“Most Important Opinions of 2014″ Includes Ground Breaking Case Argued by Lipson Neilson Attorneys

RAJ_028_e_smRAJ_016_e_smMichigan Lawyers Weekly recently reported on the “Most Important Opinions of 2014″, which includes one involving a major legal victory in the defense of a legal malpractice case by attorneys PHILLIP E. SELTZER and STARR M. KINCAID.

The Michigan Court of Appeals ruled that the trial court correctly dismissed a legal malpractice suit against the attorney and his law firm because the underlying product liability claim plaintiffs’ asserted should have been pursued was statutorily preempted under the federal Medical Device Act (“MDA”). The opinion provides a ground breaking analysis of the MDA preemption defense and explains why the plaintiffs could never prove they would have succeeded on their underlying product liability claim necessary to sustain a viable legal malpractice suit. To view the case, click here.

Nevada formally recognizes litigation malpractice tolling rule

Brady, Vorwerck, Ryder & Caspino v. New Albertson’s Inc., 130 Nev. Adv. Op. 68, 333 P.3d 229 (August 7, 2014), rehearing denied.
By Joseph P. Garin and Kaleb D. Anderson, Lipson, Neilson, Cole, Seltzer & Garin, P.C., Las Vegas, Nevada jgarin@lipsonneilson.com, kanderson@lipsonneilson.com

A recent Nevada Supreme Court Decision clears up the question of the applicability of the Litigation Malpractice Tolling rule following a 1997 amendment to the legal malpractice statute of limitations.

New Albertson’s had a maintenance agreement with Farm Road Retail, which provided that Farm Road Retail would indemnify New Albertson’s for certain incident occurring on the property covered by the agreement. A woman fell on a flight of stairs at the New Albertson’s location to which the agreement applied. She filed suit and New Albertson’s hired Brady Vorwerck to handle the case. New Albertson’s denied all liability in an answer to the complaint. It also filed a cross–claim against Farm Road based on Farm Road’s initial refusal to indemnify New Albertson’s.

Due to perceived malpractice by Brady Vorwerck, New Albertson’s fired Brady Vorwerck, substituted in new counsel, and settled the case against Plaintiff on January 5, 2008. Following that settlement agreement, New Albertson’s cross–claim against Farm Road remained. The cross claim against Farm road was ultimately settled and a pending appeal on the cross claim was dismissed in May 2009.

On January 22, 2010—over two years after New Albertson’s firing of Brady Vorwerck and settlement with the claimants and, but less than two years after New Albertson’s settlement with Farm Road and the dismissal of the appeal—New Albertson’s filed an attorney malpractice suit against Brady Vorwerck.

After answering the complaint, Brady Vorwerck filed a motion for summary judgment, arguing that the malpractice action was untimely filed after the expiration of NRS 11.207’s two–year statute of limitations for attorney malpractice actions. BVRC asserted that, at the latest, NRS 11.207’s two–year limitation period commenced on January 5, 2008, the date of New Albertson’s settlement with the claimants. Accordingly, it contended that New Albertson’s attorney malpractice action was untimely because it was filed over two years after that settlement. The Federal Court ultimately certified the question to the Nevada Supreme Court.

The Nevada Supreme Court addressed the interpretation of NRS 11.207, and stated that in cases involving legal malpractice Nevada has adopted the discovery rule, which starts the statute of limitations when the claimant discovers, or reasonably should have discovered, the material facts for the action, including the damages. The Court also formally adopted the “litigation malpractice tolling” rule, which provides that the damages for a malpractice claim do not accrue until the underlying litigation is complete and, thus, a malpractice claim does not accrue and its statute of limitations does not begin to run during a pending appeal of an adverse ruling from the underlying litigation. The Brady Court further stated that so long as the litigation in which the malpractice occurred continues, the damages on which the attorney malpractice action is based remain uncertain. The Court acknowledged the possibility of adopting the continuing representation tolling rule, but did not address it because it was not asked to in the Federal Court’s Certification Order. (Note: NRS 11.207 does not list “litigation malpractice tolling” as a basis for tolling the legal malpractice statute of limitations. So, the Court’s decision in Brady, contradicts an earlier published decision in Libby v Dist. Ct., 130 Nev. __, 325 P.3d 1276 (2014), which held that a court should not read tolling language into a statute of limitation when the Legislature specifically omitted such language.)

Practice Note. This opinion formally expands the time to file a legal malpractice case in Nevada. It also opens the door to arguments that the continuous representation rule might be applicable under the right set of facts (it has not previously been addressed in a published opinion in Nevada).

