Tag: Las Vegas accident lawyers

Discovery in Personal Injury Lawsuits

Las Vegas injury trial attorneys

We’ve seen them. Trial in movies or tv shows where one of the parties produces a surprise witness or evidence. Such surprises make for an exciting movie or tv show but is not realistic. In real life trials, surprises are disfavored. Any new evidence not previously disclosed to other parties will likely be excluded. In litigation, discovery is the process during which the parties disclose the evidence they intend to use at trial.

While movies and tv shows usually focus on trials, the bulk of personal injury lawsuits is spent in discovery. In Nevada, discovery begins soon after a defendant files an answer. It begins with the mandatory exchange of witnesses and documents. Rule 16.1(a) of the Nevada Rules of Civil Procedure list the items that must be disclosed at this early stage.

Rule 16.1. Mandatory Pretrial Discovery Requirements

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General.  Except as exempted by Rule 16.1(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have information discoverable under Rule 26(b), including for impeachment or rebuttal, identifying the subjects of the information;

(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, including for impeachment or rebuttal, and, unless privileged or protected from disclosure, any record, report, or witness statement, in any form, concerning the incident that gives rise to the lawsuit;

(iii) when personal injury is in issue, the identity of each relevant medical provider so that the opposing party may prepare an appropriate medical authorization for signature to obtain medical records from each provider;

(iv) a computation of each category of damages claimed by the disclosing party — who must make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(v) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment and any disclaimer or limitation of coverage or reservation of rights under any such insurance agreement.

The list of items that must be disclosed include:

  • The names and contact information of people who likely have relevant information
  • A copy of documents relevant to the case
  • In Las Vegas personal injury cases, the names of health care providers that treated the plaintiff for injuries or pre-existing conditions relevant to the case
  • If there is an insurance policy that would cover all or part of the damages claimed, then the insurance policy. In a car accident, this means the defendant must disclose their car insurance policy.
  • An itemization of the damages claimed by the party. In personal injury cases, this means the medical bills a plaintiff has incurred or will incur in the future, lost wages or income, and any other out-of-pocket expenses

A party in a lawsuit has a continuing duty to disclose the above items as the litigation continues. A party who fails to disclose these items can face a motion to compel from the other side. In a motion to compel, the other party asks the court to force the non-responding party to disclose the required items or information. If the non-responding party fails to do so, the court can sanction the non-responding party. Sanctions could be a monetary fine; the non-responding party could be required to pay the other party’s attorney’s fees and costs. The court could preclude the non-responding party from relying on any undisclosed information, witness, or evidence. The court could also dismiss part of all of the non-responding party’s claims or defenses. The worst sanction for a plaintiff would be dismissal of the entire case.

After the initial disclosure of witnesses and documents, the parties have several tools under the Nevada Rules of Civil Procedure to obtain relevant information and items. These include

  • Interrogatories (NRCP Rule 33)
  • Requests for Production of Documents (NRCP Rule 34)
  • Requests for Admissions (NRCP Rule 36)
  • Depositions (NRCP Rule 30)
  • Site Inspections (NRCP Rule 34)
  • Independent Medical Examination (NRCP Rule 35)
  • Subpoenas (NRCP Rule 45)

Of the above, only depositions and subpoenas can be used to obtain documents and information from people who are not parties to the lawsuit.

The above mechanisms are the only ones mentioned in the Nevada Rules of Civil Procedure. However, there are informal means to conduct discovery. Parties can still hire investigators or do their own online research. In personal injury lawsuits, insurance companies may hire an investigator to conduct a surveillance of an accident victim. With social media, insurance companies sometimes do not need to do surveillance.

Regardless of the means a party to a lawsuit obtains relevant documents and other evidence, the party must generally disclose those materials before trial or risk not being able to use them at trial.

If you or a loved one are facing a lawsuit for injuries you sustained as a result of a car accident in Las Vegas, the experienced trial attorneys at D.R. Patti & Associates can assist you. With a combined total of 50+ years of experience, the Las Vegas car accident attorneys of D.R. Patti & Associates can advise and guide you through the process and obtain the best results possible.

What is Negligence in a Personal Injury Case? (Part I)

Las Vegas Personal Injury And Car Accident Attorneys

Many lay people may use the term “negligence” without fully understanding how the law defines it and how it is applied. Generally, “negligence” refers to the failure to exercise the appropriate level of care. So when someone says “so and so was negligent,” they are really saying that person did not act in a way that others generally act. While a violation of the law can be negligence, negligence does not require there to be a violation of the law.

