March 2006, Vol. 28, No. 3
WEDNESDAY, MARCH 8, 2006, 12 NOON, HARRAHʼS CONVENTION CENTER
Nevada Supreme Court: State of the Court
hief Justice Bob Rose will be
joined by the six associate
justices at our March 8
meeting to present the “State of the
Court.” WCBA is very pleased to
have commitments from Justice Nancy
Becker, Justice Bill Maupin, Justice Mark
Gibbons, Justice Michael Douglas, Chief Justice Bob Rose Justice Nancy Becker Justice Michael Douglas Justice Michael Gibbons
Justice James Hardesty and Justice Ron
Parraguirre for this luncheon.
We expect Chief Justice Rose to
address issues facing the Court in 2006
and beyond as well as plans for the future.
Our members will be interested to hear
from all the justices on the Court’s effort
to reduce the backlog, any efforts toward Justice James Hardesty Justice William Maupin Justice Ron Parraguirre
establishment of an Intermediate Court
of Appeals, the newly established Bench
Bar Committee and efforts of the Access WCBA CLE MARCH 23 FOR
to Justice Committee. LAWYERS & STAFF
Justices will also report on the new use
of an established opinon release date YOUR OFFICE: KEEPING
and how the Court decides to hear en UP AND KEEPING SAFE
banc as well as the current panel splits.
If you have a question you would like Think it can’t happen to you? This
included in the conversation, please seminar helps you and your staff
forward to WCBA by fax to 324-6116 prevent and prepare for mini and
or by e-mail to firstname.lastname@example.org. major disasters. Includes technology
choices, employee policies, in-house
security, and much more. Special
RSVP no later than Monday, March 6, 5 p.m. Register online at wcbar.
org where you can safely pay by credit card. Call 775-786-4494
or fax in the form on page 15. $ 20 for members, $25 for non-members. Visa, MC,
rates for administrators, paralegals
and legal assistants. Toby Brown and
Lincoln Mead from the Utah State
Disc and AMEX accepted. Vegetarian meals by request. Casual dress welcome at all Bar are our speakers. See page 9 for
WCBA luncheons. We cannot guarantee a seat without a reservation. details and registration!
2 T H E W R I T /M A R C H 2 0 0 6
The Writ is the ofﬁcial
publication of the Washoe
County Bar Association.
Elliott A. Sattler, II
By John P. Desmond, President
Annual subscription rate for
non-members of WCBA: $36
P.O. Box 1548
Reno NV 89505 uch has been written about how is expanding our services to the community
the practice of law has changed as a whole — services that we cannot afford to
www.wcbar.org dramatically in the last few years. continue to provide if we do not have a dynamic
e-mail: email@example.com There is increased competition and clients number of dues-paying members. We are
Washoe County Bar have higher expectations. The legal system working on putting together a number of CLE
Association Ofﬁcers: is more complex and the practice of law has programs that should be of interest to members
PRESIDENT been shaped by widespread acceptance of (see page 9 for details on our ﬁrst seminar) . We
John P. Desmond new technology. encourage your input if you feel that there are
One ramiﬁcation of these changes is that topics that should be covered in our programs.
PRESIDENT-ELECT some lawyers no longer feel that they have Our goal is to help you meet your annual CLE
Robert A. Dotson as much time to devote to bar association credit requirement through WCBA programs. In
activities. Because bar activities are not addition to the CLE programs, we are currently
VICE PRESIDENT reﬂected on many lawyer’s or ﬁrm’s ﬁnancial working on preparing a newpaper-style reference
Ann O. Hall
323-8678 statements, they are sometimes valued less to distribute to local high school seniors advising
than other work or activities. We should them of their rights and obligations when they
Leslie Bryan Hart
do what we can to take steps to change this turn 18. We are also actively participating in the
788-8666 perception and the negative impact it may high school mock trial program and in a number
have on bar associations and the services they of other important programs. We also continue
Mark Bruce provide. to provide members with monthly luncheons, 11
829-6000 The policies of whether law ﬁrms or issues of the Writ annually, e-mail notiﬁcation of
SERGEANT-AT-ARMS governmental agencies will pay association important issues and events, and other special
Elliott A. Sattler, II dues for their attorneys vary greatly. Some programs.
do not pay association dues for any attorneys. Your membership in the association not only
EXECUTIVE DIRECTOR Some provide a set budget for all bar and supports these programs but also provides clout
Christine N. Cendagorta association memberships and leave it up to for us as a profession. You can help support the
the individual to decide. WCBA is fortunate association by doing what you can to ensure that
to have 100% participation from all of our the ﬁrm or agency that you work for supports the
large and mid-size ﬁrms. Some smaller law WCBA through the individual memberships of
Random Thoughts ......................2
ﬁrms and public agencies only pay dues if the its lawyers. If your ﬁrm or agency does not pay
Conversations on Discovery .......3 member attorney asks the ﬁrm or organization association dues, try to change its policy. This will
Bar Briefs ....................................5 to do so. Some lawyers, for whatever reason, send a message to all your attorneys, especially
Courts .........................................6 simply have not joined. As a result, a few young attorneys, that association membership is
Across the Line ...........................8 colleagues with whom we practice are missing valued and that membership counts. If you can
Family Law Perspectives ..........10
the great beneﬁts of WCBA membership. I not change your ﬁrm’s policy, please do what you
People in the News...................14
Law Library ...............................14
ask each of you to encourage individuals who can to encourage your non-member colleagues
Upcoming Events .....................15
are not WCBA members to remind them of to join the WCBA. If you have ideas on how we
Classiﬁed ..................................16 the beneﬁts of being a member. It is vital to as an association can better serve our members,
have broad participation in order to have an please let us know. Increased membership will
Articles appearing in The Writ express
the views of the authors and not active, dynamic and effective bar association help improve the viability of the Bar and ensure
necessarily those of the WCBA.
For Advertising call The Writ at 775-786-
to speak with credibility on the needs of that we provide great member services in the
4494. WCBA reserves the right to accept lawyers, the legal community and the public. future.
or deny any advertising.
