Avoidable Pitfalls: Distinctions Between Civil Practice in State and Court and Federal Court
By Lisa Zastrow

This article is intended to provide a very brief snapshot of a few distinctions between civil procedure in state court and federal court in Clark County. More than anything, the idea is to convey that the practice in both courts can be as different as day and night and to impress upon any novice to keep this in mind before subjecting yourself (and your clients) to unnecessary pitfalls. The distinctions identified in this article mostly, unfortunately, were not discovered through scholarly research; rather, they were discovered though trial (no pun intended) and error.

Does a Motion to Dismiss Toll Discovery? Not in Federal Court.
In state court, the general provisions governing discovery are found at NRCP. 16.1. In federal court, the same rules are found at FRCP 26. Both rules set forth the requirement for an initial discovery conference, provide for mandatory initial disclosures, detail the form of disclosures and set discovery scope and limits. As a threshold matter, both rules set forth the timing and sequence of discovery. It is at this threshold level that the rules are sharply different. After drafting and arguing a number of motions to dismiss complaints in state court, I recently had an experience in federal court that still leaves me a little puzzled. I was involved in filing a motion to dismiss in federal court, but shortly thereafter received a demand to appear at an initial discovery conference. It was only then that I realized that discovery will proceed in federal court regardless of a pending motion to dismiss. Specifically, it was always my experience in state court that once a motion to dismiss was filed in lieu of an answer, no discovery went forward. In state court, parties are to appear at an early case conference within "30 days after the filing of an answer by the first answering defendant . . . , " with discovery commencing thereafter. See NRCP 16.1(b)(1). If a motion to dismiss is pending, no answer is filed; thus, absent a court order, no discovery would commence.

This is not the case in federal court; discovery is not automatically tolled in federal court by the filing of a motion to dismiss. In federal court, a party must make the initial disclosures at or within 14 days after the parties’ early case conference (Rule 26(f) conference). The timing of the early case conference is triggered by the service of the complaint or the entry of appearance by a defendant – not the filing of an answer. See Fed.R.Civ.P.16(b); see also Fed.R.Civ.P.26(f).

Discovery Disputes: Reconsideration of a Discovery Order
In state court, all discovery matters, unless otherwise ordered, are heard and decided by the discovery commissioner. See EDCR 2.34(a). In federal court, a magistrate judge may hear and finally determine any pretrial matter, unless otherwise excluded. See Local Federal Rule IB 1-3. Although there are any number of distinctions between the procedure before the discovery commissioner and the magistrate, one key distinction is the process of having a decision by either reconsidered by the district trial judge. In state court, the process of seeking reconsideration is more formulaic than in federal court. After a discovery commissioner’s ruling, the parties are served with a report and recommendation which includes a notification that the parties have five (5) days from the date or receipt within which to file written objections. See Nev.R.Civ.P 16.1(d)(2); see also EDCR 2.34(f). A party need not necessarily submit briefing on the matter at that time. The Court will, in many cases, order a hearing on the merits.

The same is not true in federal court. In federal court, the magistrate will issue a formal order – as opposed to a "report and recommendation." Any party seeking review must file written objections together with a memorandum of points and authorities, with the district trial judge within 10 days from the date of service of the ruling by the magistrate. See Local Federal Rule IB 1-3. The moving party must show that the magistrate’s ruling is "clearly erroneous or contrary to law," quite a high standard of review. The judge may affirm, reverse or modify the ruling and may remand it for furtheronsideration.

The lesson learned here is: do not assume that you will be entitled to reconsideration if you disagree with the magistrate’s decision (or the discovery commissioner’s decision). The federal court "clearly erroneous or contrary to law" standard can be quite difficult to satisfy. Of course, in either court, reconsideration is not easily obtainable and the district trial judge will likely defer to the discovery commissioner or magistrate.

