Community Service in Las Vegas Justice Court: HELP is on the way

By Las Vegas Justice Court Judge Diana Sullivan

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (June/July 2013, Vol. 34, No. 6 & 7). 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.

In February 2013, the Las Vegas Justice Court (LVJC) unanimously decided to require all LVJC offenders to coordinate completion of their community service through HELP of Southern Nevada. Not only are some offenders sentenced to perform mandatory community service, the judge can also allow an offender to perform community service in lieu of all or a portion of a fine. Pursuant to NRS 176.087, community service must be performed for and under the supervising authority of a county, city, state agency, or charitable organization that “renders service to the community or its residents.” The statute implies that the agency or organization should be properly insured. HELP is a non-profit agency whose mission is to assist family and individuals throughout southern Nevada to overcome barriers and attain self-sufficiency through direct services, training, and referral to community services. One of HELP’s many programs is its Community Alternative Sentencing Program. Through this article, the LVJC hopes to notify the bar of this new community service policy and outline the reasons supporting its decision.

First and foremost, everyone can agree that there should be consistency in what type of work the court will accept as “community service.” Problems arise when, for example, Judge A accepts volunteer hours for coaching a child’s local baseball team as “community service,” but Judge B rejects that same type of work as community service. Other times, an offender reports hours that he or she believes is community service, but the hours are rejected by the presiding judge. Other common examples include recording hours for attending NA/AA meetings, attending church services or bible study, etc.

There are also instances in which an unwitting offender actually volunteers at a for-profit corporation, believing the work will satisfy his or her community service requirement. In these cases, not only did the for-profit corporation take sheer advantage of “free work” by the offender, but usually the court rejects the work as “community service” and the offender must start over.

Similarly, with the ubiquity of the Internet, offenders seem to continually find Web sites representing that, for a fee, they can satisfy their community service requirement online and receive a completion letter. In these instances, an offender pays a fee to the Web site, and then at best may be given some sort of online study program that does not “render service to the community.” When the offender reports back to the court with the letter of completion of online community service, the work is usually rejected by the judge. In requiring the offender to be placed at an organization through HELP of Southern Nevada, there will be no question that the work the offender completes qualifies as “community service” and that the assigned organization is an approved organization.
The LVJC also continues to experience problems with offenders outright falsifying their community service. Offenders have been known to use or modify company logos and letterhead of legitimate organizations, create their own artwork of an organization, or simply handwrite a letter on a blank piece of paper and provide it to the court. Some offenders have admitted to purchasing their false community service letters from nefarious entrepreneurs, with the price varying on the number of completion hours requested. If an offender is caught providing a false community service letter to the court, the court can assess punishment by way of contempt and/or imposing suspended jail time. Moreover, the act of providing a false community service letter to the court may also be considered a felony offense, which could result in new criminal charges for the offender.

Because the LVJC is by far the busiest court in the state and has no internal court compliance department like other justice courts have, it is logistically difficult, if not impossible, for the court to verify all community service. With HELP acting as the court’s exclusive community service agency, all work performed will be completed at an organization approved by HELP, monitored by HELP, and verified by HELP. Once the offender’s work is completed and verified, HELP generates a status report to the presiding judge.

HELP has dozens of organizations with which offenders can be placed. When requested by an offender, HELP can expand its list of organizations by adding an organization, provided the tax-exempt status and insurance qualifications are satisfied. HELP can place offenders according to their work schedule, the location of their residence, or any disability or language barrier they may have. HELP also works with similar agencies in other states, so an offender can register through HELP and be placed with an organization in another city or state, if needed.

For an offender to enroll in HELP’s alternative sentencing program, he or she must have a completed referral form from LVJC. HELP then takes the offender through the registration process and program guidelines. The registration fee is $30, but for good cause shown the presiding judge, and only the judge, can waive this fee.

Most importantly, we strongly believe that by utilizing HELP as LVJC’s community service enrollment agency, offenders will be introduced to other services that increase rehabilitation and reduce recidivism. HELP assists individuals and families by providing direct services including homeless services, job training and placement programs, and social and family services.