In case anyone asks you, let me remind
you of the great beneﬁts of being a WCBA
member. The Washoe County Bar Association
T H E W R I T /M A R C H 2 0 0 6 3
C O N V E R S AT I O N S
O N D I S C O V E RY
By Wesley M. Ayres, Discovery & Arbitration Commissioner
s noted in an earlier article, v. United States, 844 F.2d 1239, 1246 (6th discovery proceedings:
spoliation of evidence can Cir. 1988). Moreover, penalties will tend It would be unreasonable to allow
result in various penalties. The to deter parties from pretrial spoliation litigants, by destroying physical
law presumes that “evidence willfully of evidence, by “placing the risk of an evidence prior to a request for
suppressed would be adverse if produced,” erroneous judgment on the party that production, to sidestep the district
see NRS 47.250(3), and the Nevada wrongfully created the risk.” See id. court’s power to enforce the rules of
Supreme Court has upheld the application Without question, sanctions would discovery.
of that presumption based upon a party’s be available whenever a party loses or . . . [E]ven where an action has not
spoliation of evidence, see Colfer v. Harmon, destroys signiﬁcant evidence in an attempt been commenced and there is only
108 Nev. 363, 366-67, 832 P.2d 383, 385- to purposely, deliberately, knowingly, a potential for litigation, the litigant
86 (1992). On that same basis, our high and intentionally frustrate an opponent’s is under a duty to preserve evidence
court also has afﬁrmed an order excluding efforts at a successful litigation against it. which it knows or reasonably should
expert testimony, see Fire Ins. Exch. v. Zenith But the supreme court has not limited the know is relevant to the action.
Radio Corp., 103 Nev. 648, 651, 747 P.2d imposition of sanctions to these situations. Id. at 651, 747 P.2d at 913-14 (citations
911, 913-14 (1987); reversed a judgment, “Where a party is on notice of potential omitted).
see Reingold v. Wet ‘n Wild, 113 Nev. 967, litigation, the party is subject to sanctions Ten years later, in Reingold v. Wet ‘n Wild
970-71, 944 P.2d 800, 802 (1997); and for actions taken which prejudice the Nev., Inc., 113 Nev. 967, 944 P.2d 800
upheld the dismissal of an action, see Stubli opposing party’s discovery efforts.” Fire (1997), the supreme court was asked to
v. Big D Int’l Trucks, 107 Nev. 309, 810 P.2d Ins. Exch. v. Zenith Radio Corp., 103 Nev. determine whether defendant’s routine
785 (1991). These penalties are warranted, 648, 651, 747 P.2d 911, 914 (1987). In
in part, because “a party with notice of Fire Ins. Exch., our high court afﬁrmed the
an item’s possible relevance to litigation imposition of evidentiary sanctions despite
who proceeds nonetheless to destroy it is the fact that the key evidence (an allegedly
more likely to have been threatened by the defective television set) was destroyed
evidence than a party in the same position two years prior to commencement of the
who does not destroy it.” See Reingold, 113 lawsuit, and was therefore out of plaintiff ’s
Nev. at 971, 944 P.2d at 802 (quoting Welsh “control” when it was requested during
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4 T H E W R I T /M A R C H 2 0 0 6
policy of destroying ﬁrst aid logs every Reingold, 113 Nev. at 970, 944 P.2d received either item. After commencing
year constituted “willful” suppression of at 802. Thus, the trial court’s decision litigation, plaintiff learned that Southland
evidence for purposes of NRS 47.250(3). It denying plaintiff ’s request that the jury Corporation had forwarded the videotape
answered this question in the afﬁrmative: receive an instruction in this regard was to its insurance company, which apparently
There is no dispute that the records improper. See id. at 970-71, 944 P.2d at lost the tape. The trial court later rejected
were “willfully” or intentionally 802 (proffered instruction was as follows: plaintiff ’s request for the instruction
destroyed. Wet ‘N Wild claimed that “Where relevant evidence which would approved in Reingold, and the jury
all records are destroyed at the end of properly be part of the case is within the returned a defense verdict. On appeal,
each season. This policy means that control of the party whose interest it would the Nevada Supreme Court found that,
the accident records are destroyed naturally be to produce it, and he fails to under these circumstances, the evidence at
even before the statute of limitations do so, without satisfactory explanation, issue had not been “willfully suppressed”
has run on any potential litigation for the jury may draw an inference that such for purposes of NRS 47.250(3). Thus,
that season. It appears that this records evidence would have been unfavorable to application of that statutory presumption
destruction policy was deliberately him”). would be improper. However, in
designed to prevent production of In 2005, our high court revisited this issue accordance with decisions from other
records in any subsequent litigation. in Bass-Davis v. Davis, 121 Nev., Adv. Op. jurisdictions, the court determined that
Deliberate destruction of records 44, 117 P.3d 207 (2005). This case arose the common law provides an independent
before the statute of limitations has as a result of a slip-and-fall accident at a 7- basis for inferring that lost or destroyed
run on the incidents described in 11 convenience store. Approximately one evidence is adverse to the party who lost
those records amounts to suppression week after the incident, plaintiff contacted or destroyed it:
of evidence. If Wet ‘N Wild chooses the store and requested a copy of the store [W]e agree with Bass-Davis that
such a records destruction policy, it incident report and surveillance videotape based upon the facts of this case the
must accept the adverse inferences of regarding her fall. The franchisees of the franchisees should be responsible for
the policy. store told her to contact the Southland the fact that the evidence was lost.
Corporation and she did so, but she never Though the franchisees did not lose the
AMERICAN BOARD OF TRIAL ADVOCATES
SECOND CHAIR/MENTORS FOR SHORT TRIAL PROGRAM
The Reno Chapter of the American Board of Trial Advocates congratulates the
Second Judicial District Court on establishing the Short Trial Program. The following
ABOTA members have agreed to volunteer their time and services as mentor/second chair
for young lawyers trying their first jury trial in the Short Trial Program.
Jack G. Angaran Thomas P. Beko Bill Bradley
Thomas R. Brennan William G. Cobb Peter D. Durney
John Echeverria Robert L. Eisenberg James C. Georgeson
David R. Grundy Bruce Laxalt Don Nomura
Alfred Osborne Albert F. Pagni William E. Peterson
Margo Piscevich Kent R. Robison Julien G. Sourwine
Charles W. Spann
Anyone who is interested may contact the ABOTA member of choice directly.
