Read the main articles from our “Civil Practice Update” issue of COMMUNIQUÉ (February 2018) listed here:
- “ADKT 0522: Upcoming Amendments to the Nevada Rules of Civil Procedure” By Kristen Martini, Esq.
- “Proposed Amendments to Federal Rule of Evidence 807 – What’s Your Take?” By Lindsay Demaree, Esq.
- “The Eighth Judicial District Court Rules Have Changed; Did You Know?” By Joe Riccio, Esq.
In the print edition, readers can read about court news, bar activities, and other practical content, including:
- “Civility in Practice and Not Just in Honor of Grandma” By CCBA President John P. Aldrich, Esq.
- “View from the Bench: Recent Opinions from the Court of Appeals” By Chief Judge Abbi Silver
- “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
- “Pro Bono Corner: Legal Aid Center of Southern Nevada Pro Bono Project 2017 Award Recipients” By Christine Miller, Esq.
- “Departments: Bar Business, Member Moves, New Members, Court Changes, and The Marketplace”
© 2018 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (February 2018). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
ADKT 0522: Upcoming Amendments to the Nevada Rules of Civil Procedure
By Kristen Martini, Esq.
In 2017, the Supreme Court of Nevada established a committee to propose amendments to the NRCP through ADKT 0522. With guidance from the federal rules, the Committee is examining and voting on recommended revisions for the Court’s consideration and approval.
The NRCP Committee, co-chaired by Justices Pickering and Gibbons, and composed of members of Nevada’s bench and bar, is divided into subcommittees. Each subcommittee is tasked to propose revisions, if any, to the Committee as a whole. The Committee meets once a month to discuss and vote on the proposed revisions for recommendation to the Court.
To date, the Committee approved recommendations for several rules. The recommendations include adopting the federal rule entirely, adopting the federal rule with edits, retaining Nevada’s existing rule, or rejecting the federal rule with either no change or adding additional references to the Nevada rule. The current rule recommendations are as follows:
- Adopting the federal rule: NRCP 2, 18, 21, 27, 28, 29, 44, 46, 63, and 71.
- Adopting the federal rule with edits: NRCP 5, 7, 7.1, 8, 9, 11, 12, 13, 14, 17, 19, 20, 22, 24, 30, 35, 37, 38, 39, 40, 42, 43, 44.1, 49, 56, 57, 62.1, 64, 65.1, 69, 82, and 86.
- No changes or retaining the Nevada rule with edits: NRCP 3, 26, 34, 45, 47, 68.
- Rejecting the federal rule entirely: Federal Rule of Civil Procedure 4.1, 5.1.
- Rejecting the federal rule, but adding additional references: NRCP 5.2.
The Committee’s recommended rules are not final and are subject to revision until the Committee issues its final report and recommendation to the Court, and a formal notice and public comment occur. Before the final recommendation, the Committee is seeking public comment. Any comments may be submitted via email to NRCPcommittee@nvcourts.nv.govt. Additional information about the Committee, its meeting dates, agendas, and minutes, and recommended rules can be found at https://nvcourts.gov/AOC/Committees_and_Commissions/NRCP/Overview/.
Kristen Martini is a commercial litigator with Lewis Roca Rothgerber Christie LLP, practicing in its Las Vegas and Reno offices.She is licensed in Nevada and California, and a former law clerk to Justice Hardesty.
Proposed Amendments to Federal Rule of Evidence 807 – What’s Your Take?
By Lindsay Demaree, Esq.
Federal Rule of Evidence (“FRE”) 807– remember that rule from your law school evidence class? It is the residual hearsay exception. In its current form, FRE 807 allows the admission of a hearsay statement that is not already covered by FRE 803 and FRE 804 if the statement (1) has an “equivalent” guarantee of trustworthiness as these explicit hearsay exceptions; (2) is offered as evidence of a “material fact”; (3) is more probative on the point than any other evidence that the offering party could reasonably obtain; and (4) will serve the “interests of justice” if admitted. In addition, the offering party must, before trial, provide “reasonable notice” of the intent to offer the statement and the statement’s “particulars” to the adverse party.
