litigation

A Long-winded Explanation of a Long-winded Process: What to Expect if you Decide to File a Lawsuit

I’ve chosen to tackle this subject based on consistent misunderstandings I have observed with new clients. Perhaps it is due to the swift justice we see on television shows where a suit is filed, investigated, and tried all in the span of 60 minutes (minus commercials). In reality, the process can take months or years, even in relatively simple cases. This blog isn’t meant to dissuade you from filing a suit, but rather to just inform you of what you need to expect in most circumstances so you go in with eyes open. Here’s what you can expect if you decide to step into the shoes of a plaintiff and file suit in Nevada:

1.            Your attorney will likely first try and engage the defendant in settlement negotiations prior to filing. Rarely can you settle anything but the smallest cases outside of litigation, since insurance companies will often try the ol’ “ignore it and maybe it’ll go away” defense. Still, it is worthwhile to try and open these discussions before shelling out the filing fees and beginning discovery. This process can take anywhere from two weeks to a couple of months while a claims file is opened and the defendant or adjuster asks for basic case information and records.

2.            If those negotiations do not result in a settlement, then you go ahead and file a Complaint. That is the document that begins your action. The filing fees in Las Vegas are around $250.00 depending on your case, and the defendant gets 20 days to file an Answer. Often, though, a Defendant will request an extension to file an Answer because there is a delay between receiving the Complaint and getting an attorney on board and up to speed. Good lawyers grant these extensions instead of playing hardball for no reason. This initial process should be expected to take three to six weeks.

3.            The next question in Las Vegas litigation is whether your case is required to be litigated in arbitration or not. If your case is very small, it likely will get pulled into the mandatory arbitration program. This means you do not usually get a jury trial, but you get a quicker case resolution before an arbitrator – usually about 6-9 months for an arbitration compared 18 – 24 months (or longer) for trial. The arbitrator can only award up to $50,000.00 for your claim, though. If your case does not qualify for arbitration, though, then your lawyer needs to file a request to remove it from arbitration. This should be expected to take 25 – 45 days based on the back log for the ADR commissioner we have seen recently. Since arbitration is a quicker, easier, and cheaper process, I’ll just focus on what happens if your case is taken out of arbitration for the remainder of this blog.

4.            Now, you will start moving into “discovery.” This is the phase of a case that can last 6 – 12 months (or longer, based on motion filings later) wherein each side gets to investigate the claims and defenses. Most defendant law firms have standard discovery requests they will issue to you called interrogatories (written questions you have to answer under oath), requests for production (written requests for you to give them documents), and requests for admission (written questions they want you to admit to settle certain issues for certain). Good firms tailor these questions to the actual case and limit them to only questions they really want answers to. Bad firms just pull up their standard list, use “find and replace” to put your name instead of the last party’s name, and send them out. We handle a lot of defense cases here at MLO, and our policy is to always tailor the discovery requests to the specifics of the case and not try and harass or burden the plaintiff just to be difficult. What goes around comes around, after all. But many defense firms use these requests more as a way to make money for the firm than as a way to investigate the case, unfortunately.

5.            The next phase of discovery will usually involve depositions. Depositions are like a dry run of trial testimony but in a more informal and friendly manner. The other side’s lawyer will issue a notice to your lawyer saying they want to sit you (or your witnesses, family members, etc.) down and ask you a bunch of questions under oath and with a court reporter present. Depositions are far more useful than written discovery requests because you have to answer the questions in real-time without your attorney assisting you. Your attorney will sit next to you and try and protect you from bad or improper questions, but for the most part you will have to answer the vast majority of questions asked on your own. If you’re the plaintiff, these questions can be about your injuries, your family, and even some very embarrassing things. Your attorney needs to sit down with you beforehand and explain the process and let you know what types of questions to expect so you aren’t caught off-guard. Your deposition may be videotaped, also. But your attorney should let you know well in advance whether it will be videotaped. Most depositions are not videotaped, but rather just rely on a court reporter to transcribe the proceedings.