American common law recognizes that a person injured by the negligence of others is entitled to compensation. The underlying policy behind the concept of negligence is that certain conduct involves a risk of harm to others that is greater than what society is willing to accept. Because of that risk of harm, the law makes the negligent person responsible for the resulting harms.

To be legally recognized as a negligence claim, the following elements must be proved:

  1. Duty: the defendant owed the injured person a duty recognized by the law
  2. Breach: the defendant breached that duty
  3. Damages: the defendant’s breach of that duty legally or proximately caused injuries
  4. Causation: the injury caused by defendant’s breach was foreseeable

Each of the foregoing concepts continue to be litigated, depending on the circumstances or as society changes. This is particularly with the concept of duty, since duty, as defined, is one that the law recognizes. Some states may recognize a particular duty, but not in other states. For example, Nevada does not recognize “dram shop” laws. Dram shop laws are laws that make a business that sells alcohol to a person who is obviously drunk liable if that person injures another. For example, if after leaving a bar, a drunk driver hits and kills someone, the victim’s family may be able to hold the bar responsible. While a majority of other states have such law, Nevada generally does not. See Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969).

Negligence can give rise to the following common types of personal injury cases:

In car accident cases, negligence is often expressed as a driver’s failure to exercise ordinary care. Usually, duty and breach of duty are not an issue in Las Vegas car accident cases. It is quite well settled law that a driver owes a legally-recognized duty to other drivers and pedestrians to exercise care when driving. What is kind of care is often answered by looking at the traffic laws and rules of the road. Nevada’s traffic laws and rules of the road can be found in Chapters 484, 484A, 484B, and 484C of the Nevada Revised Statutes.

What could be issues in Las Vegas car accident cases are damages and causation, particularly if there is not a lot of visible property damage. We’ve already discussed in another blog how insurance companies use low property damage to argue that someone could not be injured. This tactic of insurance companies is so prevalent that there is a name for it – “Minor Impact Soft Tissue” or MIST cases. Don’t be fooled by these arguments. Of course, the insurance companies’ goal is to pay as little as possible, and they do so by equating visible property damage to a person. But a person is not a car, is not built with metal, and every person is unique. Read more on how experienced Las Vegas car accident attorneys deal with the insurance companies MIST arguments.

If you or a loved one have been injured by the negligence of another, contact the Las Vegas personal injury attorneys of D.R. Patti & Associates. With a combined total of 50+ years of experience, our award-winning attorneys have handled many negligence cases arising from a variety of circumstances. We’ve handled the typical and less typical Las Vegas car accidents to commercial trucking accidents and have obtained millions of dollars on behalf of our clients. Call us today.

Trust Your Attorney: Confidentiality of Client Communications

Clients may feel scared about telling their attorneys about things that they may not be proud of.  Or a client may feel that a small bit of information is unimportant to the attorney. However, successful representation of clients, even in car accident cases, may depend on the client’s attorney knowing that information. Like good attorneys, the experienced Las Vegas personal injury attorneys at D.R. Patti & Associates know how to encourage clients to disclose information, regardless of how embarrassing. We let our clients know that, except in exceptional circumstances, the law protects communications between clients and attorneys.

The Laws And Rules Protecting Client Confidentiality

The ethical rules governing attorneys obliges attorneys to maintain the confidentiality of communications with clients, and these rules provide for a very few exceptions. Rule 1.6 of the Nevada Rules of Professional Conduct states

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraphs (b) and (d).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) To prevent reasonably certain death or substantial bodily harm;

(2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer’s services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action;

(3) To prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action;

(4) To secure legal advice about the lawyer’s compliance with these Rules;

(5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(6) To comply with other law or a court order.

(7) To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

(d) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent a criminal act that the lawyer believes is likely to result in reasonably certain death or substantial bodily harm.

A lawyer’s duty to keep their client’s information confidential continues even after a client’s case is done. Rule 1.9 of the Nevada Rules of Professional Conduct states

Rule 1.9. Duties to Former Clients.

. . .

