Vegas Legal Magazine - Fall 2016

FALL 2016 CONTENTS

47

LAW

8 // JUDICIAL RACES RECAP 13 // GETTING PAID 16 // AGE-DATING DISC INJURY 20 // CIVILITY & PROFESSIONALISM 22 // CIVIL JURY TRIAL 27 // LICENSE TO KILL 31 // ECONOMIC DAMAGES IN NEVADA 35 // MEET THE INCUMBENT 41 // TIP POOLING & THE LAW 44 // THE COURT OF PUBLIC OPINION 47 // THE BATTLE FOR THE PRESIDENCY

COVER STORY

Battle For The Presidency

56

BUSINESS

53 // HENDERSON’S HOSPITAL OPENING 56 // MEDICAL MARIJUANA 58 // MONEY MATTERS: PLANNING YOUR EXIT 60 // THE INSIDE TIP 63 // BRINGING TINSELTOWN TO THE DESERT

LIFESTYLE

67 // FALL FASHION 72 // MARTIN LAWRENCE GALLERIES 75 // BAR REVIEW 77 // BABY BOOMERS 80 // HEALTH & FITNESS: THE NEW LUXURY 87 // OVERDOSE EMPIDEMIC 98 // HUMOR

BUSINESS:

Nevada’s New Growing Business

80

LIFESTYLE

Fitness: Nevada’s Newest Luxury

Vegas Legal Magazine Fall 2016 | Pg. 3

Meet The Team www.vegaslegalmagazine.com

EDITOR IN CHIEF | PRESTON P. REZAEE, ESQ. PUBLISHER | TYLER MORGAN, ESQ. CREATIVE DIRECTOR | TIMOTHY HANCOCK DIRECTOR OF OPERATIONS | JEFFRY COLLINS MANAGING EDITOR | JEN CHASE V.P. OF MARKETING | CHARLOTTE EVANS CONTRIBUTORS

KENNETH BAHOORA, D.C., P.C., ELENA CASTRIOTA, J. MALCOLM DEVOY, ESQ., ROBERT T. EGLET, ESQ., MARK FIERRO, JULIO GARIA, M.D., JESSICA GOODEY, ESQ., PAUL JANDA, D.O., ADAM KEMPER, ESQ., KYLE LUM, VALERIE MILLER, THEODORE PARKER, ESQ., MARYAM RASTKERDAR, STAN SMITH, PHD., JOHN TIPPINS

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LETTER FROM

THE EDITOR IN CHIEF Preston P. Rezaee, Esq.

I have searched long and hard for an articulate, intelligible and

legitimate justification for people’s emphatic endorsement of Donald Trump, or categorical denunciation of Hillary Clinton.

Sure, it’s simple enough to find justification for one’s opinion as an afterthought. However, most people premise their political posture on nothing more than feelings propagated by the undue influence of the media. Unfortunately, those individuals who lack basic understanding of our system of government to fully appreciate the role of the president make up the majority of the voting bloc. Undoubtedly, subscribers to VLM are more educated, and better informed, to form an opinion regarding these issues.

Regardless of one’s political affiliation, we must not forget to exercise one of the most fundamental rights assumed under the U.S. Constitution—the right to vote. So whether you thought A Political Revolution Was Coming; Felt the Bern; Hoped for Higher Ground; wanted to Defeat the Washington Machine; you believed in People Over Politics; you wanted to Make America Great Again; or if you just wanted to say, “Jeb!” … if nothing else, you must exercise your right to Rock the Vote.

Vegas Legal Magazine Fall 2016 | Pg. 5

RANGE ROVER:

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LETTER FROM

THE PUBLISHER Tyler Morgan, Esq.

The amount: $135 million. That’s what the State of Colorado made in taxes and

fees from marijuana sales last year. This November, we have a chance to take advantage of that kind of revenue when we cast our votes to legalize the recreational use of marijuana in Nevada. Question 2 on the ballot this November will propose regulating marijuana in the same manner as alcohol, in that those age 21 and older may carry one ounce or less of marijuana for recreational use. More importantly, Nevada will impose a 15 percent tax on all sales to raise funds for the improvement of our public education system—smaller classes, better pay for teachers and more funding for materials and programs. Aside from improving our schools, our state will also be saving millions in marijuana drug enforcement each year.

Personally, I don’t use marijuana. That’s just my choice. But, I don’t condemn its use.

In fact, I have spent a lot of time learning about its medical benefits and if it can fight illnesses such as cancer, then I’m all for it. I am even more in favor of it sending more kids to college and improving our school system.

Currently, Nevada ranks at the bottom in the nation in high school graduation rates. We are also facing so much overcrowding in schools, it’s leading us to face a voucher system that, if implemented, may guarantee our state’s ranking staying at the bottom. (In case you were unaware, lobbyists are on the brink of passing a voucher system to provide funds to families who pull their children out of public schools, and place them into private schools. And no, it’s not on an individual needs basis. But, it is an unfortunate decision brought on by inadequate funding.)

Education is vital to the growth of our state. We need more schools, and more focus on ensuring they are run properly. The funds raised by taxing marijuana is a step toward better educating our kids. Admittedly, I worry how the funds may actually be utilized; but I cannot deny our children the potential funding this law may provide. Voting “yes” this November will be a step, and I pray it’s a large step toward revitalizing our school system, and giving our children a better future.

Let’s vote to get high…on test scores.

Vegas Legal Magazine Fall 2016 | Pg. 7

WHO’S STILL STANDING, SITTING OR OTHERWISE? A Brief Update On The Las Vegas Justice Court Election Results.

– By Jessica Goodey, Esq.

It seems like no matter where you go, you cannot escape news of the elec-

tion. It’s a presidential election year, which always makes for some interesting discussions around the office. Don’t worry though: This isn’t going to turn into a #TeamHillary or #TeamTrump thing. Let’s focus on the more local, albeit slightly less entertaining, Las Vegas Justice Court elections.

Nevada is one of 39 states that have some form of election for its trial court judges. Of course, there is much debate as to the merits of electing versus appointing judges, with impassioned arguments on both sides. Those arguments aside, it appears that most people focus on the District Court seats. Indeed, that’s where a lot of civil attorneys spend most of their practice…but that doesn’t mean the Justice Court seats should be overlooked.

The Justice Court is typically the first court with which most Nevadans come in to contact. It handles, among other things, DUIs and other misdemeanors; landlord/tenant cases; and all civil claims that do not exceed $10,000 in damages. However, beginning Jan. 1, 2017, the role of the Justice Courts will expand, as the Legislature recently increased the jurisdictional limit to all cases involving damages less than $15,000.1 Importantly, this $15,000 jurisdictional limit is exclusive of attorneys’ fees and costs, which are allowed as a matter of law to the prevailing party.2 Thus, it is anticipated a significant number of car-collision cases will soon be filed in Justice Court rather than District Court, as Justice Court will offer a more expedited resolution, with a jury trial held within 120 days.

In Justice Court, two of the seven seats up for re-election (of the 14 total Justice Court departments) had only two candidates in the race for that seat and therefore were not on the ballot in the primary: Department 7 (Judge Karen Bennett-Haron and Vincent Ginn) and Department 13 (Judge Suzan Baucum and Shana Bachman). These departments will be on the ballot for the General Election in November.

that new rule.

• In Department 6, Judge Bita Yeager faced Rebecca Kern and Jeff Rogan.

This was a close race with the votes being split nearly evenly three ways.

But, Yeager and Kern were able to pull ahead enough to move on to the General Election, amassing 37.79 percent and 31.28 percent of the votes respectively, while Rogan came in a close third with 30.93 percent.

• In Department 9, Judge Bonaventure procured 59.60 percent of the vote, securing his seat on the bench until the next election, handily defeating his challengers Steven Goldstein (18.62 percent) and Robert Kurth (21.78 percent).

Finally, in Department 14, Amy “JoAnne” Chelini also secured her seat on the bench, overwhelmingly defeating incumbent Judge Conrad Hafen (who you may remember from pre-election press regarding his handcuffing of a Public Defender). Chelini won 62.35 percent of the vote, while Hafen won 24.87 percent and the third challenger, Phung Jefferson, won 12.77 percent.

There can be no dispute that the Las Vegas Justice Court will be playing a larger role in the resolution of cases when the jurisdictional limit increases to $15,000, making the upcoming general election for the candidates in the remaining four departments that much more important. If you don’t know the candidates or who should get your vote, reach out to colleagues, go to one of the fundraisers or do some research online so you can make an educated vote. Since you never know when you will find yourself before one of those judges, do your part to make sure it’s a good one.

The remaining departments had three or more candidates: • In Department 3 (Judge Janiece Marshall, Sean Connell and Harmony Letizia), Marshall won 29.85 percent of the vote, narrowly defeating Connell who won 26 percent, and came in second place to Letizia who won 44.15 percent of the vote. Marshall and Letizia will face off in the General Election.

• In Department 4, incumbent Judgment Melissa Saragosa faced two challengers: Amber Candelaria and Jillian Prieto. Saragosa secured 58.97 percent of the vote, meaning she secured her seat on the bench based upon a newly enacted rule: Any Justice of the Peace candidate in a three-or-more person race who wins more than 50 percent of the vote wins the seat.3 Saragosa was one of three Justice of the Peace candidates to benefit from 1. NRS 4.370 (as amended by AB 66, effective January 1, 2017) 2. NRS 69.020, NRS 69.030; Royal Ins. V. Eagle Valley Construction, Inc., 110 Nev. 119 (1994).

3. NRS 293.260(5) (amended by SB 5 in 2015).

Vegas Legal Magazine Fall 2016 | Pg. 8

Jessica M. Goodey, Esq., is a partner at Becker Goodey, where she focuses primarily on personal injury and medical malpractice. Goodey is passionate about providing her clients with individualized and committed representation from start to finish. She recognizes the importance of her role in protecting her clients’ future and providing peace of mind.

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GETTING PAID

The Nevada Supreme Court Revisits Attorney Charging Liens & Interpleader Actions In Recent Decision – By J. Malcolm DeVoy, Esq.

The Nevada Supreme Court does look out for the state’s lawyers.

In its recent decision in Golightly & Vannah, PLLC v. TJ Allen, LLC, the Supreme Court provided more clarification about how attorneys can secure payment in their cases using the statutory attorney lien created by Nevada Revised Statutes (“NRS”) 18.015. 132 Nev. Adv. Rep. 41 (2016). It also provided important guidance that can streamline interpleader actions that are required when people who are entitled to recovery from funds obtained in a case cannot agree on their distribution.

To appreciate the significance of the Golightly decision, though, some background is necessary on attorneys’ liens in Nevada, and the Supreme Court’s treatment of them.

In 2001, the Nevada Supreme Court decided that attorney liens have precedence over medical liens, and attorney liens are not subject to distribution on a pro rata basis in the event of a dispute among lienholders. Michel v. Eighth Jud. Dist. Ct., 117 Nev. 145, 150-151, 17 P.3d 1003, 1007 (2001). Because of the power of attorneys’ liens created under NRS 18.015—commonly known as “charging liens,” which are distinct from common law retaining liens that an attorney maintains over a client’s files until paid—the Nevada Supreme Court has had to frequently address the issue.

Since the mid-2000s, the Nevada Supreme Court has issued a string of decisions addressing how charging liens should be deployed. By way of example, the Supreme Court has had to:

Vegas Legal Magazine Fall 2016 | Pg. 13

Getting Paid • clarify what property, such as retirement accounts, is exempt from being applied toward a charging lien, Bero-Wachs v. Law Office of Logar & Pulver, 123 Nev. 71, 157 P.3d 704 (2007); • clarify the procedure for adjudicating a law firm’s rights under a charging lien, Argentena Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 216 P.3d 779 (2009); how to interpret the notice requirements for perfecting a lien under NRS 18.015, Leventhal v. Black & LoBello, 129 Nev. Adv. Rep. 50, 305 P.3d 907 (2013); and, • clarify that attorneys who worked on the case before obtaining recovery are entitled to assert a charging lien on any settlement, verdict, or other award, McDonald Carano Wilson LLP v. Bourassa Law Grp., LLC, 131 Nev. Adv. Rep. 90, 362 P.3d 89 (2015). (This is a frequent issue in the Nevada Supreme Court’s relatively austere number of reported decisions.)

In Golightly, the Supreme Court revisited some of the ground it tread in Leventhal. Because NRS 18.015’s lien in favor of attorneys is so powerful and jumps the line over medical providers, the Supreme Court has construed its procedural requirements very strictly. The Golightly decision reminds attorneys that NRS 18.015’s provisions are not self-executing, must be completed within the time provided in the statute and in the manner prescribed, and only apply to recovery obtained after the charging lien properly is asserted.

The Supreme Court did allow some daylight in its otherwise strict interpretation of NRS 18.015, though: NRS 18.015(3)’s requirement to “stat[e] the amount of the lien” to be effective does not necessarily require a specific dollar amount. By the Supreme Court’s own admission, calculating this amount in contingency cases is impossible, especially when the value of the verdict and final costs needed to obtain it are unknown at the time of providing notice of the lien.