The LVJC asks the criminal defense bar and the people it serves to embrace this change and exercise patience during this adjustment phase. HELP is ready, willing, and able to assist us with this new process and has hired additional employees and added registration workstations to accommodate the increase in the volume of clients. If the resources become available, one of our future goals is to have a HELP representative present in the Regional Justice Center during morning hours to register clients immediately after sentencing. If you have a client with a unique situation, address it with the court at the time of sentencing. While this is a court-wide policy, the presiding judge has the ultimate authority over the sentence and the community service performed.

If members of the bar have general questions about HELP of Southern Nevada or its Community Alternative Sentencing Program, please contact Abby Quinn at HELP of Southern Nevada at (702) 369-4357 ext. 1222, or Lynda Foresta at Las Vegas Justice Court at (702) 671-2890. You can also visit HELP’s website at http://www.helpsonv.org.

Judge Diana Sullivan wrote this article on behalf of the judges of the Las Vegas Justice Court.


Small Claims: Practices Vary in Southern Nevada Justice Courts

 

By Kris Bergstrom

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (June/July 2013, Vol. 34, No. 6 & 7). 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.

The recent economic downturn has seen a number of lawyers exploring unfamiliar territory—small claims actions. While most small claims cases are brought by pro se litigants, the number of attorneys appearing in small claims cases has grown in the last few years. Attorneys appearing in small claims cases should be aware that not only does small claims court have its own set of rules, but the rules vary amongst the justice courts. Practitioners in small claims court (even if you’re just there as a favor to your uncle) should be aware of the differences between small claims rules and regular justice court rules, as well as the variations between justice courts.

Jurisdiction
Unlike other justice court cases, small claims cases must be filed where the defendant works, lives, or does business. Additionally, small claims complaints cannot ask for more than $7,500 in damages.

Demand letters
In Las Vegas, North Las Vegas, and Henderson justice courts, small claims plaintiffs are required to send a demand letter via certified mail with a return receipt requested. All three courts require that proof of the letter being sent be included with the initial complaint. In North Las Vegas and Las Vegas, the plaintiff must give the defendant ten days to respond to the demand letter before filing a complaint. In Henderson, the deadline is fifteen days.

Filing the complaint
Las Vegas, North Las Vegas, and Henderson justice courts all have forms available for filing a small claims action. In North Las Vegas and Henderson justice courts, small claims plaintiffs must file complaints in person and will receive a hearing date at the time the complaint is filed. The plaintiff must serve the defendant at least ten days before the hearing. However, the defendant is not required to file an answer. In Las Vegas justice court, plaintiffs are required to file the complaint electronically. If the filing is accepted, the plaintiff does not receive a hearing date. Instead, the plaintiff must serve the defendant and the defendant has twenty days to file an answer. If the defendant does not file an answer, the plaintiff can move for a default judgment. If the defendant does file an answer, the case is scheduled for mandatory mediation. Small claims cases in Las Vegas do not receive a hearing date until after the parties complete mediation.

Mandatory mediation
North Las Vegas, Henderson, and Las Vegas justice courts all require small claims litigants to engage in mandatory mediation conducted by the Neighborhood Justice Center. In North Las Vegas and Henderson, the mediation process is fairly straightforward because litigants meet immediately before the scheduled hearing. If the parties cannot reach a resolution, they proceed with the scheduled hearing that same afternoon. In Las Vegas justice court, mediation is scheduled as a stand-alone meeting ten to twenty days after the small claims defendant files his answer. If either party misses the mediation appointment, the opposing party may move for a default judgment.

Hearings
There are no pre-hearing discovery procedures in small claims cases in any of the justice courts. Practitioners may consider issuing a subpoena duces tecum to obtain documents. Practitioners should not expect the opposing party to bring extra copies of the documents they intend to introduce at the hearing.

Practically speaking, however, filing in small claims court means flying blind in the hearing. Moreover, unlike regular justice court actions or district court, a corporation, partnership, business trust, estate, trust, association, or any other nongovernmental legal or commercial entity may be represented by its director, officer, or employee in small claims cases. This means that attorneys in small claims court are almost always appearing opposite pro se parties who know neither the law nor the court rules.