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

  1. Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
  2. Reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Besides the ethical rules above, the legal doctrine of “attorney client privilege” serves to protect the confidentiality of client communications from compelled disclosure. This privilege is one of the oldest legal doctrines. In Nevada, this privilege is codified in a statute. Section 49.035 et seq. of the Nevada Revised Statutes sets forth when the privilege applies and the exceptions. The general rule is stated in NRS § 49.095 as follows:

NRS § 49.095. General rule of privilege. A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:

  1.       Between the client or the client’s representative and the client’s lawyer or the representative of the client’s lawyer.
  2.       Between the client’s lawyer and the lawyer’s representative.
  3.       Made for the purpose of facilitating the rendition of professional legal services to the client, by the client or the client’s lawyer to a lawyer representing another in a matter of common interest.

Basically, information a client discloses to his attorney relating to his case is considered confidential, and the attorney cannot disclose it without the client’s consent. Our legal system recognizes that for attorneys to effectively represent their clients, attorneys must have all the relevant information. Further, clients must be encouraged to make “full and frank” disclosures. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

If you need a car accident attorney in Las Vegas you can trust, call the award-winning and experienced Las Vegas personal injury attorneys at D.R. Patti & Associates.

Timeline of a Las Vegas Personal Injury Lawsuit

Timeline of a Las Vegas Personal Injury Lawsuit

A lawsuit begins with the filing of a complaint. Generally, if the accident occurred in Las Vegas, the complaint would be filed in state court. In some cases where damages exceed $75,000.00 and the parties reside in different states from each other, those cases can be filed with the federal court. This timeline will focus on cases filed in state court. The person on whose behalf the lawsuit is filed is called the plaintiff. The person being sued is called the defendant.

The amount of damages an injured person is seeking determines which state court the lawsuit is filed in. If the damages do not exceed $15,000.00, the case is filed with the Las Vegas Justice Court. If the damages exceed $15,000.00, the case is filed with the Eighth Judicial District Court.

Las Vegas Personal Injury Cases In The Eighth Judicial District Court

In personal injury cases (except Medical Malpractice), a lawsuit must be filed no later than the second anniversary of the accident. This is called the statute of limitations. This means that if the car accident or slip and fall that caused your injuries occurred on July 1, 2020, the lawsuit must be filed by July 1, 2022. If the lawsuit is not filed by the second anniversary, the lawsuit will be dismissed. Nevada’s statute of limitations applicable in personal injury cases can be found in NRS § 11.190.
Once the complaint is filed, the plaintiff has 120 days to serve the defendant with the complaint and a summons. This step is called service of process. A defendant must be served before the court can have jurisdiction over the defendant. The laws governing service of process can be found in Rules 4 and 4.2 of the Nevada Rules of Civil Procedure (“NRCP”). Failure to serve the defendant without good cause before the 120 expires can result in dismissal of the lawsuit. If additional time is needed to serve the defendant, a plaintiff should seek an extension with the court before the 120 days expires.
The best and primary way to serve a defendant is through personal service, which means that a defendant is personally handed the complaint and summons. Any person over the age of 18 years old and not a party to the lawsuit can serve the defendant. See NRCP Rule 4(c)(3). If the defendant is a legal entity, such as a corporation or a limited liability company, the company’s registered agent for service of process can be served. If the defendant is a Nevada corporation or limited liability company, you can find out who the registered agent is through the Nevada Secretary of State’s website.

If the defendant cannot be found, Rules 4 and 4.4 of the NRCP provides for alternatives to personal service. To be able to utilize those alternatives, the plaintiff or her attorneys must show that they conducted due diligence in locating defendant and attempting to serve them. Alternatives to personal service including publishing the complaint and summons.

Once the defendant is served, they have 20 days to file an answer. Once the defendant files an answer, the plaintiff can request exemption from the mandatory Court Annexed Arbitration Program or proceed through the program.

The Mandatory Court Annexed Arbitration Program

In the Eighth Judicial District Court, all cases are automatically enrolled in the mandatory Court Annexed Arbitration Program. Thus, unless exempted, all cases must first be arbitrated.  The purpose of this Arbitration Program “is to provide a simplified procedure for obtaining a prompt and equitable resolution of cervical civil matters.” Absent good cause, arbitration hearings for cases in the program must be held within 6 months after appointment of an arbitrator. The laws governing the Arbitration Program can be found in the Rules Governing Alternative Dispute Resolution.

A case is exempted from the program if the case involves a claim in excess of $50,000.00. There are other reasons a case can be exempted from the program, such as public policy. A request for exemption must be submitted to the Arbitration Commissioner within 20 days after the defendant files an answer.

