. The Supreme Court requires appointed individuals to sign and follow the Mediator Model Code of Conduct. VARN (Volunteer Attorneys for Rural Nevadans), has openings for staff attorneys, please visit www.wcbar.org/classified for details. SECOND JUDICIAL DISTRICT COURT Employment Opportunities: * Family Division Contract Mediator * Law Library Assistant III Please visit website for details.

LAWYER REPRESENTATIVE - The United States District Court for the District of Nevada is accepting applications for Lawyer Representatives. Lawyer Representatives provide vital input to the Court on a myriad of issues affecting the operations of the federal courts including but not limited to: rule changes; development of new programs; planning of conferences; and the expenditure of funds from the non-appropriated account. If you are interested, please visit www.nvd.uscourts.gov/lawyer-representatives-united-states-district-court/.

LEGAL RESEARCH & WRITING 20+ years experience at the Nevada Supreme Court, now available on a freelance basis for research and writing projects. Briefs, petitions, motions, etc. tlindeman@appellatesolution.com 775-297-4877.EXPERIENCED PARALEGAL (25+ years) - available on a contractual basis. Multiple practice/jurisdictional areas. Please contact Renee at (775) 954-8473 LAWYER PROFESSIONAL ERRORS AND OMISSIONS INSURANCE PROGRAM. Altus Insurance Agency, Division of Orgill-Singer & Associates, has exceptional value for your Law Office. Over 30 years of serving Nevada. Contact: John Maksimik CIC, CRM at 775-398-2525 or email jmaksimik@orgillsinger.com.