The Nevada Supreme Court also gave another gift to attorneys in the Golightly decision by no longer requiring interpleader funds to be deposited with the Court under Nevada Rule of Civil Procedure 22. This is a retreat from the Supreme Court’s 2001 position

Vegas Legal Magazine Fall 2016 | Pg. 14

in Michel, where it held that, “the disputed funds must be tendered to the court in their entirety.” 117 Nev. at 151, 17 P.3d at 1007 (emphasis added). Relying on precedent from the United States Court of Appeals for the Ninth Circuit, which held that depositing funds with the court is not necessary in interpleader actions brought only under Federal Rule of Civil Procedure 22, the Nevada Supreme Court used Golightly to clarify that an attorney can hold the funds in his or her own trust account until the court deciding the interpleader action directs their release.

The benefits of this clarification are marked for attorneys who regularly face interpleader actions. First, the cumbersome and sometimes delayed process of receiving funds from the court is eliminated. The attorney can unambiguously maintain the disputed funds in trust and release them only once the competing claims to the money are adjudicated. Second, it prevents opponents from claiming that the attorney holding the funds has somehow taken them hostage, or unilaterally taken control of them. So long as the funds remain in trust, the Nevada Supreme Court has determined that it is an appropriate place for disputed funds to remain until a court decides the competing claims upon the money.

While Golightly is something of a mixed bag, it reminds attorneys of the need for strict compliance with NRS 18.015. The decision also confirms best practices for asserting charging liens, and provides new guidance to streamline interpleader actions. Based on the frequency with which the Nevada Supreme Court publishes decisions addressing NRS 18.015, it appears that Nevada’s highest court is particularly mindful of its main constituents’ needs.

J. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, the Stark Law, and the Anti-Kickback Statute.

AGE-DATING DISC INJURY:

Herniations, Bulges, Ligament Damage, and Causally Relating Traumatic Disc & Ligaments: –By: Kenneth M. Bahoora D.C., P.C.

W hen considering disc pathology, one of the most-asked questions is, “How do you determine causality and age-date the lesion?” Medical literature has purposefully avoided answering this type of question to apparently avoid any appearance of pandering to the medical-legal community, as evidenced by Fardone and Milette (2001) reporting, “The term herniated disc does not infer knowledge of cause, relation to injury or activity, concordance with symptoms, or need for treatment” (p. E108).

Yet 14 years later, upon further evidence, Fardon et al. (2014) reported the following: The category of trauma includes disruption of the disc associated with physical and/ or imaging evidence of violent fracture and/or dislocation and does not include repetitive injury, contribution of less than violent trauma to the degenerative process, fragmentation of the ring apophasis in conjunction with disc herniation, or disc abnormalities in association with degenerative subluxations. Whether or not a ‘less than violent’ injury has contributed to or been superimposed on a degenerative change is a clinical judgment that cannot be made on the basis of images alone; therefore, from the standpoint of description of images, such discs, in the absence of significant imaging evidence of associated violent injury, should be classified as degeneration rather than trauma. (p. 2531) As described by Fardone above, the definition and understanding of “violent injury” becomes an important arbiter in determining causality and lends an important understanding to age-date the herniation and/or bulge. In understanding the nature of Fardone’s tag of “violent,” science gives us answers rather than intuitive perceptions or rhetoric, and the quantification of energy transferences to victims in accidents gives us those answers.

The rate of change in speed (“acceleration,” or “ΔV”) of any free-moving body is what contributes to quantifying energy transfer and can be directly correlated to injury. Brault, Wheeler and Siegmund (1998) reported that in rear-end collision testing, it was determined whiplash could occur with a change in speed as low as 2.49 mph ΔV where there was no visual damage to the automobile.

Krafft, et al. (2002) reported symptoms at a ΔV of 12.5 km (7.77 mph) and an injury mean threshold of 4.2 g-force for males and a ΔV of 9.6 km (5.97 mph) with a mean of 3.6 g-force for females. Using this data, a corresponding window of time can be calculated between .084 seconds for males and .080 seconds for females (verifying that females are more at risk than males), resulting in a mean of .082 seconds. As evidenced above, acceleration (ΔV) is important as it is part of the physics determining g-force that explains injury thresholds and gives a numerical value to Fardone, et al.’s (2014) use of the descriptor “violent injury.”

The risk for injury is present in a vehicle no matter the initial speeds or damage to the protective equipment, as transference of force is the prime factor in accidents.

Additionally, low-speed collisions have a history of little to no damage; therefore,

Vegas Legal Magazine Fall 2016 | Pg. 16

little or no energy is absorbed by the safety equipment and design of the vehicles, yet the occupant is subject to this force even with safety restraints. Because of these factors, only a few pieces of information are needed to quantify the energy transfer an occupant is subjected to: • The SPEED just before the collision of each vehicle involved.

• The WEIGHT of each vehicle and its occupants.

• The TIME (t) involved (in the case of the above example…082 seconds) Here are two examples: Example A: A 6,100-pound SUV traveling at 7 mph rear-ends a 4,200-pound car stopped at a red light, and the SUV stops as a result of the collision. The car (and its occupants) will experience a resultant ΔV of 10.67 mph (…which is not to be confused with the speed of the bullet vehicle that struck the target vehicle).

Example B: A 30,000-pound truck and trailer backing up at 2 mph backs into the rear of a 4,800-pound occupied parked van, and the truck stops as a result of the collision. The van (and its occupants) will experience a ΔV of 12.5 mph.

Regarding the Krafft, et al. (2002) tables 1-4 (pg. 3): In both examples above, the acceleration threshold for injury of males and females was exceeded. Both collisions would be traditionally classified as low speed with potentially no deformity of the vehicles.

(Just to underscore the injury potential at low speeds, the second example occurred at 2 mph where the physics of the crash offered demonstrable evidence of threshold forces sufficient to cause bodily injury.)

Because Fardone et. al. (2014) uses the word “violent” with no qualifying parameters, the above examples offer insight through science on how transferred forces impact the human body with a predictable threshold for injury. Since the word “violent” is a subjective descriptor, one must utilize science and not consider generalities as illustrated by the low speed examples above.

Del Grande, Maus and Carrino (2012) reported, importantly, that although there were varying reports of asymptomatic herniations in the literature, only a post-traumatic finding of radicular, or nerve root, pain can be definitive for determining causality.

Del Grande, Maus and Carrino (2012) wrote: Only a close concordance, a key in lock fit, of an imaging finding and an individual

patient’s pain syndrome can suggest causation, which further implies that the imager must know the nature of a radicular pain syndrome if he/she is to suggest a causal lesion. Close communication between clinician and imager via the medical record, an intake document at the imaging site detailing the pain syndrome, or direct patient interview by the imager is necessary. (p. 640) Therefore, it is critical to ensure that patients have a complete history taken and an examination performed by a credentialed health care provider that is trained in trauma care. Many practitioners are licensed to treat the trauma case, but many are ill equipped in training and experience to ensure an accurate diagnosis and determine proper relationship to causality.

Beyond radiating symptomatology, although as Del Grande, Maus and Carrino (2012) have reported as an accepted parameter for determining herniation causality, it is important to realize that radiating clinical symptoms arising from an injury to an intervertebral disc are dependent on the anatomical positioning of the injured and inflamed disc material. It is only when the disc herniation is of a lateralized nature that the segmental nerve root is compressed or inflamed, producing radiation of axial symptoms to the corresponding upper or lower extremity. To discuss radiation as a primary indicator of acute traumatic injury to the intervertebral disc omits central disc herniations, which in and of itself do not typically produce extremity symptomology. When it comes to acute injury in the absence of radiating symptoms, local symptomatology should also be considered in approaching a mechanism and timing of the injury. Furthermore, one must also look at the morphology or architecture of the individual vertebrae as demonstrative evidence to age-date disc pathology inclusive of both herniations and traumatically induced, directional, non-diffuse bulges, as described by Fardon et al. (2014).

This is Wolf ’s Law, as described by Isaacson and Bloebaum (2010): “Physical forces exerted on a bone alter bone architecture and is a well-established principle.…”(p.

1271). This has been understood and accepted as a general principle since the late 1800s and has been verified through the past century’s research, inclusive of contemporary research. Simply put, if a bone has abnormal stresses, it will change morphology or shape within expected parameters. Since these changes are “expected,” the question becomes, “How does Wolf ’s Law apply to traumatic external forces and acute disc injury and how does this relate to causality?”

In order to fully understand the process, it is critical to understand the biochemical reaction (functional adaptation) that occurs with abnormal stresses on bone, which centers on bioelectric changes that occur at the cellular level.

According to Issacson and Bloebaum (2010), when tissue is damaged, the injury potential creates steady, local electric fields that result from ion flux (positive and negative charges moving through local cellar membranes) that are an integral part in the regeneration/remodeling of bony tissue. Bone remodeling is a tightly coupled functional system and is strongly influenced by age, activity level and mechanical loading. This functional adaptation of bone demonstrates the unique ability of bone to alter its trabecular (structural bone tissue) orientation as a result of loading conditions. According to Frost (1994), bone remodeling is a direct response to mechanical influences and strains on the osseous system. This can occur as a normal process to strengthen bone, or as a response to altered anatomy, biomechanics or direct traumatic injury. Since this is a predicable scenario, we can identify specific factors that will help us to determine whether the response was present over time or is at the beginning phase of remodeling. That is the fundamental basis for putting a causally related date to the injury.

Isaacson and Bloebaum (2010) note that in regard to the remodeling of bone, the successful growth of additional supporting bone results from a combination of competent mechanical strain stimuli and endogenous electrical currents (bio-electrical changes). Simply put, it is the mechanical stresses and the flow of the bioelectric compounds that work in conjunction with one another to strengthen or produce additional bone to functionally “buttress” the joint segment. The above mentioned endogenous electrical current/bioelectrical changes are more commonly known as the “piezoelectricity,” or the body’s electrical reaction to pressure or mechanical stress. It is this electrically and mechanical-based system that subsequently controls osteogenic (osteo=bone; genic=to create) activity. The amplitude or amount of electrical potential is dependent upon on the magnitude of the mechanical bone loading, while polarity (meaning, the application of the bioelectric charge) was determined by the direction of the deformed bone. Isaacson and Bloebaum (2010) reported, “The specific loading pattern of bone has been documented

AGE-DATING DISC INJURY as an important piezoelectric parameter since potential differences in bone have been known to be caused by charge displacement during the deformation period” (p. 1271). What this means is that application of Wolf ’s Law to a bony segment is dependent on the amount of mechanical stresses as well as the direction of those forces, and is therefore based on basic engineering principles in the body. The extent and direction of the bone’s response to these forces is predictable and expected.

Additionally, Isaacson and Bloebaum (2010) noted that increased pressure surround the bone inhibits specific hormones preventing the uptake of calcium in the blood…which, in turn, results in the additional uptake of calcium within bone itself, causing additional bone to be produced.

Now that we understand what is happening from a physiological perspective when the bone responds to normal or abnormal mechanical stresses, the aging processes, or an acute traumatic injury, the question becomes, “Can we objectively predict this process in the human spine?”

He and Xinghua (2006) studied the predictability of bone remodeling, which included both the external shape and internal bone density distribution. They extended the simulation of the external shape of bones to determine and to predict pathological changes in bone: specifically, the osteophyte on the edge of a bone structure. They reported, “The significance of this work were [sic]: (1) it confirmed that osteophyte formation was an adaptive process in response to the change of mechanical environment, which can be simulated numerically by combining quantitative bone remodeling theory with finite element method; and (2) it can help to better understand the relationship between bone morphological abnormity and the mechanical environment.” (p. 96) He and Xinghua (2006) also reported that with load-bearing bones such as the femur and vertebrae, mechanical factors are crucial to the morphology and changes in boney structures that relate closely to changes in mechanical environments. In addition, changes in bone structure morphology are slowly progressing processes unless other factors such as trauma or inflammation are included, at which time the processes will be accelerated to change the bone structural morphology. What that means is that there is a “genetic timing” to the remodeling process that can be altered (increased) by the presence of specific conditions such as an acute injury or inflammation.

According to He and Xinghua (2006), when only the local mechanical environment changes or a directional change in force coefficients is present, then only part of the vertebrae will remodel leaving the rest of the vertebrate unchanged.

Meaning, if there is a one-sided lesion creating pressure unilaterally, only that side of the disc will create an osteophyte. This is very similar to the formation of a callus on your hand or foot. “In this paper, the main pathology of osteophyte formation was associated with the structural deterioration of intervertebral disc.” (He and Xinghua, 2006, p. 97) These researchers further discuss that the remodeling process will continue until the biomechanical failure is resolved and the body has reached a biomechanical equilibrium by placing an osteophyte on the edge of the vertebrae, one whose size and strength is based upon the influencing mechanical imbalance. They concluded that only the bone in the area of mechanical imbalance would be compromised.

