June-July 2019

Click cover image to download full 40-page issue (4.7 MB PDF file).

View the“Family Law” issue of COMMUNIQUÉ (June/July 2019), the official publication of the Clark County Bar Association. See features written by members of Nevada’s legal community listed as follows:

Additional content may be found in the 40 pages of the full color issue of the publication (printed magazine and PDF version) including these special features:

  • Practicing Family Law Can Be Fun” ” By Clark County Bar President Jason P. Stoffel
  • View from the Bench: “Understanding the Revised Nevada Rules of Civil Procedure” by Chief Judge Linda Marie Bell
  • Pro Bono Corner: “Pro Bono: The Desire for Justice in All of Us” by Sagar Raich, Esq.
  • Bar Activities
  • Member Moves
  • Court News
  • The Marketplace

Special thanks to the following advertisers for their support of COMMUNIQUÉ (June/July 2019):

Note in regards to CCBA Article #6: The Clark County Bar Association (CCBA) will offer 1.0 AAMH Continuing Legal Education (CLE) Credit (for 2019) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, 717 South 8th Street, Las Vegas, Nevada, 89101, and per the offer described in the print and PDF versions of the June/July 2019 issue of COMMUNIQUÉ (see pages 28-34). CCBA is an Accredited Provider with the NV CLE Board.

© 2019 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (June/July 2019). 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.


Using an Offer of Judgment to Your Advantage at a Divorce Trial

By Jason P. Stoffel, Esq. and the Honorable Bill Henderson

Judge William Henderson
Jason P. Stoffel

The astute practitioner should be aware of rules and procedure that can simplify the divorce process and achieve client goals, and be mindful that settlement should be encouraged at all stages of the litigation. This article will focus on the effective use of an offer of judgment (“OOJ”) at a divorce trial.

After the initial filings and the early case conference and case management conference, one should know the “value” of the case and the “walk-away” number to resolve the litigation. In other words, why spend dollars to chase dimes?

An OOJ is helpful in family law cases to encourage settlement after some basic discovery is done on a case. The rules on an OOJ is found in Rule 68 of the Nevada Rules of Civil Procedure and NRS 125.141.

Basically, the idea is to put in writing at least ten days before the divorce trial (21 days for general civil litigation) what you believe the divorce settlement should be. This is served onto opposing counsel/opposing party (not filed with the court).

If the result obtained at trial is less favorable to the party that rejected the offer, then the court can consider the OOJ. Most courts do not want to see the actual OOJ that was made but it is a good idea to ask the court for permission to file the OOJ after the trial date and then submit it with the memo of fees/costs to maximize your client’s recovery and hopefully get an award of attorney’s fees.

NRS 125.141(5)(e) is on point here as a factor considered by the court when taking the appropriate action. In summary, the family court encourages settlement during litigation and the conduct of the parties and counsel can be viewed with scrutiny to see who caused the case not to settle and incur more litigation fees.

However, the rules do indicate in NRS 125.141(6) that this litigation tool to encourage settlement does not apply in a custody case or a child support/spousal support case. Most importantly, if an offer includes a support or custody proposal, the entire offer is deemed void in its entirety. While this law has been on the books since 1999, all too often an attorney should “know better” and fail to read the entire statute addressing this.

An OOJ, although rarely used because so many cases involve custody litigation and the financial support of another, should be strongly considered to encourage settlement and minimize legal fees.

At trial, use the time you have wisely. Sometimes a lengthy opening statement is not the best use of time. Know your audience. Know your client goals. Make evidentiary objections as needed.

Your closing statement summarizes your case and what the evidence supports. Remind the judge that there was an OOJ made as well and that it is your belief that the offer should have been accepted to avoid a costly and lengthy trial.

Hopefully an OOJ was made. If it was not accepted, the court will want to see billing statements of counsel and the filed version of the OOJ. The court can make an award of attorney’s fees in all appropriate situations.

The final takeaway from this article is to stress the importance of being prepared, walking the court through the theory of the case, and expecting an outcome that has been briefed and that the evidence supports at the time of trial. Use an OOJ as needed to be an effective advocate.