Additionally, hearings in small claims court are far less formal and more judge-directed than regular justice court or district court trials. A judge may control the questioning of witnesses herself or allow for frequent back and forth statements between the two parties. This can happen even when a lawyer is representing one of the parties. Any attorney appearing in a small claims action should be prepared to be flexible and adjust to the flow of the hearing as it goes along.

Costs and fees
The prevailing party in a small claims case may obtain reimbursement for his costs by submitting a record of costs at the hearing. The prevailing party does not need to submit a post-hearing memorandum of costs. A prevailing party may not obtain attorney’s fees from the non-prevailing party in a small claims case. However, attorney’s fees are allowed for the prevailing party in an appeal to district court, but the fees are limited to $15.00.

Appeals
In Las Vegas, small claims cases are usually heard by a hearing master. A litigant who wants to appeal does not appeal directly to district court. Rather, the litigant has five days to file a formal objection, which entitles the parties to a de novo hearing before a justice of the peace. In Henderson and North Las Vegas, appeals are usually heard before a justice of the peace. Parties in Henderson and North Las Vegas, as well as Las Vegas litigants who have been through the formal objection process, can appeal to district court by filing a notice of appeal five days after the entry of judgment.

Attorneys who plan on appearing in small claims actions would do well to be prepared by reviewing the laws and court rules regarding small claims actions, including NRS Chapter 73 and Justice Court Rules of Civil Procedure 72-76 and 88-100.

Kris Bergstrom is a Senior Attorney with Nevada Legal Services. She supervises the Small Claims class offered by the UNLV Boyd School of Law every Friday at Nevada Legal Services at 1:30 p.m.


Tips for Practicing in Las Vegas Justice Court

ByEunice Morgan Beattie

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (June/July 2013, Vol. 34, No. 6 & 7). 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.

 

Justice Court attorneys still utilizing their old rulebooks, beware! There has been a recent emphasis on Justice Court taking swift action against parties who fail to comply with court orders or who fail to follow the Justice Court Rules of Las Vegas (JCRLV).

There are key rules and corresponding procedures that attorneys can follow to help improve the practice of law in front of Las Vegas Justice Court. However, the first step that could improve everyone’s practice is to simply brush up on the most recently updated JCRLV, and the most current version of the Justice Court Rules of Civil Procedure (JCRCP). The trial preparation sections of both are especially noteworthy.

By way of example, the requirements for trial memoranda, pursuant to JCRLV 23, have undergone significant changes since August 2010. Although JCRLV 23 has been in effect since August 2010, attorneys are still falling into the trap of “adhering” to the old requirements of a rule that has been substantively changed. In response, at least one Justice Court judge has refused to allow counsel to present witnesses or exhibits at trial, when counsel failed to abide by the amended requirements of JCRLV 23. Thus, to avoid pitfalls, it is essential that attorneys be familiar with these changes.

JCRLV 23(a)
Previously, JCRLV 23(a) was entitled “trial statements” and provided that any party had the option of filing a trial statement if it so chose. The amendment to JCRLV 23(a), entitled “trial memoranda,” has been missed by attorneys. The amendment made pretrial memoranda mandatory when parties are represented by counsel, rather than merely optional.    Additionally, pursuant to the rule, counsel must meet to: (1) exchange exhibits and lists of witnesses and, (2) arrive at stipulations and agreements, all for the purpose of simplifying the issues to be tried. Thereafter, counsel must prepare a joint pretrial memorandum, which shall be served and filed not less than 15 days before trial. In the event a joint pretrial memorandum cannot be prepared, JCRLV 23(a) states that each party must prepare and file its own pretrial memorandum. A courtesy copy of each pretrial memorandum must be delivered to the court at the time of filing.

JCRLV 23(b)
The previous version of JCRLV 23(b) has since been incorporated in JCRLV 23(e). JCRLV 23(b) now states that when not all parties are represented by counsel, the filing of a pretrial memorandum is optional unless the Justice Court orders otherwise.