If a Las Vegas personal injury case is worth less than $50,000.00, it will usually be first arbitrated. In an arbitration, the case is decided by a qualified neutral third-party. Sometime after an answer is filed, the parties in such a case will receive a list of five potential arbitrators, usually local attorneys. Each party can de-select two of the potential arbitrators, and the Arbitration Commissioner will select the arbitrator from the remaining names.

The decision of the arbitrator is non-binding, unless the parties agree otherwise. This means that once the arbitrator issues her decision, either party to the lawsuit can elect to proceed to a trial by filing a “Request for Trial De Novo” within 30 days after the arbitrator issues her decision. If such a Request is filed, the lawsuit will proceed through the Short Trial program unless a party demands removal from the program within 10 days after the Request. If a lawsuit is removed from the Short Trial program, the lawsuit proceeds on the regular course of litigation.

As with the Court Annexed Arbitration Program, the Short Trial program is intended to provide a faster resolution of a lawsuit. Unlike a regular trial, a trial in the Short Trial program must occur within 120 days after the presiding judge is appointed. In a lawsuit that is not in the Short Trial program, it can take a year or more for a case goes to trial. There are other difference. Unlike a regular trial, a case in the Short Trial program only has 1 day to try the case in front of a jury of four people. Also unlike a regular trial, a pro tempore judge, rather than a district court judge, can preside over a Short Trial. The Short Trial rules can be found in the Nevada Short Trial Rules.

Scheduling Conference & Discovery

After a Las Vegas personal injury lawsuit is exempted from arbitration or an arbitrator is appointed, a scheduling conference will be held with the parties or their attorneys. If the case is in the Arbitration Program, the scheduling conference will be set by the arbitrator. If the case is not in the Arbitration Program, the plaintiff will schedule the conference. In the scheduling conference, the parties discuss how long they need to conduct “discovery” and set deadlines.
Discovery is essentially the process during which each side conducts their investigation and discloses the evidence they intend on using at trial. The Nevada Rules of Civil Procedure provide for the following ways to conduct discovery:

  • Interrogatories (NRCP Rule 33)
  • Requests for Production of Documents (NRCP Rule 34)
  • Requests for Admissions (NRCP Rule 36)
  • Depositions (NRCP Rule 30)
  • Site Inspections (NRCP Rule 34)
  • Independent Medical Examination (NRCP Rule 35)
  • Subpoenas (NRCP Rule 45)

In cases outside the Arbitration Program or Short Trial Program, the discovery period could last longer than 6 months after the scheduling conference. Oftentimes, it could be as long as a year. The more complex a case is, the longer the discovery period could take. If the parties cannot agree on how long the discovery period should be, the district court judge assigned to the case or the Discovery Commissioner will set the discovery period.
Along with the discovery period, the other deadlines the parties can either agree to or the court can set include deadlines for filing pre-trial motions, deadlines for disclosing experts, and the deadline for the case to be ready for trial.

Dispositive Motions, Pre-Trial Motions & Trial

In cases outside the Court Annexed Arbitration Program or Short Trial Program, the next deadline the parties usually face after the discovery period is the deadline to file dispositive motions. This deadline is usually set 30 days after the end of the discovery period. Dispositive motions are papers or briefs submitted by a party to the court, in which the party asks the court for a case-ending decision. The typical dispositive motion is called Motion for Summary Judgment.

Another deadline the parties face after the discovery period is the deadline to file pre-trial motions. Pre-trial motions usually deal with evidentiary issues. That is, the parties argue what evidence can be shown to a jury or what must be excluded.

The final step is the trial. In cases outside the Court Annexed Arbitration Program or Short Trial Program, trial can last days and, sometimes, weeks. By the time a trial starts in a case outside the Court Annexed Arbitration Program or Short Trial Program, over a year could have lapsed since the lawsuit was started.

If you or a loved one are facing a lawsuit for injuries you sustained as a result of a car accident in Las Vegas, the experienced personal injury attorneys at D.R. Patti & Associates can assist you. With a combined total of 50+ years of experience, we can advise and guide you through the process and obtain the best results possible.

Documenting Your Injuries, Pain, and Suffering When You Can’t See Your Health Care Provider

Documenting Injuries - Pain Diary

With many of us practicing social distancing to help flatten the curve, we have come to learn that many people have been unable to continue their treatment for their accident-related injuries. Many people with accident-related injuries have regularly scheduled doctor, chiropractic, physical therapy appointments. If they miss some appointments, their healthcare providers would normally give them instructions on exercises they can do at home that may help relieve some of their sometimes. Unable to obtain medical treatment, accident victims may be concerned whether their injuries would linger longer or worsen.