Observations from Judge Henderson

A few more observations on the use of OOJs in family law cases might be helpful. One obvious question that springs to mind is why is an OOJ still a relatively rare occurrence even though they have now been authorized by statute for several years? The most obvious explanation for this is that an OOJ is not appropriate in cases that address matters such as custody, child support, and alimony.

Therefore, if a case includes custodial issues and child support issues (and the majority of cases do), and/or also includes an alimony issue (which a large percentage of cases do), and since an OOJ is precluded in those areas, practitioners likely believe there is simply no reason to bother with an OOJ. This raises the issue of “globularity” and the dynamic that an OOJ is pointless unless it can embrace all issues and encompass a proposed global resolution. No global resolution can be proposed if some of the main issues in a case, such as child custody, child support, and alimony, are not appropriate to include in an OOJ.

But in family law cases, even if a party submits an OOJ on some financial issue where it is permissible, the OOJ will have no effect once it becomes apparent that critical issues, such as custody, child support, and alimony, were not included in the OOJ because they could not be included. This is where globularity comes into play. In family law cases, a party cannot effectively cherry pick out certain issues on which to submit an OOJ, if globularity cannot possibly be established, as the critical issues mentioned were not included because it is not permissible to include them.

As a result, the tool of an OOJ is seldom used in these cases. By taking this across-the-board view, attorneys are missing a potential golden opportunity, albeit an opportunity which is only available in a relatively small and narrow niche of cases. An example is helpful. Let’s say the parties actually have a case where there are no children and no alimony issues.

Let’s also say that the few remaining financial issues are very limited and are appropriate for the OOJ procedure. With an OOJ on these remaining issues, if the OOJ is accepted, globularity can be established, as the whole case is resolved once those two issues are resolved. If a practitioner has a case that is that clean and direct, and there is only one, or only a few major assets, and each lends themselves appropriately to an OOJ procedure, then an OOJ can effectively be used.

Let’s say the case revolves around two major assets, both of which are free and clear with no encumbrances. If an award of those two assets establishes globularity and resolves the entire case, it can be appropriate to submit an OOJ indicating that if your client is awarded both assets that he or she will pay the opposing side $80,000 for Asset A and $125,000 for Asset B.

But we seldom see this, even in cases that are that direct and can be completely resolved with the rulings as to a remaining asset or two. In such instances, attorneys should give serious thought to this OOJ procedure.

Jason P. Stoffel, Esq. is one of the partners of Roberts Stoffel Family Law Group in Las Vegas. His area of practice for 15 years has been in Family Law. He is the current president of the Clark County Bar Association.

Judge William Henderson is the District Court Judge assigned to Department R of the Family Court and has served in that capacity since 2009 and was re-elected in 2014. Prior to becoming a judge, he was in private practice for over 20 years practicing in Family Law and Civil Litigation.


Welcome Back Potter! Issues Surrounding Relocation.

By Hon. Mathew Harter

Judge Harter’s impersonation of Mr. Kotter.

In Inboden v. Ayon, 431 P.3d 39 (2018) (an unpublished disposition; see NRAP 36(c)), the mother relocated to Arizona before the custody action in Nevada was filed. Two salient points were made. First, the Supreme Court of Nevada clarified that the “case does not fall within NRS 125C.007’s purview because that statute addresses petitions to relocate filed in actions where primary or joint physical custody has already been established by court order.” The Court then cited to Druckman v. Ruscitti, 327 P.3d 511 (2014) where that Court held that when “considering a motion to relocate and determining the parents’ custodial rights, the court must decide ‘whether it is in the best interest of the child to live with parent A in a different state or parent B in Nevada.’” Id. at 515 (quoting Potter v. Potter, 119 P.3d 1246 (2005)). The Court in Druckman decided “to clarify Potter and conclude that the district court must incorporate the five factors in Schwartz into its best-interest analysis.” Id.; Schwartz v. Schwartz, 812 P.2d 1268 (1991). The Court in Druckman also stated that “court[s] may nevertheless establish the parents’ custodial rights apart from the relocation if either parent so requests.” Id. (emphasis added).