Understanding a Child’s Right to Special Education

by Mary T. Schmitt Smith, CELA, Special Needs Alliance

Pioneering efforts by staunch parent advocates led to enactment of the Individuals with Disabilities Education Act (IDEA). This law guarantees students with I/DD a “free and appropriate education in the least restrictive environment possible.” But the language in the law and regulations is often vague, leaving details to be worked out by states and school districts.

With budget cuts and a growing, diverse population of children needing services, tensions can build between families and local schools. Parent advocacy is as important as ever, but there is a learning curve full of acronyms. The special education process is complex and varies significantly among states. This process can be intimidating, so it’s important to know your child’s rights.

Federal law requires that all school districts:

  • identify children entitled to receive special education services;
  • develop and implement an Individualized Education Program (IEP) for each eligible student;
  • pay for necessary services to be delivered elsewhere if they cannot provide them.

Evaluation and IEP

Schools must pay to have an assessment of a child’s physical, social, psychological and behavioral development. Families can also provide any outside evaluations. Together, a determination is made whether the student is entitled to receive special ed services. If so, then an IEP team- including the parents- is developed. The IEP outlines written goals for the school year and how they’ll be measured and achieved. It addresses academics, physical education, and social and life skills. Consideration must be given to delivering services in a mainstream classroom (inclusive), and/or goals better met in a separate, more intensive environment. A student’s eligibility for special education must be assessed every three years. Special education students may receive services from the public school system until graduation or age 22 (26 in Michigan).

Family Rights

Parents are entitled to attend all IEP meetings and to receive a written copy of the IEP, which must be evaluated at least annually. Parents must be notified of all plans to evaluate a student or change an IEP, and they can call an IEP meeting at any time to address concerns about the plan.

If the parents disagree with the IEP, they are entitled to an impartial hearing. Since such proceedings can be daunting, they may find it helpful to work with a professional advocate such as a special needs attorney. If necessary, they can carry their grievance to the federal courts and. if successful, are entitled to reimbursement of attorney fees. Other advocacy resources for parents include chapters of The Arc, state protection and advocacy agencies, parent information and resource centers, and private educational consultants.

Transition Planning

By the time a student is 14, the IEP should address “transition planning,” needed in adulthood. Since the child’s personal goals should shape the curriculum, his/her involvement becomes increasingly important. Considerations include employment options, housing and independent living skills. Nutrition, travel skills, handling of money, appropriate behavior around strangers and much more should also be addressed, with the goal of becoming as independent as possible.

Upon the student’s 18th birthday, he/she is considered a legal adult, so parents need to determine whether a power of attorney or other legal authorization is needed to keep participating in the student’s education and other aspects of their lives such as health care and personal finances.

Community-based vocational initiatives should be investigated as early as possible during the transition process. Many localities coordinate hob fairs where special ed students can explore opportunities. Local chapters of The Arc can be a useful source for available employment supports.

While the special education system can be both confusing and frustrating, its goal is building the foundation for a self-directed, fulfilling life. Knowing how to effectively work with the school district can make all the difference.

SNA (www.specialneedsalliance.org) is partnering with The Arc to provide educational resources, build awareness,and advocate for policies benefiting people with I/DD. The author is the founder of the Theresa Law Center.

Lawyers Have Heart

download (1)Lipson Neilson’s Las Vegas office is leading the Lawyers Have Heart Campaign for the American Heart Association’s Las Vegas Heart & Stroke Walk/Run. In addition to sponsoring this event, they also have a team in place to participate in the festivities.

Our Lawyers Have Heart team has set a fundraising goal of $10,000, to help raise critically needed funds to support life-saving medical research as well as community education and awareness programs. Our team views this walk as the perfect opportunity to support the mission to build healthier lives and communities free of cardiovascular diseases and stroke. 

The walk will take place on Saturday, November 8. It will start at the Fremont Street Experience in Downtown Las Vegas.

Article written by Sandra Glazier published in Michigan Family Bar Journal


Sandra D. Glazier

An article written by Sandra Glazier, titled A Road Map to Attorney Fees in Domestic Relations Actions, was recently published in the May, 2014 edition of the Michigan Family Law Journal.

A Road Map to Attorney Fees in Domestic Relations Actions discusses the premise upon which an attorney fee might be awarded in such actions.  It also focuses on the “reasonableness” requirements related to such awards so that an appropriate record can be made to support an award of fees in domestic relations matters.

You can view the article in it’s entirety here.

Joseph Garin Named One of Nevada’s Top Lawyers

Joseph Garin high resJoseph Garin was named one of the Legal Elite for 2014, a list of Nevada’s top attorneys as chosen by their peers and published yearly by Nevada Business Magazine.

According to the Nevada Bar Association, there are 8,599 active members. The Legal Elite list features nearly 300 attorneys from across Nevada.

Congratulations Joe!

For a complete list of Nevada’s Legal Elite of 2014, click here.