T H E W R I T /M A R C H 2 0 0 6 5
evidence themselves, they did provide
the evidence to Southland, which
forwarded the evidence to its insurer,
which, in turn, lost the evidence. For the
purposes of safeguarding the videotape
evidence, both Southland and its
insurer were agents of the franchisees.
The franchisees could have preserved
the evidence by copying it before they
forwarded it to their agents. Since they
failed to do so, they are responsible
for their agents’ loss of the evidence. Adams, Discovery Commissioner Wes
Plan now for Ayres. Ed Lemons, Christian Moore, Bill
Bass-Davis, 121 Nev., Adv. Op. 44, at 4,
117 P.3d at 210.
Upcoming WCBA Jeanney and Matt Sharp. On May 19, we
offer Estate Planning with Julia Gold, 9-
The court acknowledged that the CLE Seminars 12:15, 3 cr.
franchisees did not willfully lose or destroy We are planning now for fall CLE
evidence. But it emphasized that spoliation seminars and welcome your suggestions
of evidence nevertheless has a devastating WCBA has some exciting seminars for topics and speakers. Please call Gina
effect on the administration of justice, and planned for this spring. Mark your calendars MacLellan at 786-4494 or e-mail gina@
a contrary result would have the untoward now for “The Purpose Driven Lawyer” on wcbar.org.
effect of encouraging potential defendants May 5, 1:30 - 4:45, 3 cr.. with Judge Brent
to forward damaging evidence to their
insurers who could “lose” the evidence
without any negative effect on the potential
defendants. Thus, it reafﬁrmed its earlier
holding that a party on notice of a potential
claim has a duty to exercise reasonable
care to preserve information relevant to
that claim. See id. at 5, 117 P.3d at 210-
11. Further, it ruled that the following jury
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Id. at 5, 117 P.3d at 211.
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6 T H E W R I T /M A R C H 2 0 0 6
Ninth Circuit Judges
on Potential Split,
Recent Nevada 122NevAdvOpNo3.pdf
Supreme Court Appeal and cross-appeal from a district WCBA members got a rare look into
court judgment and an order awarding the Ninth Circuit Court of Appeals when
Opinions attorney fees and costs in a contract all three of Nevada’s Ninth Circuit Judges
action. Eighth Judicial District Court, answered questions from moderator
Clark County; David Wall, Judge. Andy Gordon from the Las Vegas ofﬁce
Nevada Supreme Court Opinions are Afﬁrmed in part, reversed in part and of McDonald Carano Wilson. Here are
available on the Internet for ninety days remanded. some highlights:
from the date of issue at http://www. • On the often-publicized reversal rate
leg.state.nv.us/scd/OpinionListPage. 4. Moore v. State of the Ninth Circuit, Judge Rawlinson
cfm. After ninety days you will need to h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / said “it’s an urban myth.” The judges all
use another source (e.g. Westlaw) to ﬁnd 122NevAdvOpNo4.html agreed that for the last several years the
the text of Supreme Court opinions. The h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / Ninth Circuit has been within the average
PDF version of the opinion is considered 122NevAdvOpNo4.pdf of all the circuits. They went on to explain
ofﬁcial. that the statistics are difﬁcult to compare
122 Nev. Appeal from a judgment of conviction, because similar cases arise in different
1. George v. State pursuant to a jury verdict, of one count of states and circuits. The Supreme Court
h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / burglary, one count of fraudulent use of a may choose from several cases with similar
122NevAdvOpNo1.html credit card, and one count of possession questions to be decided; then, the court
h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / of a credit card without the cardholder’s that “loses” gets the reversal.
122NevAdvOpNo1.pdf consent. Eighth Judicial District Court, • Asked about splitting the Ninth
Clark County; Michael L. Douglas, Circuit, Judge Hug says “It is frustrating
Appeal from a judgment of conviction, Judge. because those on the Court see it working
pursuant to a jury verdict, of six counts of Afﬁrmed in part, reversed in part, and efﬁciently. We are holding our breath, but
sexual assault and ﬁve counts of lewdness remanded. there is majority support on the Court to
with a minor. Eighth Judicial District keep it as it is.”
Court, Clark County; Sally L. Loehrer, 5. International Fid. Ins. v. State of • Immigration cases have exploded in
Judge. Nevada recent years and an Attorney General
Reversed and remanded. h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / directive says all cases must be resolved
122NevAdvOpNo5.html within one year. The Courts are struggling
2. Bedore v. Familian h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / to keep up with the growth in those cases.
h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / 122NevAdvOpNo5.pdf • Asked about screening cases and
122NevAdvOpNo2.html which decisions are published, Judge
h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / Jurisdictional screening of eight Brunetti explained: “Screening takes
122NevAdvOpNo2.pdf consolidated appeals from district court time. . . We screen off those that don’t
orders denying motions to remit surety need oral argument. Our culture has
Appeal and cross-appeal from a district bonds. Eighth Judicial District Court, been to give you more. That may take a
court judgment in a corporations case. Clark County; Gene T. Porter,
Eighth Judicial District Court, Clark Judge.
County; Gene T. Porter, Judge. Appeals dismissed.
Afﬁrmed in part, reversed in part and
3. Waddell v. L.V.R.V. Inc.
h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / L to R: Judge Johnnie Rawlins, Judge
122NevAdvOpNo3.html Procter Hug, Jr., Judge Melvin Brunetti
h t t p : / / w w w. l e g. s t at e. nv. u s / s c d / and Moderator Andy Gordon
T H E W R I T /M A R C H 2 0 0 6 7
little longer but it’s our culture.” Judge Judges and Jurors Make Decisions”, will Conference will conclude with an open-
Rawlinson explained why not all decisions be presented by Todd Winegar, Esq., one panel discussion with all federal judges in
are published: “We don’t want to write just of America’s highest rated CLE speakers. Nevada.
to see our names in print. We don’t write Mr. Barry Levenson, Esq, curator of the This one-day conference is designed
unless it adds something for lawyers or the Mount Horeb Mustard Museum with to provide Nevada lawyers with an
District Court.” appearances on Oprah Winfrey and opportunity to interact and share ideas with
• John White asked about recent incidents the Food Network, will present a lively the Federal Bench on matters of mutual
when the Court has faced criticism. That discussion on “Law as an Instrument interest. Please mark your calendar and
provided a good opportunity for moderator of Healthy Eating.” The Conference look for the registration information which
Andy Gordon to explain that one of the will also include a panel discussion will be mailed in mid-February. 6 CLE
jobs of the lawyer representatives is to with former jurors which will focus on Credits pending!
testify and help defend the judges. Judge successful communication strategies. The
Brunetti said that the California Bar has
what it calls the “Fire Brigade” to defend
the judges and explain the importance
of an independent judiciary. WCBA
President John Desmond wrote about that
issue in last month’s Writ.