Pretrial and Related Issues: Calendar, Calendar, Calendar
One of the major distinctions between state and federal court appears in how various deadlines are or are not tied to a trial setting. If you spend a majority of your time practicing in state court, this can be an area of major significance. You should force yourself to forget everything you know about state court when planning and considering a number of issues, including when to file dispositive motions. In both state court and federal court, deadlines for dispositive motions and other discovery deadlines are set in the scheduling order, which issues after the early case conference. In state court, a trial setting order is served sometime thereafter. Therefore, in most state court cases, parties may carry out discovery seeking a number of extensions prior to their known trial setting. The parties have an understanding of when trial is set and therefore when dispositive motions are due.

In federal court, the parties will not receive a trial setting order until after discovery has been concluded and the parties submit their joint pretrial order. See Local Federal Rule 16-3; see also Local Federal Rule 16-4. Therefore, the deadline to file dispositive motions, and possibly other related pre-trial motions, in federal court will likely be well before the parties even have a trial setting. Those accustomed to state practice must keep this difference in mind to avoid the mistaken belief that there are months remaining to file dispositive motions, as there is no trial setting, when in fact the deadline may have passed.

Additionally, those who primarily practice in state court understand that the joint pretrial order is due in very close proximity to the trial setting and will therefore prepare their case accordingly. Again, contrast this to federal court where the pretrial order is what triggers the trial setting. Meaning, in federal court, the parties must have their case virtually entirely prepared, listing all witnesses and exhibits to be used at trial, sometimes, a year or more before they actually go to trial.

The lessons here are plan accordingly, forget what you know about state court when practicing in federal court. More importantly, make sure your calendaring system is perfect. If you have a computerized system, back it up with constant review of upcoming deadlines. You may wish to keep your own handwritten calendar, as well.

Final Practice Tip: Avoid the "I’m Too Busy" Mantra
A good lawyer friend of mine finds it somewhat offensive when he hears lawyers constantly repeating the "I’m too busy" mantra. I think my friend views this mantra as bad lawyering and arrogance. Although I am often guilty of overusing the "I’m too busy" response myself, I tend to agree with him. I have recently begun to better understand that in today’s litigation climate (and all practice areas) of blackberries and cell phones, boundaries are disappearing and clients’ access to their lawyers is immediate – even when in most cases their needs are not.

This constant state of immediately responding to lower priority client needs can result in overload and the overuse of the "I’m too busy" mantra. And, for the purposes of this article, can distract us from honing our practice skills. Although I’m not convinced that diligent research of rules, ALR’s, and/or Am Jur’s would have saved me from a majority of the mistakes I’ve made over the years, no one can dispute that lawyers have a duty to fight the ever mounting "business" and take responsibility by learning and implementing the rules where they practice, not only through death by fire, trial and error, but by studying the Rules (even if you are "too busy.").

Trial Technology
By Timothy Thomas

Who would have guessed that in the 21^st century, the practice of litigation would have changed so much? Looking back through history, the practice of law has evolved from wigs, robes, and strict formality to suits, briefcases, and television cameras. Through all of these changes, the presentation of evidence has remained fairly constant. There have always been concerns over whether evidence or testimony is trustworthy, authentic or misleading. In the late 1980s, the use of video to recreate depictions of factual events such as airplane crashes raised concerns over whether the evidence was accurately portrayed to the jury. In the new millennium, we have the ability to manipulate the facts, documents, photographs, and even testimony through the use of computer technology in ways that were unimaginable just a decade ago. Like all technology, these new cutting edge techniques can make trial more efficient, more informative, and more entertaining for the jury and the judge, but they can also raise concerns over whether what the jury sees are actually factual events or part of a show put on by the attorneys.

There is a benefit that goes along with processing evidence on paper and display panels. By using enlarged photographs or documents, the attorney can choose to leave a piece of evidence, such as a crime scene, on display for a jury to see throughout the presentation of other evidence. Likewise, the handling of the original document, the actual piece of equipment or evidence, and the use of simulated models helps the jury make a personal connection to the scene, the incident, and the key events in question. It has long been a useful trial tactic to use diagrams and hand drawn charts created during trial to lead the jury through the logic of the legal theory.