Missing health care appointments, however, cause another concern for their personal injury cases. Auto insurance companies tend to argue that a person who is truly hurt, that person seeks medical treatment and that a person who does not seek medical treatment is a person who is not truly hurt. The foregoing is a faulty syllogism, as there are many reasons why an injured person may not seek medical treatment or may have gaps in their treatment. Nevertheless, accident victims must be prepared to respond to such arguments.

One way to counter such arguments and demonstrate injury is to maintain a pain journal. Some physicians will instruct a patient to maintain a written log (journal) of pain-related information and to bring this with them to their office visits. The physician reads the patient’s journal to identify trends in the pain and responses to treatment. The following types of information should be recorded on a daily basis:

  • Your symptoms that day
  • Time when your pain started or got worse.
  • What you were doing at the time the pain started or got worse.
  • The intensity of your pain from 0 to 10, 0 being no pain to 10 being the worst pain you’ve ever felt
  • How long did the pain last
  • What you were doing at the time the pain stopped or got better.
  • Did you take any medication (over the counter or prescription) and what was the dosage
  • Time you took the medication
  • Whether the medication worked and how long did it take to work
  • Any other thing you did to reduce the pain, such as ice/heating pad, TENS, bed rest, wearing a brace, etc.
  • If you had to skip out on any activities, whether work or social engagements, because of the pain or other symptoms

To learn more about what you can do to document or prove your injuries from a car accident, call the experienced Las Vegas car accident attorneys at D.R. Patti & Associates for a free consultation.

D.R. Patti & Associates Obtains Six-Figure Settlement in Las Vegas Scooter Accident

Las Vegas scooter accident settlement

From our extensive experience as personal injury attorneys, we have seen our fair share of unfortunate Las Vegas scooter accidents and the injuries and other damages they cause. Thankfully, we have been able to obtain compensation for Las Vegas scooter accident victims. Recently, we were able to obtain a six-figure settlement for two people riding an electric scooter who was struck and injured by a truck. Unfortunately, based on statistics, we know that this may not be the last Las Vegas scooter accident we see and work on.
In an unstable economy and averaging between 60 to 100 miles per gallon, mopeds and scooters have been the cheaper option for many people, particularly those on college campuses, and their popularity has been increasing.[1] The popularity of this economical mode of transportation is evident on the Las Vegas Strip all the way to downtown, with tourists opting for this cheaper way to see the sights and casino-hop. One study estimates that moped and scooter sales have increased by as much as 60% in recent years.[2]

Unfortunately, the increased use of mopeds and scooters has led to more accidents, crashes, injuries and even fatalities. A recent Florida study found the following to have been common factors in those accidents resulting in severe injuries and fatalities: lack of a helmet, the speed of the moped or scooter, the speed limit in the area of the accident, and the amount of traffic in the area.[3]

It is no surprise that the lack of a helmet has contributed to the more severe injuries and fatalities. In many of these tragic events, the operators of mopeds and scooters were not wearing helmets.[4]The Florida study revealed that only 17% involved in moped or scooter crashes wore helmets. In Nevada, while motorcyclists are required to wear helmets that meet standards set by the U.S. Department of Transportation, those driving mopeds 50 cc or under, with less than 2 horsepower and capable of no more than 30 mph are not.[5]

The Florida study also found a high correlation between the speed of the moped/scooter, the speed limit in the accident site, and the amount of traffic. The number of accidents and severity of injuries increased when the street had three (3) or more lanes of travel.[6]The number of accidents resulting in severe injuries or fatalities also increased when the scooter/moped was driving above 20 miles per hour and the speed limit in the area was over 30 miles per hour.[7]All of these factors make sense – mopeds and scooters traveling in a busier area with faster cars will have greater chance of being involved in an accident and a greater chance of causing severe injuries or deaths. Like motorcycles, mopeds and scooters are sometimes difficult for other drivers to see on the roads. Thus, car drivers, who are likely not anticipating them or looking out for them, will likely not watch out for moped and scooter drivers.

Moped and scooter drivers must watch out for themselves. The lessons from the Florida study: wear a helmet and avoid driving in high traffic areas. Be safe out there.

If you are a moped or scooter driver who is injured in a car accident, call the Las Vegas scooter accident attorneys at D.R. Patti & Associates, or email us and see how we can help you obtain the compensation you deserve.