• Judge Hug called the mediation
program a big success, saying it’s the best
in the country. Some 1,000 cases have been
resolved, most before briefs were ﬁled. The
Court has ten mediators with a combined
average of 23 years of experience. The
mediators are employees of the court,
not outside attorneys. “Mediations are not
forced,” Judge Rawlinson said, “because
mediation is more productive if the parties
are willing.” Judge Brunetti added that
“there is a wall between the courts and the Hale Lane announces
mediation program — we are out of the the retirement of
Washoe County Bar is grateful to the JAMES L. KELLY
three judges and to moderator Andy from the firm.
Gordon for the candid discussion.
Jim Kelly was a Shareholder of Hale Lane and a Member of the firm’s
Business Ventures Group for over 15 years. He practiced primarily in
the areas of federal income taxation, corporation, limited-liability
U.S. District Court company, partnership, and general business law.
Congratulations Jim and best
Conference April of luck with your retirement!
From the attorneys and staff at Hale Lane.
13 at Harrahʼs Reno
The United States District Court is
pleased to announce the 2006 District
Court Conference will be held on
Thursday, April 13, 2006 at Harrah’s Hotel
in Reno, Nevada. The keynote address
will be presented by Ninth Circuit Judge
Alex Kozinski, one of the most popular
and respected Circuit Court Judges in the
United States. Judge Kozinski has won
supporters from the left and right with his
common-sense decisions and libertarian
instinct. In 2004, Judge Kozinski was
elected the Number One Male Super
Hottie of the federal judiciary. Another
topic, “How the Mind Decides: How
8 T H E W R I T /M A R C H 2 0 0 6
ACROSS THE LINE
James L. Porter, Porter • simon
CONTRACTORSʼ applied at the pockets.
Construction lender: one skilled at
UNBIASED applying tourniquets.
Completion date: the point at which
VIEW OF liquidated damages begin.
Liquidated damages: a penalty for
CONSTRUCTION failing to achieve the impossible.
Change order: seldom signed request
from owner for free upgrades.
I know I am dating myself, but it was at Plans: a good idea at the time.
least 20 years ago, at least, when I stumbled Diversion of funds: a contractor who
upon some so-called “Construction ﬁnally pays his subs and suppliers before
Deﬁnitions”. the owner pays him on the last job.
I have no idea where these came from, License board: “I’m from the
but I have doctored them up and added a government and I am here to help.”
few of my own. Punch list: a free long-term
While these deﬁnitions deﬁnitely have maintenance contract.
a “woe-is-me” whine, they remind us that Owner: a dreamer with a champagne
construction is a tough business. appetite on a beer budget.
Inspector: another immovable hurdle
CONSTRUCTION in a race to the ﬁnish.
DEFINITIONS Warranty: a one-year period that has
Contractor: a gambler who never gets Auditors: people who go in after the
to shufﬂe, cut or deal. war is lost and bayonet the wounded.
Bid opening: a poker game in which Lawyers: people who go in after the
the losing hand wins. auditors and strip the bodies.
Bid: a wild guess carried out to two
decimal places. Jim Porter is an attorney with Porter •
Low bidder: a contractor who is Simon, with ofﬁces in Truckee, South Lake
wondering what he left out. Tahoe and Reno. He is a mediator and was the
Engineer’s estimate: the cost of Governor’s appointee to the Fair Political Practices
construction in heaven. Commission and McPherson Commission, both
Architect’s estimate: half the involving election law and the Political Reform
engineer’s estimate. Act. He may be reached at porter@portersimon.
Project manager: the conductor of com or at the ﬁrm’s web site
an orchestra in which every musician is in www.portersimon.com.
a different union.
Subcontractor: a musician in an This is another of a series
acappella group. of articles on California law
Critical path method: a management - for Nevada lawyers - authored
technique for losing your shirt under by members of the Truckee,
perfect control. South Lake Tahoe and Reno law ﬁrm of Porter
Delayed payment: a tourniquet • Simon.
T H E W R I T /M A R C H 2 0 0 6 9
KEEPING UP AND KEEPING SAFE (From Server Melt-down to Natural Disasters)
March 23, 2006, 1:30 – 4:45 p.m. • 3 Hours CLE
FEDERAL COURTHOUSE - JURY ROOM
Preparing for and Preventing the Unexpected
When Disaster Strikes: Whether disruption is partial or complete
• Analyze your potential risk
• Insurance – coverage review
• Technology - safeguard your records & equipment
• Formulating ofﬁce policy for disaster recovery – practical choices
• Protecting your clients
• Employee policies and protections
• In-house security breach
This timely and informative seminar will include law ofﬁce technology as well as being prepared for the unexpected. We all
think it canʼt happen to us, but Katrina and Renoʼs second New Yearʼs ﬂood prove that wrong. A “disaster” can be an employee ac-
cidentally or intentionally wiping a hard drive clean or sending a document with data embedded for all to read.
Toby Brown presented the Technology “Bites” CLE in November 2003, and received excellent reviews. Toby is the Direc-
tor of Communications for the Utah State Bar with hands-on planning and execution of technology strategies in other Bar associations
and law ofﬁces.
Lincoln Mead will co-present. Lincoln presented the Solo Small Firm CLE in September 2005, also with excellent reviews.
Lincoln is Information Technology Administrator at the Utah State Bar and also has extensive experience in law ofﬁce management.
In his spare time Mr. Mead serves as an adjunct professor at the Salt Lake Community College where he teaches Technology Essen-
tials for Paralegals.