The legal strategist’s mind should be churning. If there is not a final custodial order and your client is opposed to relocation, why not make it more difficult by requesting that a custodial decision be made first? However, can a trial court truly ignore the fact that relocation is an unresolved issue? In Primm v. Lopes, 853 P.2d 103 (1993) (post-Schwartz), the Court held “if the district court in its broad discretion finds that a parent’s relocation to another state does not serve the best interest of the child, then the court should be able to consider the relocation in resolving the custody matter.” Id. at 105. If the moving party is not awarded primary physical custody, the relocation request would seemingly end since a Druckman motion is one for primary custody and permission to relocate.

Another arrow with pinpoint accuracy for the legal strategist’s quiver when no final custodial order exists is Hayes v. Gallacher, 972 P.2d 1138 (1999). The Court held “even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent should retain primary custody and be allowed to relocate if he or she shows that the relocation would be better for the child than a transfer of primary custody to the other parent. Primary custody should not be given to a parent who is not able or fit to exercise this right, or whose relationship with the child is such that the modification is not in the child’s best interest.” Id. at 1142 (emphasis added). “What constitutes being unfit can vary from case to case but generally includes continued drug use, criminal activity, domestic violence, or an overall inability to provide for the child’s physical, mental or emotional health and development.” In re N.J., 221 P.3d 1255, 1262 (2009) (TPR case). It would seemingly be expedient if the movant could prove this basis.

A second salient point from Indoben, the Court concluded that by presuming a prior joint custody order existed and employing a legal fiction that the parents still lived in the same state, the district court did not abuse its discretion in its application of NRS 125C.007, finding substantial evidence supported the district court’s conclusion. The apparent practical lesson? In an abundance of caution, employ NRS 125C.007 as it is overly inclusive.

When using NRS 125C.007, make sure that all the requirements are properly addressed. It is an onerous two-prong analysis. The first prong includes three factors, one being a best interest analysis, which can be exhaustive because NRS 125C.0035(4) includes twelve subfactors and a catchall phrase (“among other things”). If the first prong is not met, the analysis stops. The second prong of 125C.007 includes the five factors from Schwartz (supra) and one catchall phrase (“any other factor necessary to assist the court”). For each of the factors submitted under this prong, six subfactors must be weighed by the court, including “the impact [1] on the child, [2] the relocating parent and [3] the non-relocating parent, including, without limitation, the extent to which the compelling interests of [4] the child, [5] the relocating parent, and [6] the non-relocating parent are accommodated.” NRS 125.007(2). Therefore, a complete 125C.007 analysis requires at a minimum fourteen factors/subfactors be considered in the first prong and then thirty factors/subfactors be weighed in the second prong. Be prepared to address all parts, or the relocation request may be denied.

Judge Mathew Harter is a Nevada native (Bonanza/UNLV). He received his J.D. cum laude in 1994 from W. Michigan University where he served on Law Review and at two indigent law clinics. He was a Law Clerk for Judge Gerald Hardcastle and then started a solo law practice in 1995 primarily in Family Law. He was elected to Dept. N in 2008 and then re-elected in 2014.


Beating Burnout: A Lawyer’s Guide

Carli Sansone
Shann D. Winesett

By Carli L. Sansone, Esq. and Shann D. Winesett, Esq.

Attorney burnout is far too common a problem in the legal profession. Whether an attorney practices in criminal law, family law, corporate law, or any other area, the attorney faces daily stresses due to an occupation that has grown increasingly combative. As Dr. Amiram Elwork notes: “it is generally known that our adversarial legal system tends to promote a Machiavellian environment, in which aggression, selfishness, hostility, suspiciousness, and cynicism are widespread.” Amiram Elwork, Ph.D., Stress Management for Lawyers 21 (3d ed. 2007). In this environment, attorneys might, and often do, find themselves in an adversarial situation with not only the opposing lawyer but their clients (who often have unrealistic expectations) and their superiors (who often make unreasonable demands). Considering that law schools provide little education on how to manage stress, a large number of attorneys are at risk for burnout and stress-related mental and physical illness.