Angela Nakamura Ochoa Successfully Prosecutes Bench Trial in Clark County District Court

On April 21, 2014, Angela Nakamura Ochoaangela-ochoa successfully prosecuted a bench trial in the District Court of Clark County, Nevada.  This lead to judgment for the full amount sought on behalf of her client, an automobile leasing company, located in Cincinnati, Ohio.  The case required application of both Ohio and Nevada law, as there was a choice of law provision in the lease agreements.  Prior to trial, Ms. Ochoa obtained partial summary judgment as to liability against defendants, leaving solely the issue of damages at the time of trial.

Lipson Neilson’s Bill Ebert and Sunny Jeong Win Verdict in Clark County Short Trial Program

On January 31, 2014 Bill Ebert and Sunny Jeong, acting as second chair, represented the assistant buffet manager of a prominent Las Vegas casino in a short trial in Clark County. This is a type of trial that occurs before a four member jury with all attorney presentations completed in one day.

Our client was specifically named as a party defendant, and was alleged to have orchestrated the various intentional misconduct directed toward plaintiff, who sought compensatory and punitive damages. Our client and the casino were sued on multiple theories, including, negligence, false imprisonment, infliction of emotional distress, and defamation. The casino was represented by separate counsel.

At the outset of the case, Mr. Ebert was able to prevent the case from being moved out of the time and cost effective program which results in short trials. This limited the client’s exposure to $50,000. After approximately 11 hours of proceedings and a fairly short deliberation, the jury came back with a unanimous decision in favor of our client and the casino. Our client was very grateful and appreciative of our pre-trial preparation and conduct of the trial.

Karen Smyth Becomes Certified Litigation Management Professional

Karen-SmythKaren Smyth recently completed the requirements for the Litigation Management Institute at Columbia University Law School in New York and was awarded the designation of Certified Litigation Management Professional (C. L. M. P.).

The Litigation Management Institute is the first certification program specifically designed to provide a comprehensive understanding of the business of litigation management. The program is designed to bridge the gap between legal theory and litigation strategy, and the business aspects of litigation management. Sponsored by the Claims & Litigation Management Alliance, admission is limited to certain experienced attorneys and executives in the litigation management field.

“It was an honor to take part in the rigorous litigation management course and be recognized as one of a select group of attorneys with CLMP designation,” said Ms. Smyth “A big thank you to the Litigation Management Institute and the Claims Litigation Management Alliance for bringing industry leaders together to participate in a unique and interactive forum hosted at Columbia Law School. The knowledge gained will certainly benefit our clients.”



Article by Joe Garin and Jessica Green Published in ABA eNewsletter

Recent Nevada Supreme Court Advance Opinion examines the statute of limitations discovery rule applicable to legal malpractice actions.

Moon v. McDonald Carano & Wilson, LLP 129 Nev., Advance Opinion 56 (August 1, 2013)
By Joseph P. Garin, Esq. and Jessica A. Green, Esq.

Allowing varying accrual dates for litigation and transactional malpractice claims undermines the discovery rule.

Sierra International, Inc. (“Sierra”) entered into a $1.4 million promissory note with Appellant Moon (“Moon”). Sierra eventually defaulted on the promissory note and filed a Chapter 7 voluntary petition in Bankruptcy Court in 2001. Moon hired McDonald Carano Wilson, LLP (“MCW”) to represent their interests in Sierra’s bankruptcy action. Sierra’s bankruptcy action concluded in 2008.

In the interim, on November 3, 2006, Moon filed an action against MCW alleging (1) professional negligence, (2) breach of contract, and (3) vicarious liability arising out of its representation of Moon in Sierra’s bankruptcy action. (“First Complaint”) In 2008, the District Court dismissed Moon’s lawsuit without prejudice because Moon failed to comply with discovery requirements. Moon appealed the dismissal, and the Nevada Supreme Court affirmed.

Nearly four years later, on October 20, 2010, Moon filed a second action against MCW reasserting the same claims contained in the First Complaint. (“Second Complaint”) In March 2011, MCW filed a motion to dismiss the Second Complaint arguing the case was time–barred under Nevada’s discovery rule: NRS 11.207(1). (“Statutory Discovery Rule”)

NRS 11.207(1) provides an action for legal malpractice must be commenced within four years after the plaintiff sustains damage, or within two years after the plaintiff discovers, or through reasonable diligence should have discovered, the material facts constituting the cause of action; whichever occurs earlier.

MCW argued that the Statutory Discovery Rule governs Moon’s professional malpractice claim, and based on… click here for the full article as published in the August 2013 issue of the LPL eAdvisory, an eNewsletter from the American Bar Association’s Standing Committee on Lawyers’ Professional Liability.