P.O. Box 1548, Reno NV 89505 • 775-786-4494 • Fax 775-324-6116 • wcbar.org
❏ Early Bird Member (before 3/17/06) - $119 ❏ Non-member $129
❏ Standard Member (after 3/17/06) - $129 ❏ Non-member $149
❏ Paralegal/Secretary (member of SNAP or NALA) - $69 ❏ Non-member $89
Name: _____________________________________________________ Fax to 324-6116
Phone Number: __________________ Fax Number: __________________ Mail to WCBA
Address:____________________________________________________ P.O. Box 1548,
City:______________________________State: ____________________ Reno, NV 89505
Paid by _____check enclosed Questions?
Charge my Credit Card: 775-786-4494
MasterCard _____ Visa____ Discover___ American Express__
10 T H E W R I T /M A R C H 2 0 0 6
Mary Anne Decaria, Silverman, Decaria & Kattelman, Chtd.
IMMIGRATION could not even say the alphabet. custody of a minor child is the child’s best
The Nevada social worker who interests. The district court has broad
STATUS OF performed the same work in Las Vegas discretion in custody decisions and may
found that for at least six or seven years, consider all relevant factors affecting a
PARENT AS the children lived primarily with their child’s best interests, including a parent’s
maternal grandmother in Mexico. Most immigration status and its derivative effects
FACTOR IN of the child rearing responsibilities fell on on the child. “[A]s with all balancing
CUSTODY AWARD the older sibling, M.P., who had to feed,
dress and look out for J.P., who had a
tests, the district court must weigh each
factor that may affect the consequences
speech impediment and difﬁculty learning of placement.” Rico v. Rodriguez, 121 Nev.
and interacting with others. Araceli could Adv. Op. 71 (2005) at 4.
Rico v. Rodriguez, 121 Nev. Adv. Op. 71 not provide the medical care needed to Here, the parents’ immigration status
(2005) correct J.P.’s physical condition. All three was only one of several factors considered
lived in a mobile home owned by Araceli’s by the district court, such as J.P.’s medical
Araceli Rico and Jose Rodriguez had boyfriend. Despite everything, the social and educational issues, the parenting
two children out of wedlock, 12 year old worker concluded that Araceli could responsibilities placed on M.P., Jose’s
M.P. and 10 year old J.P.1 Araceli and the provide a suitable home for the children. employment and his ability to provide
two children are citizens of Mexico and After a second hearing, the district court the children medical insurance, stable
lived there from 1996 to 2003. In 2003, granted Jose primary physical custody schooling and secure living conditions,
Araceli illegally emigrated to the United and Araceli, visitation. The court was and Araceli’s inability to provide healthy
States with the children, and lived in Las concerned about J.P.’s medical and speech contact between the children and their
Vegas. Jose, while a Mexican citizen, was problems and the fact that M.P. had been father. Although the court did consider
a permanent legal resident of the United forced to assume a parental role. The the immigration status of both parents
States and lived with his wife in the State court also noted Araceli’s immigration and the derivative effects on the children
of Washington. When the children asked status, the availability of medical insurance and misinterpreted federal immigration
to live with Jose, he ﬁled a petition for for the children and the stability of their law leading it to wrongly conclude that
custody. After evidentiary hearing, the schooling. The court found that it was in Jose could obtain U.S. citizenship for
district court did not believe adequate the children’s best interests to be placed his children, in balancing all factors,
evidence to base a custody decision was with their father, who was employed, could substantial evidence supported the custody
presented and ordered independent provide medical insurance and stable award in favor of Jose.
evaluations of the living conditions of schooling. The court also believed that On appeal, Araceli argued that her
each party and his/her interactions with Jose had the ability to lawfully allow both constitutional right to equal protection and
the children. children to immigrate and obtain status as due process were denied her because the
A social worker in the State of U.S. citizens. district court considered her immigration
Washington who interviewed the children Araceli asked the court to reconsider its status in making its custody award. The
and evaluated Jose and his home found decision. A third hearing was conducted Fourteenth Amendment of the United
that Jose’s home, while modest, adequately and the district court clariﬁed that Araceli’s States Constitution provides that no state
met the children’s needs. She noted that immigration status was not the primary shall “deprive any person of life, liberty, or
the children were happy, comfortable and factor used in awarding custody to Jose. property, without due process of law; nor
were treated with love. In the course of While immigration was an element, it was deny to any person within its jurisdiction
talking to the children, the social worker only part of its custody decision and other the equal protection of the laws.”
discovered that when they were in Mexico facts and considerations militated in favor
with their mother, they spent most of their of the court’s ﬁnding that the children’s
time with their maternal grandmother, and best interests would best be served if EQUAL PROTECTION
the older child was primarily responsible placed in their father’s custody. Araceli
for the care of the younger sibling. The appealed.
youngest child, J.P., suffered a speech NRS 125.480(1) provides that the sole The ﬁrst question in an equal protection
impediment, lacked formal education and consideration of the court in determining analysis is whether a statute treats similarly
T H E W R I T /M A R C H 2 0 0 6 11
situated persons dissimilarly. The level
of scrutiny to be applied depends on “In a custody dispute between two ﬁt Notes
the type of classiﬁcation the questioned parents, the fundamental constitutional 1 The Nevada Supreme Court no longer provides
law creates. “Where a case presents no right to the care and custody of the the names of minor children or identiﬁes their
judicially recognized suspect class or children is equal. Since the fundamental gender in its opinions. This makes it very difﬁcult
fundamental right that would warrant interests of both parties in raising and to use clear, unstilted sentences when writing about
a case, as pronouns (other than an unacceptable
intervention under a standard of strict educating their children are identical, the one such as “it”) and gender related identifying
scrutiny or where it presents no quasi- dispute in such cases can be resolved best, characteristics such as boy, girl, brother, sister, son
suspect class such as sex, illegitimates or if not solely, by applying the best interest or daughter cannot be used. In the instant case,
the poor that would warrant application of the child standard.. . . Accordingly the Supreme Court identiﬁed the children by their
of intermediate level scrutiny, we analyze [Araceli and Jose] stood on equal footing initials, which makes reading the case even more
confusing. Did M.P. take care of J.P., or was it the
the challenged law under the rational basis before the district court when asserting other way around?
test. A statute meets rational basis review their right to custody of their children.”
so long as it is reasonably related to a Id. at 7. Because the court considered all
legitimate government interest.” Id. at 5. relevant factors and not solely Araceli’s
Where the questioned law contains no immigration status, there is nothing in the Mary Anne Decaria is a partner in Silverman,
classiﬁcation or has a neutral classiﬁcation record to indicate that the custody award Decaria & Kattleman, Chtd.
and is applied even handedly, it may was based primarily on her alienage. She served on the Family Law
violate equal protection rights if in reality There was no violation of Araceli’s due Section Executive Council and
it is a “device designed to impose different process rights. The lower court’s decision chaired the Northern Nevada
burdens on different classes of persons.” was afﬁrmed. Disciplinary Board. Her columns
Id. at 6. are online at wcbar.org.
