By Dara Goldsmith

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2013, Vol. 34, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Most attorneys consider themselves to be probate attorneys. Really, how much damage can be done? After all, the person whose assets are in issue is deceased. All joking aside, there are important things for every attorney to know about probate, even if they never or rarely darken the doors of the Probate Court.

Finding the right courtroom
Currently, probate matters are assigned to Department 26. This does not mean that Judge Sturman will hear the case. Probate matters are heard by Commissioner Wes Yamashita on Fridays at 9:30 a.m. in Courtroom 9 at the Family Courthouse, 601 North Pecos Drive. This is confusing because Judge Sturman is at the Regional Justice Center. Attorneys may choose to have contested matters placed on Judge Sturman’s calendar. See EDCR 4.16.

Naughty and nice list, or something like that
Like Santa, the Commissioner has a “Naughty and Nice List,” known as the Approved Calendar. This list may be accessed online at www.clarkcountycourts.us/ejdc/courts‑and‑judges/probate. If your matter is not contested, your proposed order is submitted by Tuesday at 4:00 p.m. (three days before the hearing), and if all statutory and local rules are complied with, you may be placed on the approved and granted list. This list is continually updated through Thursday around noon. See EDCR 4.14.

Original wills are to be lodged with the court, not filed as an exhibit
Original Wills are to be lodged with the Court, not filed. Do not attach an original Will to the Petition for Probate. It may be destroyed. By law, an original Will is to be deposited within 30 days of death of the Decedent. See NRS 136.050. Note that there is an $18.00 lodging fee. Send an extra copy of the Will to the courthouse so you get a copy noting the date and time of lodging.

Your assets do not always go to the person you state in your will
Although most people believe that they can leave their estate to whomever they choose, they are mistaken. If your net probate estate is worth $100,000 or less and you have a spouse or minor children, no matter what your Will says, they are entitled to receive your assets. If you desire a different result, explore probate alternatives. The spouse and minor children may even trump unsecured creditors. See NRS 146.070. This is a surprise to many people.

Independent Administration of Estates Act
In 2011, Nevada enacted the Independent Administration of Estates Act. Generally speaking, the Act gives the Personal Representative the ability to avoid seeking court permission for many actions, so long as it gives notice and an opportunity to object to all interested persons of the proposed action. See NRS 143.300-143.815.
Finally, the Probate page on the Clark County Court website contains a bevy of forms and great probate information (www.clarkcountycourts.us/ejdc/courts‑and‑judges/probate). Do not attempt to handle a probate matter without a quick review of this information.

Dara Goldsmith is an attorney with Goldsmith & Guymon. She is a prior CCBA President and presently serves as Chairperson of the Justice League of Nevada.

By Michael C. Mills

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2013, Vol. 34, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

When we file insurance claims, we want our claims handled quickly and efficiently. People turn to lawyer friends for advice when they believe that their insurance company is mishandling their claim. Here are five things you can share with friends and family if they ask about practices covered by Nevada’s Unfair Claims Settlement Practices Act (UCSPA). See NRS 686A.310.

Nevada’s UCSPA allows for a private right of action

Most states do not give the claimant the right to sue the insurance company directly under laws similar to Nevada’s UCSPA, but the Nevada Legislature decided the insureds needed that power. Under NRS 686A.310(2), insureds have a private right of action against the insurance company for any act that amounts to a violation of the law.

Even independent adjusters can be target defendants

In 2011, the Nevada legislature added NRS 684A.030. That provision says that independent adjusters are considered “insurers” for purposes of the UCSPA, so that those independent adjusters might be targets along with the insurance company if a lawsuit needs to be filed.

A successful plaintiff can collect any damages sustained as a result of any UCSPA violation

Nevada’s law provides that an insurer is liable to its insured for any damages sustained by the insured that result from any violation of the law. Those damages might include interest, attorney’s fees, emotional distress, and other consequential damages. Every case will be different.

You don’t have to prove bad faith to recover for a UCSPA violation

UCSPA violations and bad faith are similar, but they are not universally the same. As the court explained in Hart v. Prudential Prop & Cas. Ins. Co., 848 F. Supp 990 (D. Nev. 1994), “[w]hile the statute and the common law [tort of bad faith] may overlap to a limited extent, the statute reaches different conduct than that which is contemplated by the common law tort.” So even if your friend or family member may not be able to show a bad faith denial or delay of a claim, he or she might still have a violation of the Nevada UCSPA.

Regulatory violations require proof of a general business practice—statutory violations do not

Nevada’s insurance regulations give details on claims communications timing. NAC 686A.600–.680. If your friends want to rely on these regulations to prove an unfair claims violation, he or she will have to show that these delays happen with “a frequency which indicates a general business practice”. NAC 686A.600(1). On the other hand, if there is any specific statutory violation, i.e., misrepresenting the terms of the policy, then a one-time violation may be considered an unfair practice. NRS 686A.310(1).