JCRLV 23(c)
JCRLV 23(c) governs the requirements for a pretrial memorandum. Previously, when counsel chose to file a trial statement, that statement had to include nine subsections, basically containing: facts (disputed and undisputed); issues of law; summaries of schedules (if applicable); identification of witnesses; other information for the assistance of the court; and certification by counsel that discovery was completed and that a settlement conference occurred. Additionally, motions in limine had to be in writing and attached to the trial statement.
The amendment to JCRLV 23(c), significantly expands the requirements for the now mandatory pretrial memorandum. The pretrial memorandum must be as concise as possible and must include, in numerical order, the following items:

 

  1. If applicable, the date that the conference between the parties under subsection (a) was held, and the persons present.
  2. A concise statement of the claimed facts supporting the party’s claims or defenses. Such facts shall be organized by listing each essential element of the claim or defense and separately stating the facts in support of each such element. Admitted or undisputed facts must also be stated separately.
  3. A list of all claims for relief designated by reference to each claim or paragraph of a pleading and a description of the claimant’s theory of recovery with each category of damage requested.
  4. A list of affirmative defenses.
  5. A list of all claims or defenses to be abandoned.
  6. A list of all exhibits, including exhibits which may be used for impeachment, and a specification of any objections each party may have to the admissibility of the exhibits of an opposing party. If no objection is stated, it will be presumed that counsel has no objection to the introduction into evidence of these exhibits.
  7. Any agreements as to the limitation or exclusion of evidence.
  8. A list of the witnesses (including experts), and the address of each witness whom each party intends to call. Failure to list a witness, including impeachment witnesses, may result in preclusion of that witness.
  9. A brief statement of each principal issue of law that may be contested at the time of trial. This statement shall include, with respect to each principal issue of law, the position of each party.
  10. An estimate of the time required for trial.
  11. In nonjury cases, a list of summaries of schedules referring to attached, itemized exhibits concerning any subject matter that involves accounting, computation, chronology, or similar data reasonably calling for orderly itemization, e.g., wages, income, expenses, inventories, business operations, tax computations, disability periods, property losses, itemizations of claimed losses or injuries, and the data and reasons upon which an expert bases his opinion (not the opinion itself), which clearly reflect the claims, defenses, or evidence of the party, together with references to the records or other sources upon which such summaries or schedules are based.
  12. Certification by counsel that discovery has been completed, unless late discovery has been agreed to by all parties or allowed by order of the court.
  13. Certification by counsel that, prior to the filing of the pretrial memorandum, they have personally met and conferred in good faith to resolve the case by settlement.
  14. All motions in limine to exclude or admit evidence must be in writing and filed no later than 30 days prior to trial. The court may refuse to consider any oral motion in limine and any motion in limine that is not timely filed. Any other matter that counsel or a party desires to bring to the attention of the court prior to trial.

JCRLV 23(c). As can be seen, there has been a significant modification regarding motions in limine, as the rule now requires that they be filed no later than 30 days before trial.

JCRLV 23(d)-(f)

The previous version of JCRLV 23 did not contain subsections (d)-(f). Thus, it is important to note the additions to the rule:

JCRLV 23(d) states that the above requirements are in addition to the requirements mandated of counsel by JCRCP 16.1.

JCRLV 23(e) essentially replaces the previous JCRLV 23(b) and states that in cases to be tried before a jury, the memoranda set forth in JCRCP 39A shall be used in lieu of a pretrial memorandum.

JCRLV 23(f) permits, unless otherwise ordered by the court, an attorney to submit a a separate trial memorandum of points and authorities to the Justice Court before trial commences, without service to the opposing party. However, the original memorandum must be filed, and a copy served upon opposing parties, at or before the close of trial.

Adherence to key rules, such as JCRLV 23 and its corresponding procedures, is essential to providing effective representation. Keeping updated on any changes has become more important than ever as a client’s case can (and will) be crippled at trial if the rules are not followed.

Eunice Morgan Beattie is an associate at the law firm of Gordon Silver, practicing in the firm’s government investigations and business crimes department in areas of complex criminal litigation, corporate litigation, and civil litigation. She can be reached at (702) 796-5555 or  emorgan@gordonsilver.com.