Although individuals have different formation rates and the osteophytes may vary in size, everyone is subject to morphological changes depending upon mechanical imbalances in the spine. He and Xinghua (2006) concluded that, “…it will actually take about more than half a year to observe the bone morphological changes…” (p.

101). This indicates that it takes approximately 6 months for an osteophyte to be a demonstrable post-mechanical failure or imbalance. This again gives a time frame to better understand if pathology of the intervertebral disc has been present for a long period of time (pre-existing) or has been produced as the direct result of the specific traumatic event by lack of the existence of an osteophyte, meaning the disc pathology is less than 6 months in duration.

Vegas Legal Magazine Fall 2016 | Pg. 17

In conclusion, we would like to remind you readers that, by definition, a disc is a ligament, connecting a bone to a bone, and it has the structural responsibility to the vertebrate above and below to keep the spinal system in equilibrium. Damage to the disc through a tear (herniation or annular fissure) or a directional, non-diffuse bulge will create abnormal load-bearing or biomechanical failure on the side of the disc lesion. Since we have previously defined the term “violent trauma” as not being dependent upon the amount of damage done to those structures either around or containing the victim, and we have determined there were ample force coefficients to produce injury to the spine, then based upon the current literature, we can now accurately predict in a demonstrable manner the timing of causality of the disc lesion. This is both based upon the symptomatology of the patient and/ or the morphology of the vertebral structure and is a subject that can no longer be based upon rhetoric.

Now we will discuss how spinal experts document causality with disc and ligament injuries….

“The clinical presentation is a disc bulge in their neck and some arthritis, so their neck symptoms are not related to the crash. There is a low back herniation but lots of people have those and don’t have pain. It is our opinion it was there before the crash.”

That statement from an adjuster is an argument that has been made for years, allowing insurance companies to inappropriately reduce settlements to their clients based on the client’s inability to prove when or how their injury really occurred. To factually counter this type of statement, one must use imaging and age dating, with an understanding of biomechanics, in order to demonstrably discuss causality. Without medical experts utilizing the current medical and academic research available, it will continue to be difficult for any argument to be made explaining the nature and long-term effects of these injuries based on scientific fact vs. rhetoric Imaging of the spine is critically important in all cases of injured clients. In traumatic cases, imaging is necessary for diagnosis, triage and proper co-management of bodily injuries. Imaging needs to be performed as per the current academic and contemporary medical/chiropractic standards to ensure an accurate diagnosis. The most common injuries in car accidents are spinal related, and the basic imaging available includes x-rays, CAT scans and magnetic resonance imaging (MRI), allowing medical providers to make an accurate diagnosis, when clinically indicated.

Every medical provider in Colorado, from MD to DO to DC—for diagnosis/ prognosis purposes—has a license to see and treat car related injuries. However, a “license” is not the same as “specialization.” By way of illustration, although psychiatrists are MDs and might have a license to do heart surgery, it would not be in the best interest of the patient. Nor would I go to a spine surgeon for psychological concerns even though they are fully licensed to treat medical conditions. In spinal trauma, certain providers specialize in connective tissue injuries of the spine, allowing us to go one step further in diagnosis, prognosis and management…including “age-dating” these commonly found disc and ligament injuries.

To understand age dating, one needs to have a basic medical understanding of anatomy and physiology, as well as what tissue is commonly injured and the probable “pain generator.” Since neck injuries are the most common injuries seen in car crashes, cervical spinal joints will be our focus. Related to anatomy, every set of two vertebrae in the neck is connected with three joints: one disc and two facet joints. These joints allow for normal movement of the spine (mobility). Additionally, there are multiple ligaments that hold these joints together and are responsible for stability. The proper balance of mobility and stability is critical when looking at the biomechanical part of patient’s injuries…meaning that too much or too little movement in spinal joints can cause pain, secondary to damaged tissue. The tissue most commonly injured in a car crash is muscle/tendon, ligament, disc, facet, and nerve. Spinal cord and bone injuries also occur although less frequently. To determine causality, the provider should comment on what tissue is injured, and also use imaging to help determine when this injury occurred (i.e., age-dating).

There are two basic problems that must be addressed. Fardon and Milette (2001) reported, “The term ‘herniated disc’ does not infer knowledge of cause, relation to injury or activity, concordance with symptoms, or need for treatment” (p. E108).

Simply having the presence of a disc herniation, without a physical exam or without proper symptom documentation, does not allow one to comment on the cause of the injury. In a rear-impact collision for example, even when the diagnosis is confirmed, additional criteria need to be met to answer the question, “Was there

Vegas Legal Magazine Fall 2016 | Pg. 18

enough force generated into the vehicle and the occupant to cause the cervical/ lumbar herniation?” Fardon, in a follow-up study (2014) reported that disc injury “in the absence of significant imaging evidence of associated violent injury, should be classified as degeneration rather than trauma” (p. 2531). So, we must more objectively define the subjective connotations of “violent injury” and address the issue of “degeneration rather than trauma.” Although this statement can often be misleading, it gives the trauma-trained expert doctor a basis in going forward, understanding that every patient’s physiology is unique and not subject to rhetoric, but clinical findings.

Violent injury to the occupant can occur when there are sudden acceleration and deceleration forces (g-force) generated to the head and neck that overwhelm connective tissue or bring them past their physiological limit. To determine the acceleration force, “delta V” (ΔV as it appears in equations) is used. Delta V is the change in velocity of the occupant vehicle when it is hit from behind (i.e., going from a stopped position to seven miles per hour in 0.5 seconds due to forces transferred from the “bullet” vehicle to the “target” vehicle). Using these data, research allows us to make specific comments related to violent injury. For the purpose of this article, we are oversimplifying because the cervical spine is exposed to compression, tension and shearing forces. In addition to g-force and the elastic nature of most rear impact crashes makes it nearly impossible to find a true minimum threshold for injury although the literature has given us many examples of lowspeed crashes that are dependent not simply on speed, but the mass (weight) of the subject vehicles. Each person’s susceptibility to injury is unique. As stated previously, while g-force alone isn’t insufficient to predict injury, Krafft, et al. (2002) reported that in low-speed collisions there is an injury threshold of 4.2 g-force for males and 3.6 g-force for females. Krafft’s research is unique in that she has access to insurance data that is inaccessible to most researchers. Panjabi (2004) showed that forces as low as 3.5 g-force impacts would cause damage to the front of the disc, and 6.5 g-force and 8 g-force impacts would cause disc damage posteriorly where the neurological elements are.

A spinal biomechanical expert can then look for conclusive evidence by age-dating disc and joint pathology, based on two phenomena. First, it is well known that the body is electric. When an electromyography exam (EMG) is performed, we are measuring electrical activity along nerves to diagnose radiculopathy, which is nerve damage. Second, there are also normal bioelectrical fields in all tissue, known aspiezoelectricity. When an injury occurs, this normal electrical field is disrupted, and as previously stated, in the case of spinal joints, calcium is drawn into the damaged tissue creating bone spurs. Issacson and Bloebaum (2010) reported, “The specific loading pattern of bone has been documented as an important piezoelectric parameter since potential differences in bone have been known to be caused by charge displacement during the deformation period” (p. 1271). Fortunately for the patient, we are able to tell how much of this process has occurred either before or after their crash, specifically when we take into account the soft tissue damage seen and evidence of bone/calcium deposition.

Additionally, the body begins a healing process that includes regeneration and remodeling of both soft and hard tissue as reported by Issacson and Bloebaum (2010). Spinal vertebrae have a unique structure of bone that allows it to adapt to abnormal mobility and stability (injury) by changing shape, which can be seen on radiographs or MRIs. Furthermore, the bone will change shape according to predictable patterns based on the increased pressure or load that it undergoes post-injury. Issacson and Bloebaum stated that, “Physical forces exerted on a bone alter bone architecture and is a well-established principle…” (p. 1271). This again is known as Wolff ’s Law, first established in the 1800s. Since we know what “normal” is, when we see “abnormal” findings due to mechanical stress we can broach the topic of an acute injury versus a degenerative process causing the abnormality and make specific medical predictions accordingly.

He and Xinghua (2006) studied the predictability of this bone-remodeling process and were able to make predictions of pathological changes that will occur in bone, specifically the osteophyte (bone spur) on the edge of a bone structure.

Significantly, they noted their findings “confirmed that osteophyte formation was an adaptive process in response to the change of mechanical environment.” They noted that mechanical factors are crucial to the morphology of bones, notably load-bearing bones such as the femur and vertebrae.

For readers familiar with current medical and academic accepted nomenclature for disc damage, recognized by the combined task forces of the North American

Spine Society (NASS), the American Society of Spine Radiology (ASSR) and the American Society of Neuroradiology (ASNR), disc herniations must have a directional component. When this occurs, the abnormal and additional pressure at the level of the disc damage matched with the direction of the herniation will cause only that part of the vertebrae to remodel.

AGE-DATING DISC INJURY

Thus, if there is a C5/6 right-sided herniation (protrusion/extrusion) secondary to a cervical acceleration/deceleration injury, then only that side of the vertebrae will change shape, creating an osteophyte. This compounded loading on the facet joint additionally causes facet arthritis. This process is similar to the formation of a callous on your hand or foot: The callous is a known and expected tissue response to increased load/friction exposure. Similarly, an osteophyte is a known and expected bone response to an increase in load/friction exposure.

At a basic level, the body has an electrical and mechanical response to injury resulting in additional stress that causes calcium (bone) to flow into the area of injury to further support the joint. The joint then abnormally grows, creating a pathology called hypertrophy, degeneration, disc osteophyte complex, or arthritis/arthropathy, common terms seen in radiology and doctor’s reports.

Everyone is subject to these morphological (structural) changes, which are always and predictably dependent on mechanical imbalances in the spine. Remember from the previous discussion, He and Xinghua (2006) concluded that, “…it will actually take about more than half a year to observe the bone morphological changes…” (p. 101). This indicates that it takes approximately six months for an osteophyte (bone spur) to be demonstrable post-mechanical failure or imbalance.

This again provides a time frame to better understand if pathology of the intervertebral disc has been present for a long period of time (pre-existing) or has been produced as the direct result of the specific traumatic event by lack of the existence of an osteophyte, meaning the disc pathology is less than 6 months old, dependent on location and direction of the pathology.

In conclusion, that by definition, a disc is a ligament connecting a bone to a bone and it has the structural responsibility to the vertebrae above and below to keep the spinal system in equilibrium. Damage to the disc due to a tear (whether a herniation or an annular fissure) or a bulge will create abnormal load-bearing forces at the injury site. These present differently depending on [1] if traumatic, as biomechanical failure on the side of the disc lesion, or [2] if age related, as a general complex. Since other research and human subject crash testing have defined the term “violent trauma” as not being dependent upon the amount of damage done to the vehicle but rather to the forces to which the head and neck are exposed, we can now accurately predict in a demonstrable manner the timing of causality of the disc lesion. This is based upon the symptomatology of the patient and/or the morphology of the vertebral structure and is a subject that can no longer be based upon mere rhetoric or speculation.

Kenneth Bahoora, DC, PC, has been a treating physician in Nevada for 17 years. He graduated from Life University in Atlanta, Georgia, where he received his Ph.D., in chiropractic care. He is credentialed and received specialized knowledge in accident reconstruction, spinal biomechanical engineering, spinal MRI interpretation, MRI physics, providing impairment ratings utilizing AMA Guides 5th & 6th Edition, examining and triaging the trauma patient and neurodiagnostic interpretation protocols. He lectures to doctors and the legal community on subjects including but not limited to trauma and injury protocols, crash dynamics and the trauma victim. He can be reached for further explanation at kmbdc@elitechiro.net or at 702-204-4240.

References: Fardon, D. F., & Milette, P. C. (2001). Nomenclature and classification of lumbar disc pathology: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 26(5), E93–E113.

Fardon, D. F., Williams, A. L., Dohring, E. J., Murtagh, F. R., Rothman, S. L. G., & Sze, G. K. (2014). Lumbar Disc Nomenclature: Version 2.0: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 14(11), 2525-2545.

Brault J. R., Wheeler J. B., Siegmund, G. P., & Brault, E. J. (1998). Clinical response of human subjects to rear-end automobile collisions. Archives of Physical Medicine and Rehabilitation, 79(1), 72-80.

Krafft, M., Kullgren, A., Malm, S., and Ydenius, A. (2002). Influence of crash severity on various whiplash injury symptoms: A study based on real life rear end crashes with recorded crash pulses. In Proc.

19th Int. Techn. Conf. on ESV, Paper No. 05-0363, 1-7.

Del Grande F., Maus T. P., & Carrino J. A. (2012). Imaging the intervertebral disc: Age-related changes, herniations and radicular pain. Radiological Clinic of North America 50(4), 629-649.