With new technology that has been installed in the courtrooms, the attorneys for both parties can prepare presentations and bring them to court on a laptop computer. The courtroom ELMO system allows a witness to view a photograph or document and interact with the evidence. For example, the expert can touch the monitor at the witness stand and draw a line on the display, even though the actual photograph is on an overhead-type of machine. The line on the display is transmitted and is visible on the monitors in front of the judge, jury, and opposing counsel. The display can be modified by the attorneys and the witness for the clarification of the jury; however, the original piece of evidence remains unchanged. Unfortunately, the changes are for clarification only and do not become admissible evidence that can be taken to the deliberation room by the jury, while an enlarged display panel or handwritten chart can be moved into evidence.

Counsel have a technological advantage as well. Through modern litigation software programs, such as Summation, all prior discovery, deposition testimony, and pleadings can be stored electronically. The attorney then has the ability to highlight and locate prior testimony or a specific section of a document within minutes and to bring it up on the display monitors in the courtroom. The modern courtroom has wired connections located at counsel’s tables for this purpose. Since these programs require the documents to be scanned and/or downloaded into the program, the cost can be prohibitive. These programs may not be the most efficient choice for a small case with limited evidence. However, in a case where millions of dollars may be on the line, and that may involve many deposition transcripts and potentially millions of documents, the use of these programs is actually the most efficient means to handle the large quantities of evidence for a trial presentation.

While this technology was most likely developed to assist with presenting evidence to a jury, it is often useful even in a bench trial. While some judges are more skeptical of evidence and the accuracy of what is being presented, most judges at least appreciate the advantage of reading pleadings on computer monitors, available due to the electronic filing procedures used by the court administration. A judge need not page through a thick unmanageable binder of documents to find the actual page referenced by counsel. By using the courtroom monitor, the document can be placed before the judge without delay or the possibility of having different participants looking at different evidence.

With all of these technological options available, counsel can often be intimidated. It is often easier to stick with the tried-and-true methods of presenting evidence. In some cases, the traditional and methodical methods can be advantageous. However, in a large case, opposing counsel may have retained and utilized the latest experts and technology to explain their client’s position clearly and concisely in a matter of minutes instead of hours. If you are required to present evidence explaining a complex theory of defense in the face of such efficiency, you may be doing your client and yourself a disservice if you fail to adequately prepare.

Additionally, a lack of familiarity with the use of the equipment can give a negative appearance and impression to the members of the jury or to the judge. Effective trial presentation is based primarily upon preparation, preparation, preparation. The modern practice of law requires that being prepared to present evidence includes competently using technology as well, or at the very least, having a fully informed paralegal to assist you at trial. Fortunately, the court clerk’s office is very willing to help—if you call beforehand—and allow counsel to have access to the courtroom technology prior to trial, both to train on the equipment and to practice the presentation of evidence. The best prepared presentation of video, powerpoint, and Summation can be derailed by the lack of a proper connection or the inability to operate the computer.

Your client and witnesses should also be prepared to interact with the technology that you are using for trial presentation. If your witness cannot communicate the necessary information, the point may be lost on a jury. Juries are made up of everyday people from various backgrounds. Today’s society is very familiar with communications through video and technological means. High definition televisions, super-technical criminal investigation television programs, and the fact finder’s need to understand your factual story quickly require that the evidence be presented in a fashion that will actually reach your audience. You and your client should work together closely to prepare the trial presentation. If your client knows where your presentation is going and what is being communicated, the evidence is clearer and your story is more effective.

New technology isn’t just a fad or a passing fancy, it is here to stay—at least until the next best thing comes along to make it obsolete. As litigators, we need to be prepared for whatever is thrown at us in the courtroom. Many of us pride ourselves on the ability to adjust and appear confident under many circumstances. Don’t let the technology slow you down. Be prepared and you will control your case and the trial.