Michael C. Mills, Esq. of Mills & Associates handles cases dealing with insurance coverage, Nevada’s UCSPA, and bad faith. For answers to additional questions about coverage, Nevada’s UCSPA, and insurance bad faith, please have friends and family call Mike at 702-498-6061 or direct them to his Coverage and Bad Faith Law Blog at www.NevadaCoverageLaw.com.

Five Things Every Lawyer Should Know about Family Law

By Marshal S. Willick

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2013, Vol. 34, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Family law encompasses all areas of the law
There is a common misperception that family law is “simple.” Those who actually practice it, however, know that family law incorporates nearly every other area of law, from tort to trademark and business to bankruptcy, plus healthy slices of criminal, tax, and general civil law. A lawyer taking a “simple” divorce can quickly be required to defend a domestic violence charge, unwind a trust, negotiate interstate jurisdiction, divide an ERISA pension, and forensically analyze the marital interest in a business. Staying abreast of developments in all legal disciplines is necessary to practice family law competently and effectively.

Jurisdiction
In most fields of law, jurisdiction is fairly straightforward. In family law, multiple independent jurisdictional rules apply to various issues. A court with jurisdiction over marital status may not have jurisdiction to determine child support, child custody, or to distribute some (or any) property. Every family law attorney must understand the applicable federal, uniform, and Nevada jurisdictional tests, and how to apply them.

Family law can be uncivil
While Family Court is a civil court, emotions often run hot. Loss of a marriage, having or losing contact with a child, and keeping or handing over treasured property triggers sometimes extreme reactions, and can even lead to threats of or attempts at violence directed toward parties, attorneys, or judges. Effective communication between lawyer and client, and reasonable client control, are both more difficult and more necessary than in any other legal field. Maintaining balance among objective analysis, empathetic understanding, and diligent advocacy requires constant effort, and is harder to do well than it seems.

Cases can go on for decades
Family law decisions often change the courses of multiple people’s lives. Unlike most litigation with a defined beginning and end, family law decisions such as custody, support, and alimony are usually modifiable. Even final orders of payments due or property division may take years to complete. Malpractice traps abound and some, such as pension survivorship designations, may not spring for decades. Identifying and avoiding such traps is paramount for responsible family law representation.

The law is always evolving
Even more so than in other legal fields, legislation and appellate decisions can dramatically alter how family law cases proceed. The child support guidelines change annually. The last couple of legislatures provided entirely new kidnapping remedies and procedures for military members. Recently, Rivero altered the meaning of joint child custody,  Ellis altered what must be proven to change child custody, and Landreth altered the entire scope of the jurisdiction of the Family Court. Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009); Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007); Landreth v. Malik, 127 Nev. ___, 251 P.3d 163 (2011). Staying current in the law—locally and nationally—is a must for every competent family law practitioner.

Marshal S. Willick, Esq. is the founder and principal of the AV-rated Willick Law Group in Las Vegas, Nevada, which was founded in 1985, and has dedicated itself exclusively to the field of family law for nearly three decades.

By Anna Y. Park

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2013, Vol. 34, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

As an attorney, you probably get questions from clients or family members about all types of legal issues with the assumption that you are a “jack-of-all-trades.” Should the topic of employment discrimination ever arise, here are five crucial things to keep in mind:

EEOC is the gatekeeper

A lawsuit alleging employment discrimination due to race, color, national origin, sex (including pregnancy & sexual harassment), religion, disability, age, and genetic information cannot be filed in federal court unless a right to sue is granted by the U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces federal anti-discrimination laws. State laws are governed by a comparable state agency, such as the Nevada Equal Rights Commission. Upon the filing of an EEOC charge, a federal investigation ensues. If the EEOC concludes that discrimination occurred and the parties are unable to reach settlement administratively, the agency may sue the employer in the public interest. However, an EEOC charge must be filed within 300 days of the last act of discrimination or any rights may be waived.

Avoid retaliation

Recent U.S. Supreme Court decisions strongly support the overriding principle that employees should be protected from retaliation for engaging in a protected activity, whether it be participating in an investigation or opposing a practice that may be viewed as discriminatory. A claim of retaliation does not rely on the merits of the underlying complaint so long as it was made in good faith.

Be proactive

Preventative measures, such as a good policy and training, make a difference in ensuring a work environment is free from discrimination. Employers should also vigorously investigate complaints and take swift action that would correct and later prevent the conduct from occurring. In harassment cases, the Faragher/Ellerth defense offers a “free pass” for employers that do so.