Issacson, B. M., & Bloebaum, R. D. (2010). Bone electricity: What have we learned in the past 160 years? Journal of Biomedical Research, 95A(4), 1270-1279.

Frost, H. M. (1994). Wolff ’s Law and bone’s structural adaptations to mechanical usage: an overview for clinicians. The Angle Orthodontist, 64(3), 175-188.

He, G., & Xinghua, Z. (2006). The numerical simulation of osteophyte formation on the edge of the vertebral body using quantitative bone remodeling theory. Joint Bone Spine 73(1), 95-101.

Fardon, D. F., & Milette, P. C. (2001). Nomenclature and classification of lumbar disc pathology: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 26(5), E93–E113.

Fardon, D. F., Williams, A. L., Dohring, E. J., Murtagh, F. R., Rothman, S. L. G., & Sze, G. K. (2014). Lumbar Disc Nomenclature: Version 2.0: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 14(11), 2525-2545.

Krafft, M., Kullgren, A., Malm, S., and Ydenius, A. (2002). Influence of crash severity on various whiplash injury symptoms: A study based on real life rear end crashes with recorded crash pulses. In Proc.

19th Int. Techn. Conf. on ESV, Paper No. 05-0363, 1-7.

Batterman, S.D., Batterman, S.C. (2002). Delta-V, Spinal Trauma, and the Myth of the Minimal Damage Accident. Journal of Whiplash & Related Disorders, 1:1, 41-64.

Panjabi, M.M. et al. (2004). Injury Mechanisms of the Cervical Intervertebral Disc During Simulated Whiplash. Spine 29 (11): 1217-25.

Issacson, B. M., & Bloebaum, R. D. (2010). Bone electricity: What have we learned in the past 160 years? Journal of Biomedical Research, 95A(4), 1270-1279.

Studin, M., Peyster R., Owens W., Sundby P. (2016) Age dating disc injury: Herniations and bulges, Causally Relating Traumatic Discs.

Frost, H. M. (1994). Wolff ’s Law and bone’s structural adaptations to mechanical usage: an overview for clinicians. The Angle Orthodontist, 64(3), 175-188.

He, G., & Xinghua, Z. (2006). The numerical simulation of osteophyte formation on the edge of the vertebral body using quantitative bone remodeling theory. Joint Bone Spine 73(1), 95-101.

Vegas Legal Magazine Fall 2016 | Pg. 19

Let’s Restore CIVILITY & PROFESSIONALISM To The Practice Of Law –By Teddy Parker, Esq.

I was lucky enough to start my career with one of the largest and

most reputable Nevada firms in the early 1990s: Beckley, Singleton, DeLanoy, Jemison, and List. I was mentored by some of Las Vegas’ best lawyers, including Drake DeLanoy, Rex Jemison, Mitch Cobeaga, Robert Eglet, Judge “Betsy” Gonzalez, and Daniel Polsenberg.

These lawyers showed me that it was possible to aggressively represent clients while maintaining civility with opposing counsel. These lawyers also demonstrated that successful results can be obtained without sandbagging and personal attacks, and instead, through professional courtesies. These professional courtesies included but were not limited to extensions of discovery, continuances of hearings and/or the use of stipulations in lieu of heavy motion practice.

Informal agreements regularly sufficed, even absent confirming letters, because these lawyers knew and respected each other.

I took the values I learned at Beckley Singleton to heart and have always maintained civility and respect with opposing counsel. I understand that lawyers are subject to significant stress that requires them to make great compromises and sacrifices in their lives. With that understanding, I believe lawyers should still strive to maintain professionalism amongst each other. Although the demands of this career path are sometimes overwhelming, we should promote cooperation and respect in our professional lives. A good lawyer knows there is no positive correlation between obtaining the most favorable outcome for one’s client and the number of character assassinations you have fired at your opposing counsel. Indeed, more often than not, a lawyer’s failure to maintain professionalism ends up costing a client more money as additional time is spent filing unnecessary motions with issues that could be easily resolved through a stipulation or discovery extension. Often, judges are noticeably frustrated with lawyers who take valuable time and resources from the court because they choose to argue more about the conduct of their opposing counsel than the facts or law relevant to their cases.

However, a greater cost of failing to grant professional courtesies is that you will inevitably need one in return some day.

To be a good lawyer means to be a good person. A trite but relevant

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expression is, “A good person treats others the way they prefer to be treated.” The path to a more civilized and cooperative legal community requires each of us to extend professional courtesies, grant continuances, and make attempts to amicably resolve disputes before filing potentially unnecessary motions. This will undoubtedly result in a more collegial atmosphere.

Confirming letters are not required when litigating in any firm.

Our word is good and we extend professional courtesies. I challenge all Southern Nevada lawyers to raise the bar on professional courtesies.

Theodore “Teddy” Parker is a founding partner of Parker & Nelson Assoc. in Las Vegas, Nev., where he specializes in administrative law, banking law, business litigation, corporate law and structuring, construction contract and defect, employment and labor law, insurance defense, municipal law, medical malpractice, personal injury, premises liability, products liability, real estate law, and regulatory compliance. Learn more about him and his practice’s work at http://www.pnalaw.net.

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In Response To The Resurrection Of The American Trial Lawyer:

The Disappearance Of The Civil Jury Trial – By Robert T. Eglet, Esq.

The article I wrote for Vegas Legal Magazine’s spring issue—“Death of

the American Trial Lawyer”—resulted in a surprising yet encouraging response from readers, both locally and across the country. The publishers informed me that the article has been read online by more than 200,000 viewers, and I have received hundreds of emails from readers requesting more information about the danger that the disappearance of the civil jury trial poses to our justice system. More importantly, readers are asking if anything can be done to reverse this alarming trend.

Death of the American Trial Lawyer

In “Death of the American Trial Lawyer,” I briefly discussed the importance of the civil jury trial to the American justice system and documented the steep decline in the ratio and absolute number of civil cases resolved by jury trial over the past 80 years. In the 1930s, 20 percent of all civil cases in both Nevada and in the federal courts were resolved by jury trial. Today, the average number of civil cases concluded by a jury’s verdict is a quarter of a percent, and in some states it is effectively zero percent. I outlined the major causes of this decline as being Alternative Dispute Resolution (ADR), or what many legal scholars refer to as the privatization of the civil

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justice system; the exponential rise of litigation costs including out of control, and often unnecessary, pretrial discovery prompted by billable hour requirements; the adherence to a judicial philosophy that case settlement is better than trial, no matter the situation; the rise of case dismissals via summary judgment; federal pre-emption that guts an otherwise viable action; and, the biggest enemy of the American consumer: tort reform.

I suggested that one foreboding consequence of the threat of civil jury trial extinction is that experienced trial lawyers are quickly becoming relics of the past. The drastic reduction of civil jury trials, both in ratio and absolute number, has lead to a lack of understanding of the true settlement value of most cases. This, in turn, has led to a majority of cases settling for less than their true value, and resulting in injured victims losing hundreds of millions of dollars annually in lost compensation to which they are legally entitled. Further, the rapid decline of jury trials negatively effects our democratic form of government. The drastic reduction of civil jury trials ensures that a much smaller segment of the population has the opportunity to participate in jury service. Jury service is the only opportunity most citizens have to directly effect government decisions.

In this article, I outline generally the history and importance of the civil jury trial to Americans, and identify some solutions to revive it.

History and Importance of the American Civil Jury Trial

The civil jury trial has deep roots in our country. The American colonists, governed by English law, believed that trial by jury was a fundamental right, and one necessary to ensure a government by the people, for the people. The right to a jury trial in the administration of justice was considered to be indispensable by our nation’s founders and non-negotiable by the leaders of the American revolution. They believed that the right to trial by jury could be traced back in an “unbroken line” to chapter 39 of the Magna Carta, issued in 1215, which stated: “No free man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”

England’s repeated attempts to restrict the right to a jury trial in the colonies was a major grievance leading to the Revolutionary War. In nearly every major document and speech delivered before the revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. Included in the grievances against King George III listed in the Declaration of Independence was: “[D]epriving us, in many cases, the benefits of trial by jury.” The only other right eventually included in the Bill of Rights mentioned specifically in the Declaration of Independence was the prohibition against quartering troops.

The early state constitutional drafters considered the civil jury trial an important instrument for the protection of individual liberties. The Massachusetts Body of Liberties, enacted in 1641, was the first colonial charter to provide for civil and criminal jury trials by name. By contrast, this same chapter made no mention of free speech rights or freedom of the press, and secured freedom of religion for Christians only. The Bill of Rights in the 1776 Virginia constitution provides that: “[i]n controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” The constitution of Pennsylvania followed Virginia’s in affirming the right of trial by jury in civil cases: “[i]n controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be sacred.” The 1776 constitution of North Carolina, stated: “[i]n all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of people, and ought to remain sacred and inviolable.” Similar language is found in the constitutions of Vermont in 1777; Massachusetts in 1780; and New Hampshire in 1784.

The right to jury trial in criminal cases was secured by the framers when they incorporated it directly into the main body of the U.S. Constitution.

However, they did not provide for the right to civil jury trial, or any of the other individual liberties listed in the Bill of Rights. In fact, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. In 1791, during its first session, congress drafted the Bill of Rights, securing the right to civil jury trial in the 7th amendment.

The American system has always considered the civil jury a critical part of our democratic government because more than any other single institution, juries give citizens the opportunity to participate in government, which both educates and enhances their regard for the American system of justice. Jury service is the only place where average citizens can participate directly in government in a way that has a direct impact on events.

Civil jury verdicts are public, and they affect all interests of the community and represent the American idea of justice. Civil juries are often referred

CIVIL JURY TRIAL to as the “conscience of the community” and they stand as indispensable guardians over corporate negligence and corruption. Civil jury verdicts have led to significant improvements in the safety of consumer products, industrial machines and health care products. They have deterred arbitrary use of power by officials and employers, and the civil jury trial is often the only way for victims of civil rights violations to obtain justice.

It is well recognized that product manufacturers, hospitals, pharmaceutical companies, and other defendants in personal injury actions have redesigned products; improved medical care; and have taken other steps to improve or save lives following jury trials and verdicts.

In 2008, my firm and I took on a case with the intent of making far-reaching changes in the pharmaceutical and medical fields. Over 100 Las Vegas residents were infected with hepatitis C as a result of faulty injection practices fueled by the drug companies’ increasing profits at any costs attitude.

The drug companies knew the risk of hepatitis C transfer and notified the Federal Drug Administration (FDA) of such risks well before the Las Vegas outbreak; but to save money, packaged their drug in an unsafe and cheaper form. In 2010, the first of several Las Vegas civil jury trials ensued garnering a $505 million verdict for a headmaster and his wife of a prestigious local high school who contracted hepatitis C during an endoscopic procedure. The next verdict we obtained was for $183 million, and the verdict after that was obtained by another firm for just over $100 million.

Finally, during the last trial where we were convinced the verdict would be over $1 billion, (and we believe the defense attorneys were equally convinced), the cases were finally settled.

Those verdicts allowed the victims that my firm represented to receive the compensation they deserved. They also allowed other firms in our jurisdiction to obtain settlements higher than they would have, had these trials not occurred. It is well known in our community that the cases that settled early, before these verdicts, settled for significantly less. More importantly, injection practices were changed nationwide, in an attempt to prevent this type of outbreak from occurring, as it had on multiple prior occasions in other parts of the United States and around the world. I am confident these practices would not have changed without these jury trials and verdicts.

As you can see, the civil jury trial is more than a process for bringing a grievance to resolution. It is a pillar of our democracy necessary for the protection of individuals against tyranny, repression, and mayhem, and to deter such injustices in the future. Jurors do their duty with no further ambition that their decisions could result in some future advantage for themselves. Jurors come to court, deliberate, and go back to their homes and work better off for their service. In other words, the civil jury trial system cannot be bought. It is our purest form of justice.

Jurors differ from judges because of the values they bring to cases and the freedom they have to apply those values. And as former chief justice William Rehnquist aptly noted, the right to civil jury trial was guaranteed by our Bill of Rights “precisely because the framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign’s judges.”

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CIVIL JURY TRIAL In his book We The Judges, the late U.S. Supreme Court Justice William Douglas wrote: A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of 12 who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized. It is the one governmental agency that has no ambition…it is as human as the people who make it up. It is sometimes the victim of passions. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.

Juries have more latitude than judges to make difficult and unpopular decisions. They deliberate in secret, they don’t have to explain their decisions, and they are typically protected by rules which limit post-verdict interviews. Studies show that jurors uniformly rate both their experience and the jury system highly while citing their service as being a major and moving experience in their lives. While prospective jurors often grumble over their duty to serve, I am always amazed at how proud and grateful they are for having served.

When disputes are resolved without trial there is no public record, which allows wrongdoers to suppress information about dangerous products, defective drugs, negligent professionals, and other wrongdoing. The United States Supreme Court and constitutional scholars have repeatedly pointed out the right to civil jury trial was embraced by our nation’s founders not because juries were the most economical way of resolving disputes, but, far more fundamentally, because “in important instances…[A] jury would reach a result that the judge either could not or would not reach.” And as one commentator observed, “bringing the law to the people may not make it more just in all cases, but it will make it the law of the people, which is what it should be in a constitutional democracy.”