Here, NRS 125.480 is facially neutral.
“It creates no classiﬁcations and sets forth
QDRO SUPPORT SERVICES
that child custody determinations should
be based solely on ‘the best interest of
the child.’” Id. Araceli failed to establish
that the statute is designed to discriminate
For advice, assistance, consulting or QDRO drafting. . .
against parents based on their immigration
status. Child custody determinations are Contact an Experienced Pension Expert
made on a case by cases basis, and rest
upon the facts and circumstances unique MARVIN SNYDER, CONSULTING ACTUARY
to each particular case. The district court 2100 Timber Rose Drive, Las Vegas, NV 89134
considered Araceli’s and Jose’s immigration 702.869.0303
status only to determine the children’s
best interests and there is nothing which
indicates that the court’s decision turned
solely on Araceli’s immigration status.
Araceli could not demonstrate how the We have moved!
statute discriminated against her in the
context of a child custody determination.
The Law Ofﬁce of PORTER · SIMON
is at a new Reno location.
You can ﬁnd us at 5421 Kietzke Lane, Suite 100; (775) 322-6767
The Fourteenth Amendment “‘provides
Mountain View Corporate Center
heightened protection against government
interference with certain fundamental James L. Porter Jr. James E. Simon*
rights and liberty interests.’” Id., citing Peter H. Cuttitta Stephen C. Lieberman*
Troxel v. Granville, 530 U.S. 57, 65 (2000). Steven C. Gross Kelley R. Carroll
Parents have a fundamental interest in the
care, custody and control of their children
Kenneth P. Craig Julia S. Gold
which applies regardless of immigration Pamela M. Everett* Brian C. Hanley
status. “[T]he Equal Protection Clause
of the Fourteenth Amendment prohibits *California Only
discrimination based ‘on alienage, . . .
nationality or race’ that does not meet
strict judicial scrutiny.’” Id. at 6, 7.
12 T H E W R I T /M A R C H 2 0 0 6
10 t h A n n u a l The Young Lawyers Section of the State Bar of
Nevada is pleased to bring you the 10th Annual
Sagebrush Scramble Golf Tournament.
Open to everyone, lawyers and non-lawyers alike.
Grab your sticks and/or make a donation.
Charitable proceeds will assist the Court
Appointed Special Advocates Program (CASA),
committed to protecting children engaged in the
juvenile and family court system.
LOCATION: The Resort at Red Hawk, 6600 N. Wingfield Pkwy., Sparks, NV
DATE: May 19, 2006
SCHEDULE: TIME EVENT
12:00 p.m. Lunch and Registration
1:30 p.m. Shotgun Start/Four Player Scramble
COST $125 per person - Includes lunch, golf, cart, range balls,
CONTACT: Scott Giles or Carli West at YLS.Golf@gmail.com
#1 PLAYER NAME:
E-MAIL/TEL NO: AVG. SCORE:
#2 PLAYER NAME:
E-MAIL/TEL NO: AVG. SCORE:
#3 PLAYER NAME:
E-MAIL/TEL NO: AVG. SCORE:
#4 PLAYER NAME:
E-MAIL/TEL NO: AVG. SCORE:
Number of Players ________ x $125 = _____________ TOTAL
I am unable to participate. However, enclosed is a donation in the amount of $___________
CHECKS PAYABLE TO: STATE BAR OF NEVADA
MAIL TO: Carli West, The Resort at Redhawk PLEASE RESPOND BY
6600 North Wingfield Parkway APRIL 14, 2006
Sparks, Nevada 89436
The Young Lawyers Section would like to again thank last year’s tournament sponsors:
Silverman, Decaria & Kattelman, Chtd. Sierra Legal Duplicating Schultze, Boone & Associates
Molezzo Court Reporters International Game Technology Marshall Hill Cassas & de Lipkau
Family Law Section, State Bar of Nevada Erickson, Thorpe & Swainston The Kattelman Family
Thorndal, Armstrong, Delk, Hon. Deborah Schumacher McDonald Carano Wilson, LLP
Balkenbush & Eisinger Reno-Carson Messenger Service Barnard, Volger & Company
Georgeson, Thompson & Angaran Victoria Mendoza, Esq. Gabrielle J. Carr, Esq.
Mark Gunderson, Esq. Peter Chase Neumann, Esq. Bader & Ryan
Watson Rounds Calvin Dunlap, Esq. Littler Mendelson, P.C.
Law Offices of Logar & Pulver Jones Vargas The Bowen Family
T H E W R I T /M A R C H 2 0 0 6 13
People In The News
Election News Nevada Bar in 1949, and then practiced State Bar Grant
with his father, John Sinai, for many years.
Donations are welcome at That Man May Money Available
There are many judicial and law related See, the organization closest to his heart,
elections coming in November 2006. at 10 Koret Way, P.O. Box 0352, San
The Writ will include news of seats being Francisco, CA 94143. A personal memorial The State Bar of Nevada offers the
vacated along with mention of candidates will be printed in the April Writ. Public Service/Law Related Activities
in the people column. We gather the news Grant Program. Grants will be awarded to
from the Reno Gazette Journal. If you are a assist Nevada organizations in the funding
candidate or know of candidates, please People News of law related public service and/or law
let us know at 775-786-4494. related educational activities. Awards will
Nevada Supreme Court Chief Justice be made annually on a “funds available”
Bob Rose announced that he is not seeking Hon. Jack Schroeder, of Reno Justice basis, and all applications shall be subject
re-election. Justice Nancy Becker will run Court was elected to serve as president to review and ﬁnal approval by the Board
for re-election as will Justice Michael of the Nevada Judges Association. He of Governors of the State Bar of Nevada.