EEOC can sue big or small

When the EEOC files a federal lawsuit, it is brought on behalf of the public interest. As such, the EEOC is not subject to Federal Rule of Civil Procedure 23 class certification requirements. While the EEOC may seek monetary relief for claimants in any given action, the EEOC’s motivation in bringing suit differs from that of a plaintiff’s lawyer. In addition to make-whole relief from claimants, the EEOC has the authority to seek broad injunctive relief remedies, even in individual cases. See EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987)

Review blanket policies and ensure equal treatment

A blanket rule limiting leave may run afoul of violating the Americans with Disabilities Act by precluding an interactive process for those who are disabled. Selective enforcement of policies, such as an English-only policy, may expose the client to liability. Audits of certain practices or reviews of policies are a way to ensure that blanket exclusions don’t exist and that the civil rights of workers remain intact. For more information concerning these issues, visit www.eeoc.gov or contact your local EEOC office.

Anna Y. Park is the regional attorney for the EEOC’s Los Angeles district, which includes Nevada.

aka “Slaughter House Five, Criminal Law Edition”

By Jeanne Hua

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2013, Vol. 34, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Phone rings in the middle of night. Voice on the other end wants to be bailed out and sue the county for police brutality. You’re discombobulated. You’re Billy Pilgrim in Slaughter House Five. You’re not a criminal defense attorney. You’re a (insert any legal specialization you all make more money than us Don Quixotes). Here are Five Easy Pieces of knowledge that will make you a virtuoso.

DefCon 5
After listening to the slurred voice, you try to remember your bar course on criminal law and procedures.
You can’t remember. You judge instead. Step back. Don’t be judge, jury, and executioner. It is possible for the voice to be at the wrong place at the wrong time. It is possible for police to make mistakes. Leave the Bat Man suit for Halloween. The voice chose you as the person to turn to for a reason. Be that person.
There are four situations for which to be ready: 1) before contact with law enforcement, 2) after contact with law enforcement but before possible arrest, 3) after arrest and out of custody, or 4) after arrest but in custody.

DefCon 4
The slurred voice had a couple of beers. Driving to White Castle, he hit a car. Craving White Castle, he drove on. Chewing on sliders, he suddenly realized he left witnesses at the scene. Panicked, he calls.
You have time to find a criminal defense attorney. Tell the voice not to speak to the police or anyone else. He has the Constitutional right from self-incrimination under the 5th Amendment. If you don’t know any criminal defense attorneys, Nevada Attorney for Criminal Justice has many talented and great looking attorneys as members.

DefCon 3
The voice related that the trip to White Castle was uneventful, but spent all his money on beers. The voice now discovered that the cost of dining and dashing is greater than a dozen sliders. Officer wrote a citation and let him go. But now they want to interview him regarding rash of White Castle dine and dashes.
Same answer as DefCon 4. Officers are trained to make people believe that, if they just chat with them, then things may somehow work out. How things work out is you reading on a sticky phone your client’s confession to your client sitting on the other side of a dirty glass paned window. Go hire a Don Quixote with the latest light saber.

DefCon 2
The voice at the other end of the telephone just got out of jail. Voice has court date and wants to go to court without an attorney. Repeat instructions above and tell him representing himself is similar to performing surgery on himself. In his case, a lobotomy.

DefCon 1
The voice is calling from jail. Find out at which jail he’s located. If he’s not sure, ask him where the alleged incident occurred.

If the allegations took place in Clark County, then it’s the Clark County Detention Center. The bail instructions are posted on the Clark County Web site: http://www.clarkcountynv.gov/depts/ccdc/Pages/PreTrail.aspx. The Clark County Justice Court standard bail will tell you if that voice on the other end of the phone is charged with a crime that you can bail him out on immediately or a charge that a judge has to set: http://www.clarkcountycourts.us/LVJC/pdf/crim/Criminal%20Bail%20Schedule%20September%202011%20(2).pdf.

If the allegations occurred in Las Vegas, then it’s the Las Vegas Detention Center. The bail instructions and Las Vegas Municipal Court Standard Bail are posted on the City of Las Vegas Web site: http://www.lasvegasnevada.gov/information/4171.htm, and http://www.lasvegasnevada.gov/files/Standardized_Fine_Bail_Schedule.pdf.
If the allegations occurred in Henderson, then it’s the Henderson Detention Center, located at 243 S Water St., Henderson, NV 89015. Henderson Justice and Municipal Courts are located at same address and bail can be posted there Mondays through Thursdays, 7:45 a.m. to 5:00 p.m.. Bail after hours is at the “jail bail gate,” located at the back of the building off S. Texas Ave. (702) 267-5245.

Frankly, the best idea to deal with the above scenarios is to 1) befriend a criminal defense attorney, 2) ply with alcohol, 3) earn undying loyalty, 4) keep number on cell, 5) call drinking buddy when needed, and 6) go back to sleep.

Jeannie Hua is a mother of three children, wife of one prosecutor, and defender of many for the past 15 years. Happy to help or just answer questions at (702) 239-5715.

Five Things a Lawyer Should Know about Bankruptcy Law

By Brian D. Shapiro

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2013, Vol. 34, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.