Thomas Jefferson recognized that a jury of our peers is the most effective check against state power and has been a cornerstone in our judicial system since our nation’s birth. It legitimizes the law by providing opportunities for citizens to validate civil statutes and common law, and to apply them to the facts of specific trials creating a common sense of justice.

Further, the United States Supreme Court has recognized in numerous decisions that the primary function of the jury system is to provide a check on official or arbitrary power.

A Call To Action The American public has remained largely silent over the disappearance of the civil jury trial. Do they not know they have this right, the importance of this right, or that it is presently on the endangered rights list? Tragically, there is scant public education about the history and importance of the civil jury trial to our democratic principals. Notwithstanding the historic and current importance of the civil jury trial, it is one of the least understood features of our judicial system.

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Legal education programs teach little about the civil jury institution. Even organizations committed to protecting the Bill of Rights exalt limited public support for our right to civil jury trials. Outside of the members of the bar, there are no programs or efforts to educate the public about the history and importance of the vanishing civil jury that I could find. The American public needs to be informed about this fundamental right and how it significantly enhances their ability to hold accountable institutions and individuals who misuse their power over other people.

In 2014, of the 29 states that reported, the ratio of civil jury trials to civil disposition ranged from a low of 0.06 percent to a high of only 0.55 percent. Today, the average ratio is 0.25 percent and the downward spiral is continuing toward zero. The decline of the civil jury trial should be a call to action for all of us who are concerned about the health of our democracy and the preservation of the 7th amendment.

Potential Solutions 1. Full-Court Funding Critical to resurrecting the American trial lawyer and the civil jury trial is ensuring that our courts are fully funded at both the federal and state levels. Court funding issues have clearly impacted and contributed to the decline of civil jury trials. We need more courtrooms and judges to preside over cases. While the number of jury trials has declined, the courts’ caseloads have significantly increased placing pressure on trial judges to move cases, resulting in those same judges pressuring litigants and their lawyers to resolve their disputes outside the courtroom and without a jury.

2. Removing All Penalties for Exercising the Right to Jury Trial If a party loses a jury trial, courts and legislation often impose penalties for such loss, including paying the opposing parties’ attorneys fees and costs. Any penalty imposed after a jury trial that would not be imposed as a result of a settlement of the case is a not-so-subtle infringement of our 7th amendment liberty. This applies to any loser-pay system, including the current offer of judgment rules provided for in the federal rules of civil procedure and in most state civil procedure rules or statutes.

Further, there should be no additional fee for a litigant to request a trial by jury. In many jurisdictions, including Nevada, a fee is required to request a jury trial. In my view, there should never be any financial cost to exercise a constitutional liberty.

3. Training and Mentoring Programs Experienced trial lawyers have a responsibility to raise the next generation of trial lawyers. As a result of the mentoring I received as a young lawyer from Mitch Cobeaga, Franny Forsman and Rex Jemison, I have been able to achieve the results I have as a trial lawyer. I believe my partner, Dennis Prince, would agree that his successes were launched, in part, because of our mentoring relationship over the years.

My first job as a lawyer was with a large defense firm. This was a wise route for any new lawyer that wanted to try cases, because at that time, insurance companies and institutional clients appreciated that to have an ongoing pool of experienced trial lawyers from which to chose to defend their interests, they needed to pay for the legal training of the young lawyers. They understood that for young lawyers to get the appropriate training, they needed to permit their defense firms to have both experienced lawyers and a young lawyers attend trials and pay for their time. This provided defense firms with the ability to train and mentor their associates into experienced

trial lawyers.

Somewhere along the way, insurance companies and institutional clients lost that foresight. Now, they refuse to pay for young, inexperienced lawyers to attend trial with experienced trial lawyers, eliminating their law firms’ ability to train the next generation of defense trial lawyers. Many large firms are not hiring lawyers right out of law school any longer, and instead, are making lateral hires of more experienced lawyers, compounding the problem of young lawyers not gaining any meaningful trial experience.

A number of states, including Nevada, have implemented mandatory mentoring programs because more and more new lawyers are not finding jobs with law firms that are able to provide them mentoring. Many new lawyers are being forced to go into private practice on their own (or with other recent graduates) with no experience. This, too, is compounding the problem of young lawyers obtaining trial experience. While these mentoring programs are a good start, they are not providing adequate training for new trial lawyers.

The answer may lie in the development of mentoring programs where the lawyer/students are assigned actual cases to litigate with more experienced trial lawyers. Florida has a program of this nature called Lawyers Advising Lawyers (LAL)— formerly SCOPE (Seek Counsel of Professional Experience). LAL provides assistance when a young attorney confronts a problem that is unusual, or when they are in an area of law unfamiliar to them.

LAL offers quick access by telephone to an attorney who has experience with and knowledge of the particular problem or area without charge.

Expounding upon this mentoring idea, I would suggest trial lawyers allow access to their trials to young, aspiring trial attorneys. A young lawyer might agree to assist in a trial to obtain the otherwise unobtainable trial experience at no out-of-pocket cost to the trial attorney. These cases could be managed at a low cost, if the experienced trial lawyers were willing to spend time teaching and mentoring inexperienced lawyers in exchange for these lawyers providing free legal work in their preparation and trial of cases. I understand the short-term financial burden this places on the young, aspiring lawyer who is working without pay; however, the experience obtained would set them up for their professional lifetime.

4. Limiting Discovery Discovery costs have become a substantial roadblock to civil cases being resolved by a jury. Nearly all information is now stored on computers, which has made discovery (or rather “e-discovery”), in many cases, prohibitively expensive. This is largely caused by the tactic of institutional clients engaging in “digital document dumps.” This tactic is routinely used when injured victims or their lawyers don’t have the resources—or the case does not warrant the resources—to mine these “dumps” for the kernels of information relevant to the case. Trial judges and discovery commissioners must have the discretion, and be willing, to limit this type of discovery and to prevent parties from engaging in abusive discovery tactics. Our federal and states’ supreme courts should consider amending their discovery rules to consider both the resources of the parties and the issues at stake, as well how the digital age has changed discovery, in determining the methods and scope of discovery.

CIVIL JURY TRIAL nary people—in order to drive them to settle their cases for much less than their true value—because the plaintiff or his or her lawyer cannot afford to hire superfluous rebuttal experts. Trial courts and discovery commissioners should have the discretion and authority to limit or not permit expert witnesses in these smaller cases.

6. Expanding the Short-Trial Program The short-trial program has proved to be quite effective in disposing of smaller cases in an efficient and more cost-effective manner. Short trials limit the trial time typically to one day and allocate specific time parameters to each party to present their case. This forces the parties to be more efficient by thinking carefully about how to allocate their limited time most effectively. Consideration should be given to expanding this program to include short trials with three- and five-day limitations. That would capture more cases that parties are not willing or able to try in one day, but would be able or willing to try with three-day or five-day time limitations.

I would argue that the number of jurors in the three- and five-day short trials should be increased to at least six, if not eight. Every study done on this issue shows that the larger the jury (up to 12), the better the decisions.

Of course, limiting discovery and the use of experts must be part of this program in order to reverse the decline of civil jury trials. Understand, however, there are cases that are just not appropriate for the short-trial program. The higher the case value, the less likely you should enter into a short-trial as a jury may equate less time addressing the case with a lower verdict.

7. Utilizing Justice Court During the 2015 session, Nevada’s state legislature increased the jurisdictional limit of justice court to $15,000. Nevada’s mandatory arbitration program does not apply to cases filed in justice court. Therefore, a case with a value of $15,000 or less can be tried in justice court without going through arbitration and then filing a trial de novo, which is required by the rules governing district court. Further, the award of costs and attorney fees for the prevailing party from a civil jury trial are mandatory in justice court. While, as I delineated above, I do not favor loser-pay sanctions, they do apply in justice court cases giving plaintiffs an incentive to file in justice court.

This article is continued on page 91

5. Limiting Experts Over the last two decades, experts have been routinely and unnecessarily used in lower value cases. This is now a common tactic used by insurance companies and institutional parties when they face lawsuits filed by ordi-

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LICENSE TO KILL

Our Nation’s (& Nevada’s) Struggle To Maintain Death Row. -By Tyler J. Morgan, Esq.

On a Wednesday night in 2006, at 8:59 p.m. in Carson City, Daryl

Mack laid alone on the execution table. As he prepared for his fate, he gave his last words, “Allah is great. Allah is great.” By 9:02 p.m., a combination of sodium thiopental, pavulon and potassium chloride had run through his veins and his final breaths were exhausted. He was officially pronounced dead by 9:06 p.m. For many, this was “justice served” for a man who brutally murdered two women.

But for many other Nevadans, feelings are different, and “justice served” doesn’t equate to execution. In fact, after tonight, the question seems to now be, “Will Nevada execute another inmate on death row again?”

Capital Punishment In The United States

Capital punishment has been a staple in the American justice system since our inception as a nation. Its purpose is simple: deterrence. If people know that heinous crimes come with a punishment of death, one would expect such crimes to diminish. However, to

the contrary evidence is stiff insufficient in proving it to be an actual deterrent of violent crime.

Capital punishment began with firing squads and hanging and eventually transitioned to other methods before evolving into the lethal injection we know today. The arguments, whether for or against it, have lasted centuries. It was banned by several states dating back to the beginning of the 20th century. Then, in 1972, executions were deemed unconstitutional in Furman v. Georgia, only to be re-constitutionalized in 1976 in Gregg v. Georgia. Today, with lobbying by groups such as the American Civil Liberties Union (ACLU), the chatter surrounding capital punishment has never been so profound.

The history of the American justice system adjusting the methods of execution is a direct response to the century-long arguments from advocates against the practice. It is the very fact that our naVegas Legal Magazine Fall 2016 | Pg.27

LICENSE TO KILL tion has continued to evolve the methods for executions through various means that proves society’s desire to find a so called “tolerable” means by which to execute the most monstrous of men.

In the 1920s, when the number of executions spiked, it was Nevada that pioneered a path to using gas chambers. The electric chair, now reserved as an alternative method to lethal injection, has been used since the late 1800s and was the preferred method used until the 1900s, when America embraced the lethal injection. (Something about the idea of frying flesh no longer sat well with the general public.)

All methods are worthy of criticism from a human rights, cruel-and-unusual-punishment standpoint, but why now are we showing so much distain for the lethal injection? It relates to our track record of executions. It is true we have successfully executed a lot of heinous criminals; however, what has been swept under the rug through the years are all the times our system has botched the process. Many of us detached from the topic see the lethal injection as a civilized way by which we rid the world of evil; but, the reality is the contrary. Today, our justice system is struggling to maintain capital punishment, and our very own state is currently building a new execution chamber in hopes of performing lethal injections and playing the role of grim reaper. It’s a role that, in the opinion of Chief Judge Alex Kozinski of the US Ninth Circuit Court of Appeals, lives up to its brutality.

“The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” Wood, III, v. Ryan, U.S. Ninth Circuit. (2014).

Cruel & Sometimes Horrific Punishment

When Daryl Mack was put to death on April 24, 2006, the process was swift. The same cannot be said for the approximate 150 victims of botched electrocutions or lethal injections. Enter Clayton Lockett. Last year, The Atlantic published the article, “The Cruel and Unusual Execution of Clayton Lockett,” and instantly, a spotlight was again placed on capital punishment. The issue wasn’t whether the condemning of criminals to death was necessarily right or wrong. The real issue was more simple: Do we know what the hell we are doing?

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In 2014, Lockett was placed on a gurney in an execution chamber in the Oklahoma State Penitentiary. He was prepared to die. What he wasn’t prepared for was the ineptitude of the personnel conducting the execution and an agonizing death. Over a dozen attempts were made to secure an IV, one of which was a failed attempt at the jugular vein. Finding a vein to place an IV can commonly be troublesome, especially when the individual has a history of drug abuse. In Lockett’s situation, the IV was eventually placed in his groin, only to dislodge moments before the medications could be pushed through him. The result? Forty-three minutes of agonizing pain and suffering as lethal dosages of drugs were injected into his muscle, leading to a massive build up in his groin. He jerked violently. He tried to scream but couldn’t. He became paralyzed, but the sedatives had not kicked in and the agony was evidently real.

Frightening. So much so, the prison staff had to lower the curtains to spectators before, finally, to the relief of the overseeing staff, he was pronounced dead.

How does that happen?

Unbeknownst to most, executions aren’t always performed by doctors. In fact, physician participation in executions continues to be debated in courts around the country and the lack of physicians with the willingness to participate is making it harder for courts to impose requirements for physician supervision in executions.