6.            Once the fact witness depositions are completed, the next phase of discovery usually involves expert witnesses. This is where the parties have an opportunity to find experts in their fields who will support the arguments offered by each side. A plaintiff in a personal injury case may get an expert to explain to the jury how the injuries were caused and what kind of treatment was necessary and reasonable. A defendant in that same case may get experts to explain to the jury why the accident was not the fault of the defendant or to tell the jury that the treatment sought by the plaintiff was not justified, reasonable, or related to the accident. Experts are expensive, though. They will usually charge you to issue their “expert report” and then they will also usually get deposed by the other side, which is expensive. They can eat into your recovery by a substantial amount, even though your attorney usually will front the expenses. Because of this, it can sometimes make sense to try and discuss settlement with the other side before you sink too much money into expert witnesses. This is the same for both plaintiffs and defendants; we advise plaintiff and defendant clients that the best chance to settle can often come before the parties sink a lot of non-refundable money into expert costs.

7.            Settlement and mediation are tricky things these days. The fundamental problem with mediation and settlement is that you are asking an attorney for the defendant to do something against his or her own self-interest; if you settle the case, the defense attorney no longer gets to bill on the file and make money. Additionally, the plaintiff’s lawyer cannot speak directly to the defendant, but rather has to go through his or her attorney, so you have no idea whether the defense attorney is actually properly communicating the strengths of your case to his or her client and/or insurer. Good defense attorneys realize that you get more work by doing the right thing for your client than you do by dragging cases out to make more money. Smart clients and smart insurance adjusters can tell when a defense attorney is dragging out a case or making more work than necessary. Our firm’s philosophy when we work for defendants is that the best marketing you can do is to get your client a good result and save them money, even if that means settling early. They will usually come back and may refer you even more work in the industry because you’ve done a good job for them. Unfortunately, there are many firms we deal with when we represent plaintiffs that do not share this philosophy. We routinely get insulting, ridiculous settlement offers from these firms and watch them try and bury us in discovery requests and excessive depositions. Often, these firms will bill more than the case was ever possibly worth but their clients never realize it. It’s frustrating, but it’s just part of the business these days.

8.            If settlement fails and you get through expert witness reports and depositions, there isn’t much left between you and trial. Discovery will be closed, so it’ll be less about determining the facts at this point and more about your lawyer fighting the other side over what evidence can be considered by the jury.  This phase is called the pre-trial phase, and it consists of Motion In Limine (a Latin phrase meaning “at the threshold,” where you ask a judge to determine an evidentiary issue before you get to trial) and Motions for Summary Judgment (where you ask a judge to just end the case now because your arguments are so awesome a jury will always agree with you, essentially – these rarely win, but are still worth a shot in the right circumstances). The pre-trial phase usually lasts 60-90 more days.

9.            Then comes trial. Very few cases actually get to trial, however. If your case goes to trial, you should expect that your lawyer will want you present for the entire trial because the jury needs to see you there, invested in your case. The jury will pay very close attention to your behavior at trial, so make sure to dress appropriately, don’t react too much at what is happening, and try and do your best to appear friendly/polite/professional in every interaction. You would be amazed how much a jury will care about this; they need to think they’re doing the right thing by finding in your favor, so don’t give them any reason to dislike you.

10.          After the trial, you would think you’re done – but that isn’t always true.  Depending on the result, the actual final phase is oftentimes an appeal. An appeal is when one party (usually the losing side) says that the trial court messed up an important issue and they want a higher court to change the decision. Appeals are done for a lot of reasons, but one of the more common reasons is to force the winning party to take something less than they won at trial. Appeals can take months or years and require a lot of work and money. The winning party may decide it would rather not risk the appeal winning and potentially having to go through trial all over again, so that party may agree to settle the case for a lower value.

All in all, the litigation process usually takes at least two years from start to finish, and our office has handled cases that take more than five years from start to finish. This can feel like an eternity when it is your life that is disrupted.

What should you do while this is all playing out?

The key for you is to stay involved and stay in communication with your lawyer throughout the process. Your lawyer is (hopefully) busy and has a lot of cases. It’s not personal if your lawyer hasn’t contacted you in a while with an update – litigators function on a “what’s hot right now” schedule of communication and review. We’d go crazy if we were looking too far down the road all the time, so we focus on what’s in front of us and rely on our staff to keep us abreast of deadlines. You make your case “hot” by sending a quick e-mail to your lawyer every few weeks saying “Hey, anything going on? What’s coming up next?” It forces your lawyer to sit down and evaluate your case and make sure nothing is being missed. It also ensures that your case remains a priority for your lawyer, even if your case may not be his or her largest file. As long as you’re not overdoing the “check-ins” or being unreasonable, most litigators I know appreciate the client staying involved.