Douglas. Clark County District Court will serve a one-year term which began in For an application and for more
Judge Michael Cherry has announced his January 2006. information, please contact Gale L. Skala
candidacy for the seat being vacated by at firstname.lastname@example.org , or at (702) 382-2200.
Justice Rose. Applications must be postmarked by
Reno City Attorney Patricia Lynch has March 15, 2006.
announced her candidacy for the seat on
Reno Justice Court being vacated by Judge
Fidel Salcedo. Attorneys Brett Kandt, John
Kadlic and Ken Stover have all announced
plans to run for that position.
Incline Village Justice of the Peace James
Mancuso has announced his plans to retire
from that position. E.A. “Bo” Pollard and
Alan Tiras, both Incline Village lawyers,
have announced intentions to run for that
In Carson City, Judge Robey Willis is
seeking reelection to the seat on Justice
Court that he has held since 1989. Mark
Krueger, Senior Deputy Attorney General,
is opposing him in that election.
David P. Sinai, senior law partner
at Sinai, Schroeder, Mooney, Boetsch,
Bradley & Pace died in Reno February
2 after a short illness. Sinai attended
local elementary and high schools and
graduated from UNR. He graduated from
Hasting Law School, was admitted to the
14 T H E W R I T /M A R C H 2 0 0 6
PRO BONO CORNER
Family Pro Bono State Bar of legal services; working with and assisting
existing pro bono programs, and helping
Lawyers Needed to Nevada Seeks Pro develop and implement new programs;
and writing articles on pro bono activities
Take One Case Per Bono Coordinator for Nevada Lawyer and other state bar
Year Qualiﬁcations: Degree or equivalent
The State Bar of Nevada is seeking a experience in legal services, government
pro bono coordinator to support the bar’s or politics. Law degree preferred;
Washoe Legal Services needs additional mission by promoting and facilitating Thorough knowledge of the legal services
family law pro bono volunteers. The volunteer pro bono legal services for the delivery system and legal aid and pro bono
present work load is being unfairly placed poor throughout the state. programs; considerable knowledge of
on too few attorneys. We need additional Duties will include: updating and public relations and program development;
volunteer attorneys to handle one family publishing an annual directory of effective oral and written communication
law case per year. Please call Richard G. organized pro bono programs in Nevada; skills.
Campbell, Sr. at 329-2727 ext. 121 to delivering presentations promoting Send a cover letter and resume with
volunteer. development and participation in pro salary history to Executive Director, State
bono programs; servings as staff liaison Bar of Nevada, 600 East Charleston Blvd.,
to the bar’s Access to Justice Section and Las Vegas, NV 89102-1563. Fax 702-382-
other groups concerned with pro bono 2075.
L AW L I B R A R Y L E T T E R S
Sandy Marz, Law Librarian
LIBRARY HOURS: LAWYER IN THE LIBRARY The Writ welcomes letters to the editor
regarding articles in The Writ. Columns
I would like to thank the following and articles in The Writ express the views
M-Th 8 a.m. – 9 p.m. attorneys for participating in the Lawyer of the authors and not necessarily those of
Fri. 8 a.m. – 5 p.m. in the Library program this past month: WCBA. We publish articles and viewpoints
Sat.-Sun. 10 a.m.–5 p.m. Ian Silverberg, William O’Mara, Leah that are educational, interesting, sometimes
Wigren, Eric Lerude, and Garrett humorous and occasionally provacative.
Gordon. I would also like to thank Dennis Letters should be no more than 250
Cameron for presenting the seminar, words in length and may be sent to Writ
“Social Security Disability Law.” Please Editor, P.O. Box 1548, Reno, NV 89505.
call Nikki Britt at 328-3250 if you would We reserve the right to edit for length.
like to volunteer.
T H E W R I T /M A R C H 2 0 0 6 15
MARCH and Bar may better serve the Bar
and the public.
8 WCBA luncheon, Harrah’s Reno. 23 Your Ofﬁce: Keeping Up and
All seven justices from the Nevada Keeping Safe, Federal Courthouse
Supreme Court will present the Jury Assembly Room, 1:30 - 4:45, 3
“State of the Court.” Fax the form cr. CLE. See page 9 for details.
below, call 775-786-4494 or register
online at wcbar.org by March 6. APRIL
10 Retirement party for Judge Peter
Breen, Eldorado Hotel & Casino. 19 NALS of Washoe County will be
Details, Ronda Clifton, 786-1769. holding its general meeting at Heidi’s,
15 Probate Bar Association, 12 noon, 2450 S. Virginia., Reno, 826-3336
Famous Murphy’s. Topic to be during the noon hour. Guest speaker
announced. RSVP 324-7822. will be Capt. Don Means, Washoe
15 NALS of Washoe County general County Sheriff Dept., whose topic
meeting and installation of ofﬁcers will be “CSI: Washoe County. CLEs
at Heidi’s, 2450 S. Virginia., Reno, will be given. Please RSVP with
826-3336 , 12 noon. RSVP with Meredith Marinello at (775) 853- will be in Dept. 8 of the Second
Meredith Marinello at (775) 853- 5700 no later than April17, 2006. Judicial District Court. Registration
5700 no later than March 13, 2006. 26 Dennis Green (Westar) on Accident fee for each is $20, payable at the
20 Reno Justice Court Bench Bar Reconstruction. CLE certiﬁcates door; checks made payable to NALS
meeting on Monday, March 20 at for 1.5 hours for each evening (also of Washoe County. Please no food or
4:30 p.m. at One South Sierra St., May 24, Grammar and June 28, drinks in the courtroom. If you have
Second Floor. Bar members are Domestic Violence) for both NALS any questions, please contact Susan
invited to discuss with the Bench and SNAP. Each program will run Davis at 786-6868 or Marianne
their concerns about how the Bench from 5:30 p.m. to 7 p.m. Location Hiser at 788-2000.
Nevada Supreme Court: State of the Court
WEDNESDAY, MARCH 8, HARRAH’S CONVENTION CENTER
Law Firm/agency ________________________________________________________
❏ $20 per person ❏ $160 table of 8
❏ Check enclosed for $________
❏ Will pay at the door
❏ Bill my Visa/MC/AmEx for $______________
Card # _________________________________Exp. _______3-digit security code______
Billing Address for card ______________________________________________________
FAX TO 324-6116
Mail to: WCBA, P.O. Box 1548, Reno, NV 89505
Register online at wcbar.org. Pay by credit card on our new secure site!