The American Medical Association’s code of ethics prohibits medical practitioners from performing executions, as doctors are only allowed to assist in the certifying of death. Regardless of AMA restrictions and the shortage of those willing to participate, doctors have in fact played at least minimal roles in executions, however, most of their identities have remained under confidential safeguards. These roles tend to be minimal and relate to merely certifying death and not the actual administering of medications–the step most desiring of someone with medical experience. Even more, the dosages used in each execution are determined primarily on guesswork based on what has worked in the past or what reasonably should work because sometimes the same medications aren’t available. Needless to say, there is no uniform guide to dosages.

This struggle to properly execute is becoming serious fuel for the anti-death penalty advocates who argue that our capital punishment system is a violation of the 8th amendment. (There are also significant assertions of violations of the 14th Amendment for its discriminatory use upon racial minorities.)

The 8th Amendment of the United States Constitution prohibits the imposition of cruel and unusual punishment. But the question becomes, “What is cruel and unusual punishment?” Unfortunately, there is no conclusive answer because no one can detail what is cruel and usual punishment. That being said, courts today prefer

LICENSE TO KILL to interpret the cruel and unusual punishment clause on a basis of social human decency and today there is a lot of commotion in society regarding capital punishment’s decency.

If Lockett’s execution isn’t startling enough, browse the facts behind the execution of Charles Warner in 2015. When Warner faced his final moments, the drug potassium acetate (used for tissue preservation) was incorrectly used in lieu of the lethal potassium chloride. The result was an execution by mummification. Throughout the 18-minute process, observers listened while Warner agonized in pain. “It feels like acid […] my body is on fire.”

Needless to say, we obviously have a problem.

The National Drug Shortage

Currently, there is a major shortage in drugs typically used for executions, and the reason is clear: Drug companies don’t want their medications used to kill people on purpose...It’s hard enough for them to deal with the public scrutiny over their drug prices. The last thing they want is to be labeled as executioner.

In 2010, the U.S. pharmaceutical company, Hospira—manufacturer of the commonly used execution drug thiopental—halted production because of an alleged manufacturing issue. But soon, the true reason surfaced, when the company requested that all state prisons stop using the drug in lethal injections as it was never intended to be used that way. This lead some states to seek stock from unregulated dealers in Britain. However, British officials quickly realized what was going on and immediately stopped exporting the drug into the United States (the European Union is staunchly against capital punishment). Prisons have tried to seek other drug alternatives but more and more drug companies are refusing to allow their drugs to take part in executions. Today, many manufacturers have implemented distribution controls to ensure prisons can’t get possession of further stockpiles of drugs. At this rate, prisons face a major obstacle in proceeding with executions.

This shortage has caused states to seek new cocktails for their lethal injections. The problem? States keep botching executions, leading to more negative press on the matter. It’s only a matter of time before society hears one too many disturbing stories about an execution gone awry.

If adequate drugs are unavailable, new alternatives in some states now exist, Oklahoma now allows using nitrogen gas asphyxiation. Tennessee will revert to the electric chair, and Utah will now approve reincorporating the firing squad if faced with a shortage.

You’re probably wondering… but who cares? Aren’t they just getting what they deserve? It is true that we are talking about how we

punish those considered to be the worst of the worst in our society.

But there is a problem. We have had over 150 people exonerated from death row, which forces us to wonder how many innocents have been executed. Additionally, there are serious concerns about the conditions on death row and whether death row itself is even more inhumane than the actual executions.

Nevada’s Future Death Chamber

Currently, a new execution chamber is being built at the Ely State Prison thanks to a capital improvement bill signed by Governor Sandoval last year. Nevada expects to use the drugs midazolam and hydromorphone to administer a lethal injection. Midazolam is an anti-anxiety medication meant to sedate an individual into a coma-like state before the hydromorphone is given. The problem is that Pfizer manufactures these medications and, like many other pharmaceutical companies, it has recently restricted the distribution of such drugs to ensure they do not end up in the hands of state correctional facilities for use in lethal injections.

Although the Nevada Department of Corrections claims to have a sufficient stockpile of medications, the lingering question is whether the use of such medications will remain constitutional by the courts. Last year, the U.S. Supreme Court in a 5-4 opinion ruled in favor of continuing the use of midazolam in executions; however, many critics still argue against the use of midazolam because it does not guarantee the inmate will be unconscious prior to the administration of subsequent drugs…thus leading to a squirming and anguishing inmate during a prolonged execution.

It’s only a matter of time before more challenges are brought against using certain drugs in executions or even against the lethal injection entirely. Many states have already done away with capital punishment and now, with society screaming against lethal injection, Nevada may soon have to remodel its new death chamber for whatever the next form of capital punishment will be. With such clout on the future of lethal injections, combined with the time and resources required to finally get an inmate inside the chamber, it makes you wonder if our new chamber will ever be used…or, whether it should.

For more on capital punishment in Nevada follow us online for exclusive interviews with Hon. Judge Donald Mosley (Ret.) & criminal defense attorney Tom Pitaro, Esq. www.vegaslegalmagazine.com/capital-punishment-interviews/

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ECONOMIC DAMAGES IN NEVADA

The Loss Of Society, Companionship & Other Economic Damages.

-By Stan V. Smith, Ph.D. VLM is pleased to announce that Stan V. Smith, Ph.D., will be a regular contributor to the publication on the topic of economics.

Smith is a nationally renowned expert in his field and was trained at the University of Chicago, one of the world’s pre-eminent institutions for the study of economics and the home of the law and economics movement. Testifying nationwide in personal injury, wrongful death and commercial damages cases, Smith has assisted thousands of law firms in successful results for both plaintiffs and defendants, including the U.S. Department of Justice.

Other accolades: Smith pioneered the first course in Forensic Economics at DePaul University, based on his textbook, Economic/ Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys. He pioneered the development of “Hedonic Damages” in landmark cases, and has been featured in the ABA Journal, National Law Journal, the Wall Street Journal, and on Larry King Live.

To celebrate Smith’s new affiliation with VLM (which we think is quite the coup), we’re reprinting his first VLM submission which appeared in our inaugural 2015 issue. We hope you get as much out of his well-respected knowledge as we do.

Since Banks v. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, 102 P.3d

52 (2004), my testimony on the loss of enjoyment of life in personal injury has been accepted by Nevada courts many dozens of times. Perhaps the most notable instances of the impact of this testimony were in the endoscopy cases where I testified to compensatory and punitive losses resulting in verdicts that ranged into the several hundred million dollars. Awards for the loss of enjoyment of life in Nevada, as in most states, are independent of pain, suffering and mental anguish.

Over the past decades, courts around the nation have recognized that the peer-reviewed value-of-life literature in economics has developed to the point where it can provide useful guidance to jurors, assisting them in the valuation process for loss of enjoyment of life. Hence, I have testified on the loss of enjoyment of life damages in personal injury and wrongful death cases not only in Nevada, but also in most other states. In most Federal Circuits, as well.

Economic testimony based on peer-reviewed economic literature can now also be provided to value other losses in personal injury and wrongful death cases, as well as losses in credit damage cases.

In personal injury and wrongful death cases, losses to close family members can include: a) the loss of society and relationship. b) the loss of advice counsel, guidance training and instruction. c) the loss of accompaniment.

In credit damage cases, it can include: a) the loss of credit expectancy. b) the loss of enjoyment of life in credit damage cases.

The evidentiary approach to measuring the loss of enjoyment of life, often called “hedonic damages” in economic literature, is arrived at by subtracting human capital values from whole life values. The wholelife values are obtained using the value-of-life results based on the willingness-to-pay approach, which measures the costs of investing in safety equipment and safer consumer behavior, as well as inducements provided to workers who undertake risk in the workplace. The litera-

Vegas Legal Magazine Fall 2016 | Pg.31

ture on the willingness-to-pay and the willingness-to-accept payment is extensive and one of the most settled areas of economic research, showing that the value of a statistical life is conservatively estimated in the $4.5-$7 million range.

This same approach, based on the value of a statistical life, can be used to value the loss of society and relationship to close family members in fatal and non-fatal personal injury. If a person places a smoke detector in his own bedroom, he is expressing a lower-bound to the value of his life in an amount equal to the cost of the detector (purchase price, installation, batteries, etc.) divided by the reduction in the risk of death.

If, for example, the detector costs $25 and reduces the risk of death by 1 chance in 200,000, then the value of life expressed is $5 million.

Now, suppose that a detector is placed in the bedroom of a close family member, such as a child, by a parent who seeks to preserve the society and relationship with that child. What value of life is expressed?

The same statistically averaged value of $5 million. But this value can be used to value the relationship to the family of the child’s life. This conclusion has been arrived at by Ted. R. Miller (“Willingness to Pay Comes of Age: Will the System Survive?” Northwestern Law Review, Vol 83, 1989, pp. 876-907): “When...[an] individual’s survivors may recover for their own loss of enjoyment, whole-life costs can again be used to estimate the appropriate level of compensation.” Also Lauraine G., and Daniel M. Violette in “The Relevance of Willingness-To-Pay Estimates of the Value of a Statistical Life in Determining Wrongful Death Awards” (Journal of forensic Economics, Vol. 3, No. 3, 1991, pp. 75-89) come to a similar conclusion: “We conclude that the WTP estimates are potentially useful when the definition of compensation involves putting a dollar figure on non-financial losses to the deceased or to survivors.” I, too, have summarized this approach in “The Value of Life to Close Family Members: Calculating the Loss of Society and Companionship” (American Rehabilitation Economics Association 1997 Monograph).

As an example of the loss of society and companionship due to the death of 12-year-old girl, survived by her parents, the losses are calculated through the life expectancy of the parents. Amounts can easily range to from $1-$2 million per parent depending on the life expectancies and the parents’ testimony as to the impact of the loss on their ability to derive value and satisfaction from their quality of life.

Peer-reviewed economic literature can also be used to measure an expanded view of the loss of household and family management services.

When a family member is injured or killed, services go beyond the traditional physical chores such as scrubbing floors and cooking. (For a discussion of the expanded view of household services, see Smith David A., Smith, Stan V., and Uhl, Stephanie R., “Estimating the Value of Family Household Management Services,” Forensic Rehabilitation and Economics, 2010.) Family members provide valuable advice counsel, guidance training and instruction to one another, on a weekly basis, and for years. Advice can comprise financial advice, medical advice, relationship advice, career advice, etc. I calculate such losses provided by family members who are age 25 and older. When young children are injured, family members frequently testify that they would have been provided such services when the child reached age 25. Again:

Vegas Legal Magazine Fall 2016 | Pg.32

Based on peer-reviewed literature, these values can range well into the six figures for each family member.

I also calculate the loss of accompaniment, or the value of time spent.

This is independent of the love and affection that is inherent in society and relationship. The value of time spent—even with a stranger devoid of any significant affection—is clearly illustrated in what my high school teacher told me was the first great book in English literature: Robinson Crusoe. Convicts express a desire to spend time in a small jail cell with other strangers rather than be alone. In fact, solitary confinement is a punishment… one that elderly people eloquently share with me after they have lost a spouse. The hours that family members (especially spouses) spend with one another adds up over the years; hence, such losses—independent of society and relationship—can range well into the mid-six figures.

Credit damage can arise for many reasons including failure to modify a mortgage, credit error, etc. The consequences of such damage are far reaching and can include and isn’t limited to job loss, loss of home, inability to borrow. Courts are increasingly recognizing that victims also sustain a significant loss of enjoyment of life. Such damages can be calculated independent of an organic or physical injury. Indeed, in wrongful discharge, defamation, and credit damage, loss of enjoyment of life damages are routinely calculated. I have also calculated these in instances involving sexual harassment, child pornography, sexual predation, and other instances where victims are injured, but not physically. Again, such losses are independent of physical pain, suffering and mental anguish.

Finally, in credit damage cases, the reduction in the creditworthiness itself is a measurable damage: the loss of credit expectancy. (See Smith, David A., Smith, Stan V., and Uhl, Stephanie R., “Credit Damage: Causes, Consequences and Valuation,” in Forensic Rehabilitation and Economics, 2011.) The loss of credit expectancy is a value similar to the loss of other options in life. The inability to obtain a car loan—or even to use a credit card online to buy merchandise, or a plane ticket to visit a sick relative—is a significant and measurable loss. Chicago, my hometown, is the world’s center for trading in options. The loss of life options including credit options can range into the six figures. The losses can last years, as creditworthiness is not easily restored.

The late Nobel Laureate Gary Becker, and other economists at the University of Chicago, pioneered the use of economic concepts well beyond the original traditional areas of economics. Economists can now use expanded research into the enjoyment of life, society and relationship, advice and counsel, accompaniment, and credit expectancy, to provide information to jurors as to how to value such losses. Jurors can greatly benefit from this to provide more rational and enlightened verdicts.