Transferring Civil Cases Between The Justice Court and The District Court

By Michael C. Mills

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (June/July 2013, Vol. 34, No. 6 & 7). 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.

The jurisdictions of the Justice Court and the District Court are mutually exclusive. Article 6, section 6 of the Nevada Constitution says that

[t]he District Courts in the several Judicial Districts of this State have original jurisdiction in all cases excluded by law from the original jurisdiction of justices’ courts.”

In other words, where jurisdiction rests in the Justice Court, there is no jurisdiction in the District Court and vice versa.

If a case gets filed in the wrong court, the parties may be tempted to simply ignore the jurisdictional defects. But that may prove problematic. Remember that challenges to jurisdiction can be raised at any time and can even be raised for the first time on appeal. Meinhold v. Clark County School District, 89 Nev. 56, 59, 506 P.2d 420, 422 (1973). Imagine the embarrassment and the possible prejudice to the client’s case if, after a trial, the whole matter was thrown because of a jurisdictional defect.

Take the case of Royal Ins. v. Eagle Valley Constr., Inc., 110 Nev. 119, 867 P.2d 1146 (1994) as an example. The Plaintiff filed suit in the District Court. The court dismissed the case sua sponte because the complaint alleged damages less than the jurisdictional threshold of the District Court. The Nevada Supreme Court upheld the dismissal. The Court also ruled that attorney’s fees and costs could not be added to make up the shortfall in the jurisdictional amount in dispute.

In the Justice Court, the dispute must not exceed $10,000, whether the action arises from contract, bodily injury, property damage or any number of other situations. NRS 4.370(1). But what is the attorney to do if a case is in the wrong court? Should the plaintiff dismiss and refile? What is the solution? Luckily, whether heading up to the District Court or down to the Justice Court, a statute will allow the transfer of the case from one court to the other without risking a dismissal.

If the case is in the District Court, and it should be in Justice Court, rely on NRS 3.221 which states:

Transfer of original jurisdiction to justice court. If an action is filed in the district court and a district judge determines that the action is properly within the jurisdiction of the justice court pursuant to NRS 4.370, the district judge may transfer original jurisdiction of the action to the justice court.

NRS 3.221.

What’s more, a transfer of the case from the District Court to the Justice Court does not relegate it to the judicial netherworld. Keep in mind the many advantages that are available in Justice Court. Jury trials are available in Justice Court. NRS 67.010. In addition, the jury trial is limited to one-half of a day. NRS 67.060; JCRCP 39A and 47. Plus, my favorite benefit available in Justice Court is the award of attorney’s fees as costs to the prevailing party at trial, NRS 69.030, as well as on appeal to the District Court. NRS 69.050.

On the other hand, if the case is in the Justice Court but should be in the District Court, then NRS 66.070 is the solution. It reads:

Transfer of cases to district court.

The parties to an action in a justice court cannot give evidence upon any question which is excluded from the jurisdiction of the justice court. If it appears from the plaintiff’s own showing on the trial, or from the answer of the defendant, verified by oath, that the determination of the action will necessarily involve such a question, the justice must suspend all further proceedings in the action and certify the pleadings, and, if any of the pleadings are oral, a transcript of them from the docket of the justice, to the clerk of the district court of the county. From the time of filing the pleadings or transcript with the clerk of the district court, the district court has the same jurisdiction over the action as if it had been commenced in the district court.

NRS 66.070(1).

Obviously, these transfers don’t happen often. But when the need arises, these tools will move a case from the District Court to the Justice Court or vice versa.

Mike Mills cut his chops in Justice Court handling hundreds of insurance subrogation cases. Many of those cases had insurance coverage questions. Mike liked the insurance coverage aspect of these cases so much that he now focuses his practice on insurance coverage, bad faith and unfair claims practices. For answers to additional questions about coverage, Nevada’s Unfair Claims Settlement Practices Act and insurance bad faith, please call Mike at (702) 498-6061 or browse to his Coverage and Bad Faith Law Blog at www.NevadaCoverageLaw.com.