In many cases, the feeling of burnout is actually a symptom of an underlying mental health issue such as secondary traumatic stress or vicarious trauma. While secondary traumatic stress is not a diagnosis per se, there is a “recognition that persons repeatedly exposed to those with PTSD, such as family members or professional or volunteer service providers, may develop some symptoms of traumatic stress themselves. Compassion fatigue, unduly absorbing the emotional responses of clients, and burnout, feeling disengaged and resistant to continual efforts at work, are several potential symptoms of secondary traumatic stress.” Brobst, Jennifer A., The Impact of Secondary Traumatic Stress Among Family Attorneys Working with Trauma-Exposed Clients: Implications for Practice and Professional Responsibility (2014). 10 J. Health & Biomedical L. 1 (2014). Available at SSRN: https://ssrn.com/abstract=2466814

The high-level of stress that comes with the job, coupled with attorneys who are likely over-achievers or possess a so-called “Type A” personality is a recipe for disaster. Additionally, with advancements in technology, many attorneys are essentially on-call, all of the time. Even if an attorney’s clients do not have the attorney’s personal cell phone number, the clients are still able to email the attorney at any time of the day or night, regardless if it is during the week or on a weekend. Considering that most attorneys maintain email access on their cell phones, it is exceedingly difficult to shut work off when an attorney leaves the office. While electronic access to an attorney is a blessing to the client, it is often a curse to the attorney whose personal time is regularly interrupted with professional concerns, thus taxing the attorney’s already limited free time. Moreover, the constant contact with clients or the office causes attorneys to chronically stress about cases and deadlines rather than taking care of their minds and bodies. The end result is a vicious cycle that puts many attorneys at risk for burnout and mental or emotional breakdowns. Nevertheless, there may be constructive habits that attorneys can develop that might help mitigate some of the mental and emotional stress of the job.

Maintain a to-do list that includes a plan for each item on the list

Many attorneys learned in law school that keeping a task or to-do list is a critical part of maintaining efficiency and creating optimum productivity. Most attorneys have been in the position where they are wide awake at 3:00 a.m. because they cannot stop thinking about at least one task they need to get done. One common solution is to ensure all tasks are written down so the attorney can rest easy. Maintaining the task list may not be enough, though. In a study conducted at Florida State University and published in the Journal of Personality and Social Psychology, it was determined that when a person creates a plan for how he will accomplish tasks, he is better able to focus on current tasks at hand.

Considering the average North American student reports to have 15 ongoing personal projects, not including normal daily tasks, at any given time, it is easy to see how an active practicing attorney could have multiple times that amount of personal tasks on his to-do list. When a person is focused on attaining one goal, being bombarded with the distractions of other tasks that need to be completed makes it difficult to finish the initial task. The study concluded that when people plan for their goals, they can better manage their multiple pursuits. Once a person creates a detailed plan for a goal, he no longer must spend time thinking about the goal to execute it. In conclusion, a plan reduces the number of thoughts a person might otherwise spend on a separate unrelated and unfinished goal. Masicampo, E. J., & Baumeister, R. F. (2011, June 20). Consider It Done! Plan Making Can Eliminate the Cognitive Effects of Unfulfilled Goals. Journal of Personality and Social Psychology. Advance online publication. Available at http://users.wfu.edu/masicaej/MasicampoBaumeister2011JPSP.pdf.

The important takeaway from this study is that maintaining a task list alone is likely insufficient to help an attorney avoid burnout or breakdown. The attorney should actually create a plan for the tasks on his to-do list. For example, rather than simply writing down that the attorney needs to conduct discovery on a particular case, the attorney or his staff should specify what type of discovery he plans to do, calculate all of the deadlines, ensure everything is calendared, and possibly even start some of the discovery by creating the documents from templates. This way, when the time comes to complete each discovery task, the groundwork has already been completed either by the attorney or his support staff. This will allow the attorney to avoid the distraction that arises when his mind is bombarded with thoughts about everything he needs to do for discovery on that particular case.

Consider removing email notifications from cell phone

Most attorneys have probably experienced something like this before: the attorney just sat down to eat dinner with her family on a Saturday night and her phone is on the table next to her when a notification pops across the screen. It is an email from opposing counsel informing the attorney that her client is refusing to release his children to the opposing party for the court ordered visitation. The attorney’s client is already facing contempt for previously withholding the children from the opposing party and the hearing is on Monday. The attorney has not had dinner with her family in weeks because she had back to back trials. Unfortunately, the attorney feels she has no other option than to excuse herself from the dinner table so she can call her client immediately and tell him he must release the children to their mother for the visitation.