Room for Improvement
Recently, the United States Judicial Conference’s Committee on Rules of Practice and Procedure recommended various amendments to FRE 807. According to the May 2017 report of the Advisory Committee on Evidence Rules, the amendments are intended to improve—but not expand—the residual hearsay exception. Below are a few of the recommended changes.
The amendment omits the reference to “equivalent” guaranties of trustworthiness. As explained in the Advisory Committee’s report, this standard “is exceedingly difficult to apply because there is no unitary standard of trustworthiness in the Rule 803 and 804 exceptions.” Instead, the proposed amendment requires a court to determine whether there are “sufficient guarantees of trustworthiness—after considering the totality of the circumstances under which it was made and any evidence corroborating the statement.” Thus, the amendment also clarifies an ongoing dispute in the federal courts about whether corroborating evidence may be considered under FRE 807.
The amendment omits references to “material fact” and “interests of justice” because these terms fail to add meaning. The Advisory Committee found that courts have generally held that “material” means merely “relevant,” an admissibility standard addressed in other evidentiary rules. Similarly, the phrase “interests of justice” only reiterates the same guidance set forth in FRE 102.
Finally, the amendment revises the notice requirement in four ways. First, it explicitly permits a court to excuse lack of notice for good cause. Second, it omits the word “particulars,” which led to unnecessary arguments about the meaning of this vague term. Third, the amendment requires notice in writing to avoid disputes about whether notice was, in fact, provided. And fourth, it omits the need to provide the declarant’s address, which is often unknown because a residual hearsay declarant generally is unavailable.
“If It Ain’t Broke…”
Not everyone agrees with these proposed revisions, however. In the words of Professor Victor Gold (a professor at Loyola Law School and author of “The Three Commandments of Amending the Federal Rules of Evidence, 85 Fordham L. Rev. 1615 (2017)), “if it ain’t broke, don’t fix it.” Professor Gold notes, among other things, that district courts seem to have little trouble applying the current “equivalent circumstantial guarantees of trustworthiness” standard. For example, according to a 2010 Ninth Circuit case, only once has a circuit court reversed a district court to require admission of a statement under FRE 807. Additionally, while parties often invoke FRE 807, courts using the current rule exclude the proffered hearsay evidence more often than they admit it—a result that is consistent with Congress’s intent that the residual hearsay exception should “be used very rarely, and only in exceptional circumstances.”
Further, contrary to this legislative intent and to the Advisory Committee’s efforts to improve, but not expand, the residual hearsay exception, the proposed amendment provides courts with additional bases for authorizing an exception. While the hearsay exceptions under FRE 803 and FRE 804 only permit a court to consider the circumstances surrounding the hearsay statement, the revised version of FRE 807 would permit a court to consider surrounding circumstances and “any evidence corroborating” the hearsay statement. The broad term “any evidence” appears to widen the door of admissibility under FRE 807. As Professor Gold asks, “Can two items of otherwise inadmissible hearsay corroborate each other and, thus, bootstrap each into admissibility?”
Similarly, while the amendments to the notice requirements appear, on their face, to provide clarity, the express statement that the court may excuse a lack of notice upon a showing of “good cause” will inevitably invite argument on this issue. Indeed, given the various—and, at times, minimally rigorous—definitions of “good cause,” this change also seems to expand the current reach of FRE 807.
What About You?
What are your thoughts on the proposed amendments to FRE 807? The period for public comment closes on February 15, 2018. To weigh in on the debate, visit http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment. Only time will tell what version of FRE 807 the next class of law school students will get to learn . . .
Lindsay Demaree is an attorney at Ballard Spahr LLP, where she focuses on consumer financial services litigation.