- Stan V. Smith, Ph.D. 1165 N. Clark Street, Suite 600 Chicago, IL 60610 Phone: 312-943-1551 | Fax: 312-943-1016 Email: Stan@SmithEconomics.com

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Vegas Legal Magazine Spring 2015 | Pg. 23

MEET THE

INCUMBENT Judge Joe Hardy With a passion for service in the community and the recognition

as a top attorney prior to serving on the bench, District Court Judge Joe Hardy is making sure to leave a positive imprint in Department 15. Prior to his appointment in 2015 by Governor Sandoval, Hardy was a co-managing partner at Gordon Rees, one of the largest law firms in the country. A third generation Nevadan, Hardy attended Boulder City High School before going on to graduate from Brigham Young University (BYU). While in law school at BYU he was the senior editor of the BYU Law Review and graduated cum laude. Hardy currently resides in Henderson with his family and when he is not on the bench he focuses on raising his two sons and working in the community with the Boy Scouts of America.

Board, Best Buddies of Southern Nevada, and the City of Henderson charter review committee.

VLM: What is the most memorable case you tried as an attorney before taking the bench?

JH: As with many attorneys, my most memorable trial as an attorney was my first. I was a young associate, licensed for about three years, when I was tasked with trying a complex civil litigation case in front of a jury. I was essentially thrown into the deep end of the pool and told to sink or swim.

We represented the franchisee of a national fast food chain and

Vegas Legal: What did you do before becoming a judge? were suing an engineering and architecture firm for professional Judge Joe Hardy: I grew up in Boulder City and went to undergraduate and law school at Brigham Young University, aka BYU. My legal career at a local firm called Beckley Singleton where I worked for about six years. From there I went to a regional law firm, Bullivant Houser Bailey, where I became a partner. My last six-plus years before becoming a judge were spent as a partner at a national law firm called Gordon & Rees.

Throughout my legal career I was fortunate to work with some of the best attorneys in Nevada and learn from them first hand. As an attorney I handled a wide variety of civil litigation matters. I was also able to serve the citizens of Nevada as an arbitrator for the Better Business Bureau, and as a member of the Taxicab Authority

negligence. The crux of the lawsuit and trial rested on the appropriate and required size of a leach field (septic system) and the complex interplay between Clark County and Nevada codes. I did most of the pre-trial work in the case and took the lead in questioning several of the witnesses at the trial. It was a great lesson in how to prepare a case for trial and how to try a case before a jury.

VLM: What made you decide to run for judge?

JH: When I decided to go to law school I thought I would be one of those lawyers who never goes to court. Because I was a shy introvert, I thought I would stick to writing contracts for a living.

My career path changed quickly however. The summer after my first year, I had the great fortune of doing a summer externship for Vegas Legal Magazine Fall 2016 | Pg. 35

MEET THE INCUMBENT the Honorable Lloyd D. George in federal court here in Las Vegas.

Judge George was so kind, thoughtful, and soft-spoken as a judge that I thought maybe one day I could become a judge like him. As a side note, the federal courthouse here in Vegas is named after him and he is still going strong on the bench as a senior judge.

Growing up as a kid, my parents instilled in me a desire to serve the public and give back to our community. Despite raising eight children, they were both always active in the community and giving with their time. Additionally, they taught us not to complain about something if we were not willing to anything about it. That life lesson helped push me to become a judge. Litigators, and I was one of them, sometimes complain about judges and their rulings.

I figured it would be unfair of me to complain if I wasn’t willing to do something about it, so I ran for and applied to become a judge.

VLM: What does being a judge mean to you?

JH: Being a judge provides me with an avenue in which to serve the public, give back to the community that has been so wonderful to me and my family, and do my small part to help ensure our citizens’ rights and obligations are protected and enforced by the rule of law. It means doing my small part to make our system of justice the best it can be.

VLM: What is your favorite and least favorite thing about being a judge?

JH: My most favorite thing about being a judge is being able to focus on what attracted me to the law to begin with—that is doing good for our citizens and businesses alike through the medium of the law. To me being a judge is both a humbling and personally gratifying experience. I take my position very seriously and strive to uphold the law as a judge to the best of my abilities.

Having always worked at law firms during my career as an attorney, the isolation of being a judge has taken some getting used to.

Perhaps that is why I thoroughly enjoy the back and forth with attorneys who come before me to argue for their clients in hearings.

VLM: Describe a court situation that tested the limits of your patience. How did you respond? In hindsight, is there anything you would have done differently?

JH: In one of my first jury trials as a judge, one of the attorneys showed up late on the first day. His office called to let us know he would be late, but they did not call until after we were supposed to have begun the trial. That wasn’t too big of deal as we all run into issues beyond our control from time to time. However, on the third day, he was late again and again without a call to let us know until after time to start. To make matters worse, everyone else, including the jurors and the attorney’s own client, was on time and we were all waiting on this particular attorney. The attorney’s tardiness was disrespectful so I told opposing counsel to think of what sanction, if any, I should issue. Luckily for the tardy attorney, opposing counsel simply suggested that the attorney apologize to myself, my staff, and his client. In hindsight, I would have silently counted to ten after the attorney arrived and before I took the bench.

VLM: What’s your biggest pet peeve caused by attorneys that appear in your courtroom?

JH: As you may be able to tell from my last answer, my biggest pet peeve is when attorneys are late without good reason and without letting us know ahead of time.

VLM: What is your best piece of advice for litigants and/or attorneys?

JH: For litigants, I would say do your best to listen to and follow the advice of your attorneys. They are experts in the law and you pay them for their expertise. I am always puzzled when litigants think they know the law better than their own attorneys.

For attorneys my advice is always be sure to comply with your duty of candor to the court and remember the judge’s staff is an extension of the judge. Although the vast majority of attorneys are courteous to my staff, there are some who are not. I guess those attorneys may not realize that my staff and I do talk to each other!

VLM: Describe a situation where you had to support a legal position that conflicted with your personal beliefs?

VLM: What is your passion outside of law?

Please tell us how you handled it.

JH: Fortunately, I have not come across this situation in my tenure as a judge. As a judge, I am to set aside my personal beliefs if they are in conflict with the law.

Vegas Legal Magazine Fall 2016 | Pg. 36

JH: My family. My wife Yvonne and I are blessed to have two sons, ages 9 and 13, whom we love and adore dearly. Watching them grow and develop and doing my best to help them become good citizens and members of our community give me great joy.

MEET THE INCUMBENT Apart from my family, I enjoy going to the movies, reading, and watching the best shows on Netflix. Two of my favorite foods are hamburgers and chicken parmesan, so I am constantly on the lookout for the best of both at various restaurants around town.

VLM: What do you love most about Vegas?

JH: I love how Las Vegas has become, and is still becoming, a major metropolitan area. When I was growing up here, Vegas was still a relatively small city that lacked a number of attractions common to larger cities. I love how we now have community attractions like Springs Preserve, the Smith Center for Performing Arts, two water parks, the relocated Discovery Children’s Museum, Neonopolis, T-Mobile Arena, etc.

Specific to the legal community here, I love the fact that despite the city’s tremendous growth, the legal field is still relatively small. I think that lends to better self-governance amongst members of our bar than in other large legal communities where members of the bar may never see each other again after working on a particular case.

Contact Isis Robles

Phone: 702-629-5189 | Fax: 888-341-5040 Email: customerservice@docrequest.com

PRESENTS

MAY 13TH, 2016

SPRING LAUNCH PARTY CHATEAU NIGHTCLUB PARIS LAS VEGAS

DON’T GET CAUGHT WITH YOUR HANDS IN THE TIP JAR:

Advice To Restaurateurs For Avoiding The Rise Of Wage & Hour Lawsuits.

-By Adam D. Kemper, Esq.

Outside of the traditional wage and hour lawsuit (typically based

on an employer’s failure to pay minimum wage or overtime compensation), there is a separate type of lawsuit aimed at restaurants (and other hospitality industries) for a different type of wage and hour violation—one based on improper tipping practices.

Over the last few years, Department of Labor (DOL) investigators found tip credit violations in over 1,500 cases, resulting in nearly $15.5 million in back wages. Unique to the wage and hour lawsuit is the potential for individual liability: In other words, a manager, high-level employee or owner of a restaurant can, and often does, get named as a defendant in a wage-and-hour lawsuit based on wage and hour violations.

It is no secret that employees in the restaurant industry rely heavily on tips, as they comprise a significant portion of their compensation. Tips from customers are considered property of the employee, and employees are entitled to retain all monies they earn in tips.

Under the law, an employer may take a credit against its minimum wage obligation and pay a reduced minimum wage to certain “tipped employees” employees (i.e., individuals who have regular customer interaction and receive more than $30 dollars per month in tips). Employers must fill in the gap when and if the employee fails to earn at least the normal minimum wage through wages and tips combined.

Vegas Legal Magazine Fall 2016 | Pg.41

Additionally, an employee may participate in a “tip pool,” which is where an employee shares his or her tips with other tipped employees and all such employees receive distributions from the tip pool.

A tip pool may not include employees who do not have customer interaction and do not customarily and regularly receive tips (i.e., dishwashers, managers, cooks, chefs, janitors, and other back of the house employees).

Earlier this year, the 9th Circuit Court of Appeals reversed a lower court decision that allowed Wynn Las Vegas to pool its dealers’ tips and distribute them among other employees. Wynn’s tip-pooling policy previously required that casino dealers share their tips with “box people” at the craps tables and customer service team leaders.

This may result in Wynn (and other casinos or Vegas organizations that have similar tip pools) having to compensate hundreds of In fact, a common lawsuit is one that involves a tipped employee dealers who previously had to share their tips with other employclaiming that the restaurant employer “diluted” the tip pool by in- ees. Wynn elected to maintain its policy as it awaits further appeal cluding non-tipped employees in the tip pool. By permitting non- before the U.S. Supreme Court. tipped employees (who earn at least the normal minimum wage and do not engage in customer interaction), tipped employees are With all of the above said, here are five “tips” to avoid the tip-relatlosing a portion of their hard-earned tips that would ordinarily ed audit or lawsuit in any state, including Nevada: only belong to them.

1. Understand that tips are the property of the employee and Another common lawsuit is when a restaurant employer requires the employee is not required to share them with anyone. If your his or her employees to perform non-tipped duties at the reduced/ restaurant is permitted to take a tip credit on employees and tipped minimum wage. In every restaurant, there is some down does, make sure employees are notified and paid the appropriate time or a list of “side work” for tipped employees to complete. (For tipped minimum wage. example, servers may be asked to assist in setting and/or wiping down tables, restocking supplies or silverware, etc., even though 2. If your restaurant has a tip pool, maintain and enforce a strict such work does not directly result in tips.). The DOL permits policy that only permits employees who “customarily and regrestaurant employers to continue to pay the reduced minimum ularly” receive tips to participate in the tip pool. Never allow wage to tipped employees while performing such side work so long non-tipped employees to participate in the tip pool. as it is (1) minimal and no greater than 20 percent of the time and (2) related to the performance of tipped duties.

3. Maintain adequate and accurate time-keeping records. If your “tipped employee” is performing non-tipped work, make sure However, employers cannot pay their tipped employees the re- it is related to the tipped position and only for a very limited duced minimum wage if they spend a significant amount of time amount of time. Otherwise, the employee must be paid the full performing non-tipped work (e.g. washing dishes, preparing food, minimum wage for time spent on non-tipped work. mopping the floor, wiping down tables, etc.). In this scenario, the employer is improperly benefitting from paying its tipped employ- 4. Constantly monitor compensation and tip distribution to enees the reduced/tipped minimum wage, while the employee is per- sure employees are paid appropriately and timely. forming significant work that does not result in tips.

5. Keep your employees happy. Retaining happy employees is It’s important to note that each state has its own minimum wage the number one way to avoid a workplace-related lawsuit. and tipping requirements. Nevada (and in particular, Las Vegas) is the home of many popular restaurants found on the famous Adam D. Kemper, Esq., is senior counsel for Greenspoon Marder, P.A., a Las Vegas Strip. Recognizing the need to maintain quality service full-service law firm with offices in Florida, Nevada, California, New York, to cater to a tourist crowd, Nevada is one of a minority of states and Colorado. He practices in the area of labor and employment law where that provides equal treatment to tipped workers in terms of wages, he regularly counsels employers on a variety of workplace issues including but not limited to interviewing; hiring; employee discipline and discharge; meaning restaurants must pay their employees at least the regular workplace discrimination; harassment; retaliation, wage and hour (includminimum wage (rather than a reduced tipped minimum wage) per ing tipping practices); whistleblowers; unemployment; restrictive covenants; hour. Thus, Nevada employers may not take a tip credit for their non-compete, non-solicitation and non-disclosure agreements; separation employees and must pay at least the full minimum wage. agreements; and workplace policies and employee handbooks.

Nevada, however, has still had its share of tip-violation issues. In 2015, the limousine company Executive Las Vegas was required to pay over $200,000 to 479 employees for minimum wage violations.

In that case, the DOL reported, among other things, that Executive used incorrect calculations to measure whether employees’ tips exceeded the minimum wage.