Attorneys are fortunate to live in a time where they can work from anywhere they want, any time they want. However, attorneys are also cursed in that they are rarely able to ever unplug from the office. Whether an attorney is at dinner with her family, attempting an uninterrupted vacation with her significant other, or spending the day with her children at an amusement park, she will likely always have her cell phone and be available by text, call, or email. In this way, some attorneys are never truly out of the office and can never truly be with their families or those closest to them.

There is no doubt that this constant email accessibility is both mentally and emotionally draining for attorneys. One surveying company determined that 60% of emails are opened on mobile phones. See https://www.adestra.com/resources/top-10-email-clients/. This is for initial email opens and does not include subsequent access to the email. Many attorneys will see an email notification pop up on the front screen of their cell phones, open the email, and quickly realize there is nothing that can be done about the email in that moment. The attorney will then mark the email as unread so he can return to it at a later time. Unfortunately, the damage has already been done at that point. The attorney is aware of the impending emergency that needs to be handled and he will continue to think about it until it is resolved. If the email notification had not popped up on the front of the attorney’s cell phone, he would not have opened the email during a time where he could not address the issue, and he would not be experiencing stress over the impending task at hand. Limiting or removing the notifications an attorney receives could help with this by allowing him to only see emails when he actively opens his email application on his phone.

There is, of course, a flip-side to the 24/7 accessibility. Some employers pay their attorneys very well and, therefore, require an attorney to be in constant contact with the office. Some clients demand it. Other attorneys see the constant contact to be a selling point and a demonstration of the attorney’s commitment to the client’s case. In an increasingly competitive legal market, these are valid concerns. The point is that attorneys should recognize that the failure to unplug from the office may very well lead to chronic stress and burn out.

Dedicate time and resources to self-care

It seems that the busier and busier attorneys become, the less and less time they are willing to dedicate to taking care of themselves. Everything on an attorney’s task list is more important than taking care of her mind and body. In reality, attorneys should actually dedicate more time and resources to self-care the busier they become because if they do not feel their best mentally and physically, their productivity and mental health will suffer. In turn, they will become more prone to burnout, or a mental or emotional breakdown.

Scheduling time daily to do something that destresses an attorney is critical to maintaining a positive well-being. The attorney can help ensure he devotes this time to himself by scheduling the time into his schedule as appointments. He can schedule appointments to workout, receive massages, go out to dinner with his significant other, or whatever other activities help him relax.

Additionally, attorneys should take time to understand the physiology of stress, what causes it and what, aside from alcohol and medication, can alleviate it. For lawyers, stress is almost entirely mental and consists mostly of improbable fears and disassociated emotions which, if unchecked, do nothing more than cause a chronic surge of cortisol in the body. Mindfulness training and meditation has been clinically proven to be an effective tool in dealing with the stress of practicing law.

Conclusion

All of these suggestions seem great, but it is much more difficult to actually put them into action. Most attorneys know they would be better off if they left their work at the office and did not personally take on the stress of their clients, but when there are tasks that must be completed and issues that arise, it is challenging not to stress out about them. Nevertheless, this list should serve as a starting point for attorneys who would like to avoid burnout.
If you are ever in need of confidential assistance with alcohol, drug, gambling problems, depression and stress, help is just a phone call away. Call 1-866-828-0022. See https://www.nvbar.org/member-services-3895/wellness/lcl/ or https://www.nvbar.org/member-services-3895/wellness/nlap/ for more information.

Shann D. Winesett is a partner at Pecos Law Group and Las Vegas QDRO. Shann represents clients in all forms of domestic relations and family law matters.

Carli L. Sansone is an associate at vegas east attorneys, a division of Pecos Law Group. Before pursuing the law, Carli worked for several years as a customer service representative in the travel and leisure industry.

Note in regards to CCBA Article #6: The Clark County Bar Association (CCBA) will offer 1.0 AAMH Continuing Legal Education (CLE) Credit (for 2019) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, 717 South 8th Street, Las Vegas, Nevada, 89101, and per the offer described in the print and PDF versions of the June/July 2019 issue of COMMUNIQUÉ (see pages 28-34). CCBA is an Accredited Provider with the NV CLE Board.


*About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

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COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.