16 T H E W R I T /M A R C H 2 0 0 6
exceptional beneﬁts, including high rise window ofﬁce and
annual Hawaii retreat for all attorneys and spouses. Send
resume to email@example.com.
C L A S S I F I E D OFFICE SPACE
❖NEW BLDG. IN MOUNTAIN VIEW CORPORATE
CENTER. Design your own space. Generous tenant
improvement allowance. Contact Gayle Kern 324-5930 or
EMPLOYMENT community lawyering and social justice, a minimum of firstname.lastname@example.org.
four (4) years of legal experience, a license to practice ❖LAW OFFICE SPACE FOR RENT at 527 California
law in any state in the nation, and be willing to sit for the Ave. CM/ECF supported with Internet access, ofﬁce
❖COMMERCIAL AV RATED LAW FIRM is next available Nevada Bar exam. A familiarity with Legal machines, etc. available. Relaxed atmosphere near all
seeking: LITIGATION ATTORNEY for Reno ofﬁce with Service Corporation funded programs is preferred. To courthouses. Both large and small suites available. 329-
up to 3 years’ commercial litigation experience (Nevada apply, please send cover letter, resume, and writing sample 4999.
license preferred). LITIGATION ATTORNEY for to: Wayne Pressel, 841A East Second St., Carson City, NV ❖HISTORICAL OFFICE FOR LEASE at 520 Mt. Rose
Las Vegas ofﬁce with 2 to 5 years’ commercial litigation 89701 email@example.com. Street; close to courthouse and work out centers; 1400
experience. E-mail resume to recruitinghr@halelane. ❖STATE OF NEVADA - DEPARTMENT OF sq. ft. with seven off-street parking spaces. For additional
com. PERSONNEL is accepting applications for service for four information please call 786-7676 or set up an appointment
❖ASSOCIATE ATTORNEY POSITION AVAILABLE (4) positions. These include Hearing Ofﬁcer – Southern to see.
at the Reno ofﬁce of statewide civil litigation ﬁrm handling Nevada, Hearing Ofﬁcer – Northern Nevada, Alternate ❖STATE OF THE ART OFFICE BUILDING for lease at
serious personal injuries, product liability and medical Hearing Ofﬁcer – Southern Nevada and Alternate 580 Mt. Rose Street; 2600 sq. ft. with an attached two-car
malpractice. Should have 3-7 years experience, including Hearing Ofﬁcer – Northern Nevada. Responsibilities garage; eight off-street parking spaces. Available in March.
(preferably) at least one jury trial. Please submit a resume, include hearing cases related to disclosure of improper Please call 786-7676 for additional information or set up
writing sample and a list of references to 3185 Lakeside governmental action, dismissal, suspension, demotion and an appointment to see.
Dr., Reno NV 89509. Salary D.O.E. with excellent beneﬁts. involuntary transfer of State employees as provided in ❖FORMER ATTORNEY’S OFFICE: In-close SW
Conﬁdentiality of inquiries will be respected. NRS Chapter 284. Decisions issued are subject to judicial location. Multi-tenant ofﬁce building, large individual
❖PARALEGAL AND LEGAL SECRETARY POSITION review. Applicants must be licensed Nevada attorneys, ofﬁces from 300-600 sf., includes use of conference room.
available at the Reno ofﬁce of statewide civil litigation ﬁrm preferably with experience in administrative law. To obtain Contact Mallard Investment Management 775-786-9315.
handling serious personal injuries, product liability and information necessary to submit applications, visit our
medical malpractice. Must have adequate experience in website at www.dop.nv.gov/hearingsofﬁcer.html, or call
Beverly Ghan at (775) 684-0126. Applications deadline:
one or more of these areas. Salary d.o.e. with excellent
beneﬁts. Conﬁdentiality of inquiries will be respected. March 31, 2006. EOE/AA
❖TRANSCRIPTION - PROFESSIONAL AND
Please submit a resume and list of references to 3185 ❖ASSOCIATE ATTORNEY WANTED FOR FAMILY
RELIABLE service, competitive pricing, ﬂexible to serve
Lakeside Drive, Reno NV 89509. LAW at the Law Ofﬁces of Marilyn D. York. Nevada bar
your needs. Pick up/drop off services available. Please
❖RENO FIRM NEEDS EXPERIENCED LEGAL and 2+ years experience in family law preferred. Good contact Juleie Rowan at 775-745-2327.
SECRETARY for litigation practice. Insurance defense legal writing and computer skills are necessary. Top pay
experience greatly preferred. Salary extremely competitive and beneﬁts for top legal staff. Please fax resume to 324-
and commensurate with experience. 324-6500 ask for 7991. MISSING WILL
Kelly. ❖THE WASHOE COUNTY SENIOR LAW PROJECT
is administering a one-year grant to provide representation ❖SEARCHING FOR LAST WILL AND TESTAMENT
❖EXPERIENCED ATTORNEY AVAILABLE for for Thelma Cynthis Grifﬁn, who died on October 11, 2004.
contract work. Court appearances, research, trial assistance, for elderly persons (wards) in guardianship actions. We
may need additional contract attorneys to provide such If you prepared her will, please contact Dawn Ellerbrock,
discovery, and preparation of motions, pleadings, and attorney for Special Administrator, 775-687-0202.
representation. If you are interested and have 5 years or
briefs. CA and NV licensed. Amy Henderson. 775-322-
more of experience with elder law issues or guardianship
matters, please contact 775-328-2592.
❖NEVADA LEGAL SERVICES, AN LSC FUNDED
❖ASSOCIATE POSITION FOR RECENT LAW
NON-FOR-PROFIT with 4 ofﬁces statewide, is seeking
SCHOOL graduate available in Reno ofﬁce of Robertson
a highly organized and zealous Managing Attorney
& Benevento, a statewide business litigation ﬁrm. Local
for Reno’s Biggest Little Legal Services law ofﬁce. All
ties and excellent academics preferred. Top salary and
applicants should have a demonstrated commitment to
U . S . P O S TA G E
P A I D
R E N O , N E VA D A
PERMIT NO. 418
P.O. Box 1548, Reno, NV 89505
RETURN SERVICE REQUESTED