The Eighth Judicial District Court Rules Have Changed; Did You Know?
By Joe Riccio, Esq.
Effective January 27, 2017, the practice of law in the Eighth Judicial District Court Family Division sustained a major overhaul. Throughout the past year, many lawyers have continued to practice under the former Eighth District Court Rules, and have either damaged their client’s cases, exposed themselves to liability, or both. Embedded in the thread of every good attorney is having full knowledge of the facts of your case, an understanding of the controlling law, and knowledge of what your judge expects from you.
For those who have not visited the amended Eighth Judicial District Court Rules (“EDCR”), they can be found in Part V. Family Division Matters; Guardianships. This article will not highlight each amendment, but will reference the rules most relevant to most domestic cases.
One amendment can be found in EDCR 5.302, which states that a parent must take the required co-parenting class within 45 days of service of the complaint for divorce or custody. Prior to amending the rule, the parenting class, also known as COPE, had to be taken before the final decree was signed and filed. The prior practice made little to no sense because parents were not required to learn about co-parenting until the divorce was virtually over. Now, EDCR 5.302 requires parents to learn about co-parenting early in the process, which promotes better parenting and less conflict during the divorce and/or custody proceedings.
Another amendment can be found in EDCR 5.205, which deals with how exhibits must be produced when seeking judicial relief. Envision walking proudly into court for a motion hearing because you are prepared, have a well thought out legal argument that the judge is going to receive well, and have exhibits proving your argument. Before you can introduce yourself on behalf of your client, the judge glares at you and strikes all of the exhibits attached to your pleading. Why? The answer can be found in EDCR 5.205. All exhibits produced in a pleading: 1) must be produced through discovery or NRCP 16.2 beforehand; 2) must be Bates stamped or otherwise identified by page number at the bottom right corner per EDCR 5.205(b); and 3) collective exhibits to a filing must be filed as a separate appendix, including a table of contents identifying each exhibit. See EDCR 5.205. If EDCR 5.205 is not followed, your exhibits may be stricken from the record altogether.
Cases involving divorce or child custody require that a Financial Disclosure Form (“FDF”) be filed by each party pursuant to NRCP 16.205(b)(1). The new amendments require that an FDF be both filed and served no later than 30 days after service of an answer or response to the complaint/petition. However, EDCR 5.506(d) now states that, if an attorney decides to file an emergency motion on behalf of their client or a standard motion that is prior to the 30-day requirement, he or she must also file and serve the FDF within two days of filing the motion if financial relief is sought. EDCR 5.506(d) suggests that failing to file an FDF within two days of filing a motion for financial relief may lead to your client potentially losing on all requests for financial relief. With that mistake comes increased attorney’s fees to your client, costs for inefficiently prompting the court to set an additional hearing to deal with the same finances that should have been temporarily adjudicated at the first hearing, and a loss of respect from your judge. EDCR 5.506(g) further indicates that the FDF must contain the case information, household information, and income and expenses. This is important because many attorneys who are unaware of this rule often file the FDF without the appropriate sections completed because it is not a divorce action. However, EDCR 5.506(g) now requires that the information provided be uniform across the board, even in a non-divorce proceeding, such as child custody.
One more notable change is found in EDCR 5.402, specifically EDCR 5.402(c). The rule now provides the court the ability to issue interim orders at a case management conference “as necessary on unresolved issues.” There have been countless times where an attorney has walked through the halls of family court and heard audible echoes sternly stating, “It is not before me today,” or “Counsel, file the appropriate motion.” Hear this no more; if counsel is at a case management conference, and has filed the optional case management brief pursuant to EDCR 5.401, counsel may just delight their client with temporary orders “as necessary on unresolved issues.” This is the ultimate result because you can affordably get orders without the need for expensive motion practice, and your client will be pleased that you know these new rules.
Joe Riccio practices law for Pecos Law Group doing business as Vegas West Attorneys, and has been licensed in Nevada since 2008.
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