- Andy Muehlbauer

Changes to Nevada’s Construction Defect Law – What Does it Mean for Homeowners?

As you probably have heard, Governor Sandoval recently signed into law Assembly Bill No. 125 (“AB 125”) that drastically changed the landscape of construction defect claims in Nevada. Nevada had been at the forefront of pro-homeowner legislation for about two decades in this field. Lawyers flocked to Nevada to practice construction defect law because of the drastic increase in the number of cases Nevada’s “Chapter 40” statute had brought about.  AB 125 was passed for many reasons, but the primary purpose was undoubtedly to curb that trend.

There are many provisions of the Bill that will have a substantial impact on litigation in Nevada, but the most important provision for the general public is certainly the changes to the statute of repose. A statute of repose is a lot like a statute of limitation, which is the more familiar term to most. It sets a deadline for an injured party to bring his or her claim. If you don’t file a lawsuit or do something else to toll (postpone) the statute, then you could be barred from filing a lawsuit.

Under the old system, homeowners would have anywhere from 6-12 years after purchasing their new home from a builder to bring a construction defect lawsuit. Construction defect lawsuits included everything from minor issues, like paint peeling, all the way to the big problems, like foundation cracking. Due to the statute of repose, you would see homeowners that were nearing the end of their statutory period filing lawsuits to “preserve” the statute and get the builder to come out and repair anything that was wrong with their home (or, in the alternative, write a check). Many times these lawsuits will act as a whole-home checkup and facelift because the definition of a “construction defect” under the statute was so broad that almost anything could qualify. The threat of attorney fees and expert fees encouraged homebuilders to pay substantial settlements just to get rid of the claims.

The problem with the old statute of repose was that the language of the statute was so poorly written that no one could be 100% certain of when their home was beyond the statute. I won’t bore you with the finer points of the law here, but the concept of the statute was a good one: defects that were obvious had shorter statutory periods and hidden/concealed defects had longer periods. The execution of this plan was horrible, however, and most lawyers in Las Vegas just assumed that any owner of a home built less than 12 years ago was capable of filing a lawsuit. 

This is all gone now. In AB 125, the legislature has changed it to one uniform statute of repose: six years from substantial completion of your home. Substantial completion is essentially the date that your home is fit for occupancy, and is defined in the statute in more detail. This statute is going to apply retroactively, meaning that it will apply even to homes that were built before AB 125 was passed.  So if your home was built from 2003 - 2009, this law will bar you from filing a lawsuit against the builder in the very near future.

There is a one-year grace period built into the new statute, however, to protect homeowners who may be affected by this drastic change of policy. If your statute of repose is set to expire this year and your claim “accrued” prior to the effective date of AB 125 (which is February 24, 2015) you may still be able to file a lawsuit as long as you do it quickly.   

I have litigated thousands of homes in construction defect litigation here in Nevada, representing clients who sue and who get sued, and I was initially very happy to see reforms being made to construction defect law in Nevada. The system that was designed to protect homeowners was routinely abused to the point where even well-built, quality homes were joining construction defect litigation and putting small businesses into bankruptcy. The majority of the changes are good ones, which should help builders and insurance companies return to Nevada and help our economy grow over the next decade.

I believe the change to the statute of repose was a mistake, however. There needed to be revisions to the statute of repose, but reducing it to a blanket six years goes too far. I have litigated hundreds of homes that didn’t show any signs of soil movement or structural damage until the homes were at least 4-5 years old. My top civil engineer expert witness has repeatedly said that many homes with expansive soils will not show their full signs of damage until five years or more after construction.

The best advice I can give you if your home was built from 2003-2009 is to take the time now to investigate your home. Have a home inspector come out and check your home or talk to a construction expert and have him or her take a look around your home if possible. Most of us cannot possibly identify signs of problems that are on the horizon; we can only spot the most obvious of defects. Hopefully your home is in great shape and you’ll have the peace of mind that comes with having it inspected. If not, the time to act is now. There is no guarantee you will succeed on your claim, but you will lose your right to even try if you don’t take action this year. 

- Andrew R. Muehlbauer, Esq.