The primary job of an injury lawyer is to litigate on behalf of his client. While most personal injury cases settle before a complaint is filed, the higher-value cases are far more likely to be contested. The progression of a litigated personal injury case in Las Vegas is governed by the Nevada Rules of Civil Procedure if it is filed in State Court. If the case is either filed or removed to Federal Court, the Federal Rules of Civil Procedure will govern how the case will proceed. The Nevada Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure. So much so, the Nevada Supreme Court has held that Federal cases construing the Federal Rules of Civil Procedure can be cited in state court cases as persuasive authority in litigation involving the Nevada Rules of Civil Procedure. The steps outlined below are followed in almost every case. It goes without saying that any injury lawyer with a high degree of expertise has mastered the steps outlined below. Without citing to the specific rules, I will outline in general terms each step every injury lawyer litigating in the Nevada State Court system must follow to progress to a jury trial.
Filing of Complaint by the Injury Lawyer
If pre-suit negotiations do not produce an adequate amount to settle the case, it becomes necessary for the case to proceed to the litigation phase. For an action to commence, a complaint must be filed. The complaint is the initial pleading in a lawsuit and is filed on behalf of the plaintiff by his injury lawyer. The complaint essentially includes a concise statement of claims and a demand for judgment. Once the complaint has been filed and a summons issued, the injury lawyer must serve a copy of the summons and complaint on the defendant within 120 days.
Upon being served with the summons and complaint, the defendant has 20 days to file an answer. The answer is the defendant’s response to the complaint. Similar to the complaint, an answer should state in short and plain terms the defenses to each of the claims asserted in the complaint. It is essential that the injury lawyer scrutinize the answer and determine the validity of each of the asserted defenses.
Exemption from Arbitration
Cases that have a probable jury award in excess of $50,000 are exempted from arbitration. Cases that do not have a probable jury award in excess of $50,000 will be litigated in the mandatory arbitration program.
After holding an early case conference and filing a joint case conference report, the injury lawyer and the defense lawyer will begin the process of pre-trial discovery. This process is intensive and time-consuming. The lawyers will primarily use civil discovery tools such as depositions, requests to produce documents, interrogatories, and requests for the admission of facts to flesh out the claims and defenses. The parties will also be required to automatically disclose in writing the names of known individuals likely to have discoverable information (in other words, witnesses the disclosing party expects to use in the case), documents and tangible things that a party expects to use, a computation of damages, and any insurance policies that would apply in the case of a judgement in the case.
Discovery is one of the most hotly contested periods of a litigated case. Most lawyers do their best to ethically adhere to the rules governing civil discovery. However, unfortunately, a sizable minority are willing to hide or even destroy relevant evidence. In a few hyper-competitive civil cases some lawyers have been caught red-handed for flagrantly violating the rules by not turning items over, telling witnesses to lie, or even making misrepresentations to the judge overseeing the case. Unfortunately, it is rare that lawyers who violate discovery rules get caught. That is why it is essential that the injury lawyer handling discovery be well-acquainted with the Rules of Civil Procedure and able to use the rules in a way that ensures that the defense complies with their obligations.
Discovery fights frequently involve unproduced documents. Often one of the parties will be forced to file a motion to compel as well as a motion for sanctions. These fights are typically lengthy and protracted. It is critical that the injury lawyer handling the case insist on obtaining everything that he is entitled to under the rules and that he be willing to aggressively pursue any discovery he believes is being withheld. Sometimes, it takes a number of court hearings and a court order to obtain what should be freely given under the rules. Unfortunately, many insurance companies insist their lawyers play hardball and make it as difficult for the plaintiff as possible. Some lawyers are simply not tenacious enough to endure such tactics, and they give in. However, a capable and zealous injury lawyer will not.
At the end of discovery, the parties will file a number of motions, first, to have claims either proven or dismissed and second, to have certain evidentiary issues decided before trial. The first type of motion is a motion for summary judgement. A motion for summary judgment seeks a ruling by the court in favor of either the plaintiff or the defendant without a trial. When there are no disputed issues of material fact, summary judgment is appropriate. Therefore, if a party can show, after considering all the evidence in the light most favorable to their opponent, that a claim is baseless, the judge will strike the claim or defense in dispute.
The second type of motion is a motion in limine. A motion in limine asks the court to either to limit or exclude certain evidence from being presented at trial. Typically, a number of motions in limine are filed by both sides prior to trial. In almost every case, the plaintiff’s lawyer and the defense lawyer have a number of items which they seek to have excluded for various reasons. The parties are required to attempt to resolve these issues among themselves, but inevitably, a number of items will require a judicial ruling.
This is the stage at which the parties get to present their evidence to a jury of Clark County residents who will consider the issues and decide the case. While the judge makes all the legal rulings in the case, the jury decides the facts. If the jury finds the defendant liable, they then consider the issue of damages. They are free (within the constraints of the jury instructions) to award an amount that, in their view is consistent with the evidence in the case. The overwhelming majority of the time, the jury’s verdict will be upheld. Only when they clearly ignore or misapply the law will the jury’s decision be set aside.
This is a very rough estimation of injury lawyer litigation in Las Vegas. This broad outline does not include many of the procedural steps which take place in a personal injury case in Clark County. It does, however, provide a thumbnail outline of how a litigated case progresses in Southern Nevada.