Vegas Legal Magazine Fall 2016 | Pg. 42

More information about Kemper can be found at http://www.gmlaw.com/adam-d-kemper/.

THE COURT OF PUBLIC OPINION –By Mark Fierro

So, you just signed your highest-profile case ever, and it comes

with one of the biggest retainers you’ve ever hoped for. Unfortunately, it also comes with a big stack of messages—all from the media; all regarding the allegations made against your brand new client; and all are requesting a callback. Today.

These are the swift waters that you’ll find yourself in when dealing with the court of public opinion, where ignoring the call is an answer, “no comment” is one of the worst, and the wrong answer could color the way the community views your client in the coming months or years.

As a former television journalist who covered the courts for nearly a decade, I often wondered why incredibly bright attorneys stumVegas Legal Magazine Fall 2016 | Pg. 44

bled so badly when defending their clients in the court of public opinion. Recently, my firm spoke with two of Southern Nevada’s standout litigators who know the rules inside and outside the courtroom—who have “fought the good fight”—Dominic Gentile and Tom Pitaro. We asked them about making what can be the very difficult decision to engage or not engage with the media in a high-profile case.

According to Pitaro, while it can be a delicate decision, it’s important to remember that the other side has a machine that’s already working against you.

“The U.S. Attorney has a press office, and many times you have to deal with that, because they get the first bite,” says Pitaro. “It’s a sit-

THE COURT OF PUBLIC OPINION

“Sometimes it’s the expert outside the courtroom that you need to advise you on the best way to go for your client.”

–Tom Pitaro, Esq.

uation where you have to be reactive, and decide how you are going to react to what they’re saying through the media. You’re answering it without putting the client in jeopardy.”

cess, you have to have credibility with those people. That’s the key.

That doesn’t happen overnight. You aren’t born with it. You have to earn it.”

Responding to the media may cause pain initially, but ignoring the media can put a reputation in jeopardy. As Gentile explains, in some cases it’s a matter of playing for the longer term.

In our own practice, our team comprises veteran journalists with backgrounds in both broadcast and print. We understand the nature of what the reporter needs while protecting the rights of the client.

“You do have to push back in order to minimize that kind of damage…not just to a person’s reputation, but to the moral capacity that the person is going to need in order to fight these allegations,” says Gentile.

“If the government, or the adversary, is able to diminish their will to fight, then they’ve already won the battle. In those instances, you absolutely have to do damage control and what we call crisis management.”

In those cases, the next critical decision is whether to engage the services of a PR professional. Fierro Communications has provided litigation support in some of the highest profile criminal and civil cases in the past two decades, such as the Michael Jackson death case, in Nevada’s only modern-day impeachment.

“Sometimes you have to engage a professional to help you do that,” Pitaro says. “Lawyers are great in the courtroom but they’re not necessarily media-savvy. Sometimes it’s the expert outside the courtroom that you need to advise you on the best way to go for your client.”

While the rules of the court are fairly well defined, it can take years to master the rules of interacting with the media. Even when you have a thorough understanding of those rules, you have to ask yourself: Do I have the background and the reputation with reporters to get your story out in its clearest light?

In our agreements, which are always made directly with the law firm and typically guaranteed by their client, the attorney is both the quarterback and head coach: We suggest offensive and defensive plays to help the attorney/spokesperson deliver the best defense to members of the media.

It’s important to know that virtually every PR firm will claim to understand crisis management. When weeding out your options, the threshold questions should be: How much experience does their PR team have as working journalists? What are the most complex cases the firm has handled?

A good litigation support team can provide a broad array of services—everything from the initial statement to the media, to “Day in the Life” videos in civil cases, and in criminal cases where someone may soon be named as a defendant. And thinking long term, if a story has legs, you may consider a PR team that could help write compelling op-ed pieces or even a book or books to help support your position as their client.

Fierro Communications, Inc., is a full-service public relations and marketing firm with video production assets and a wealth of media contacts in Southern Nevada and throughout the United States. Mark Fierro is an author of two books and has appeared on national news broadcasts including CNN, Entertainment Tonight and ABC’s 20/20.

Initial consultations for litigation support are always free of charge.

“It’s important to be able to have access to media people and the media they are engaged in,” says Gentile. “But in order to have acVegas Legal Magazine Fall 2016 | Pg. 45

a katz / Shutterstock.com

Gino Santa Maria / Shutterstock.com

CLINTON & TRUMP:

‘HUGE’ —By Valerie Miller

As the summer heat approached 110 degrees in the Las Vegas Valley, across the country in Cleveland the political temperature was perhaps even hotter.

The Republican National Convention just had its roll call of the states, officially making New York billionaire and reality TV star Donald J. Trump the GOP’s 2016 presidential nominee.

Cover Story

BATTLE FOR THE PRESIDENCY IS

Nevada and the presidency come November. Though, he admits, Donald Trump is a serious threat to pull off an upset in the general election.

“Trump has so much popularity, and his message of it being a ‘rigged system’ has a resonance here,”’ Hart says of Nevada. “There is still high unemployment, and a lot of lost jobs.”

There was a small disturbance by some so-called “Never Trump” GOP delegates on the first day of the mid-July event, and a widely booed non-endorsement from Trump’s chief GOP rival, Texas Senator Ted Cruz. But, for the most part, the nomination went smoothly. Many Republicans were excited, while some delegates were just resigned to support their party’s nominee.

Others skipped the convention and used their opposition to Trump for personal fame…and, to milk it for television appearances.

Hart, who worked back East on then-President Jimmy Carter’s re-election campaign in 1980, cautions against dismissing Trump as simply a reality-TV star. He recalls Carter being roundly defeated by a former actor— Republican Ronald Reagan—because of the global turmoil and domestic economic problems that plagued Carter’s presidency. Hostages were being held at the American Embassy in Tehran, Iran, and the U.S. economy was in bad shape in 1980.

But for many Americans, Trump’s formal nomination was both a surreal and a historic moment. For the very first time, a total newcomer to politics and government had taken the political world by storm and succeeded. Trump did not flame out, or drop out, as media commentators predicted—and as his 16 Republican primary opponents had hoped.

In 2016, though, Hart sees a lot going in Clinton’s favor. “She has a strong message and [the endorsement of] Bernie Sanders will help her a lot,” he adds. Sanders, an independent senator from Vermont who ran as a Democratic Socialist, put up a battle in the primary. He finally endorsed Clinton in the summer, and hoped to bring some of his young supporters to Clinton’s side.

The last non-politician to be elected president of the United States was Dwight D. Eisenhower in 1952. That was more than 60 years ago. However, even that comparison doesn’t do justice to what Trump has achieved, says historian Michael Green, a professor at the University of Nevada, Las Vegas, and himself a Democrat.

“This is one that is keeping me up at night,” says Green of the 2016 election. “[Trump] has no political or governmental background, and has never held office. Eisenhower had commanded Allied forces in World War II.” Green can’t help but be amazed by the reality star-turned-Republican nominee’s meteoric rise. “I never thought he would go through with it,” as many initially dismissed Trump “as the flavor of the moment.”

While Green says he would be “shocked” if Trump became president, he also concedes that many unpredictable things could alter this election cycle. “It could be anything from some major revelation about Hillary Clinton to a major terrorist attack.”

Democratic Backers: Clinton is the Odds-On Favorite Dan Hart, a longtime Democratic strategist who now lives and works in Las Vegas, thinks the odds are still favorable that Hillary Clinton will win both

Still, just how many Sanders backers will flock to Clinton remains to be seen. In May, the Nevada State Democratic Convention in Las Vegas erupted into chaos at the end, when Sanders’ supporters tried to charge the stage, demanding a delegate recount. That forced the convention to abruptly end at the Paris-Las Vegas, and dozens of police had to be called in to keep the peace.

But Hart, who has worked on a pro-Clinton super PAC, also cites Clinton’s strong “ground game.” The former secretary of state is accessing President Barack Obama’s highly successful method of identifying potential voters and getting out the vote. Obama has also endorsed Clinton.

“It really comes down to that 5 percent of the incremental voters,” Hart explains. “Once you identify them, you have to get them to the polls.”

Chris Esposito, a partner of the political consulting group Dover Strategy Group, agrees that the country is so politically polarized that the battle is really for a small slice of the electorate: independent voters, or those who may switch from one party to another.

“The presidential races are really decided by people who are nonpartisans,” Esposito notes. “These people don’t really pay attention until October. These are people who sporadically vote or who have never voted.”

Vegas Legal Magazine Fall 2016 | Pg. 47

CLINTON & TRUMP Polls have consistently shown Clinton with a large lead among women voters, while Trump leads with male voters. Esposito says that’s a great edge to have.

“The presidential math shows that more women than men vote on Election Day.”

clude the recently concluded House committee investigation into the 2012 deaths of four Americans in Benghazi, during her tenure as secretary of state.

That said, Root thinks the issues that affect people’s everyday lives are ones to emphasize.

Trump’s Making History

“I think the economy, terrorism and illegal immigration matter more than Hillary’s history,” Root says. “Like it or not, the average voter just doesn’t understand the crimes of Hillary, from the Benghazi cover-up...to her email and perjury crimes.”

Despite Trump’s historic achievement, it is overshadowed by doubt about his chances against the Democrats. He has enormous unfavorable numbers, and normally, that would be enough to torpedo a candidate’s electability. But this is no normal election. His Democratic opponent—the former secretary of state, New York senator and First Lady Hillary Rodham Clinton—has her own problems.

The wife of former President Bill Clinton has struggled with her own unpopularity and questions about her trustworthiness. Those concerns were only heightened in July, when FBI Director James Comey announced he was not going to recommend indicting Hillary Clinton…yet laid out the case against her use of a private email server to send classified information while she was secretary of state. Comey’s comments became the subject of Republican attacks, and fueled Trump’s “Crooked Hillary” storyline.

Trump is huge in Nevada. He won the Nevada Caucus by a landslide in February, and local radio personality and political commentator Alan Stock is not the least bit surprised. Stock, who is backing Trump, said the very things that make Trump so popular also draw the harsh criticism.

“Trump brings out a lot of emotion. People have been attacking him because of that strong emotion. But a lot of people like the things he says, and they don’t want him to stop being himself,” he explains. “So, you are damned if you do, and damned if you don’t.”

How Did We Get Here?

More than a year ago, Donald Trump took the now-famous ride down the escalator at Trump Towers in New York, with his wife Melania, and announced he was running for president of the United States. The billionaire businessman then proceeded to make politically charged remarks about the crimes committed by some illegal Mexican immigrants, to illustrate why he felt the country needed more southern border security. Trump promised to “build a wall” on the Mexican border. Media pundits pronounced the Trump candidacy dead on arrival after the shocking speech.

Those remarks resulted in Trump being labeled a “racist” by many in the mainstream media. Sponsors fled anything connected to the controversial candidate. Many in the Hispanic community were offended. Businesses did not want to lose customers because of supporting Trump products. Denouncing Donald Trump seemed to replace baseball as the nation’s national pastime in the summer of 2015.

But, as it turns out, only certain factions in the country were outraged by Trump’s comments on illegal immigration. His support grew among his base… “a base” of people who had lost jobs, lost money and were rapidly losing their place in America’s shrinking middle class. In essence, they had lost hope.

“People are glomming onto him because of jobs,” Stock says.

Las Vegan Wayne Allyn Root, an early Trump supporter, author and radio personality, says Clinton has plenty of her own problems. Those issues in-

Vegas Legal Magazine Fall 2016 | Pg. 48

Trump’s populist stance on stopping unfair trade, and bringing jobs back from countries like Mexico and China, was a hit with voters—including many working-class white Democrats. Clinton, on the other hand, was overwhelmingly winning the support of African-Americans. She also had a big lead among Hispanic voters.

Supporters and defenders of Donald Trump were quick to point out that Trump was only referring to immigrants who were here illegally and committing crimes…not all Mexicans or Hispanics. They pointed to an immigration system they called “broken,” and a growing threat of terror from Islamic extremists groups. Groups, such as the Islamic State, which have warned they would infiltrate the refugee population fleeing violence in the Middle East.

“He has talked about building a wall, but it is metaphor for keeping the border secure,” Stock says. “Nobody has kept the borders secure since Eisenhower.”

Stock says Trump has been unfairly labeled a racist. “Trump is absolutely not a racist. He is not against Hispanics coming across the border legally. It is the illegals he is talking about. People say he is “anti-black,” but I challenge you to find something bad he said about [African-Americans].”

Surprisingly, a Pew Research Center Poll found that as many as 33 percent of Hispanics said they would vote for Trump in November. Root says Trump is a very likable person, and not a hater.

“He has energy. He’s a showman. He’s fun,” Root continues. ”I think all people of all races and cultures like that. White, black, Hispanic, Asian—Donald is entertaining and brilliant and unique in any language or culture!”

But Stock concedes that Trump has made a lot of people angry.

Democrats and progressive Liberals—including his chief rival, the 2016 Democratic Presidential Nominee Hillary Clinton—accused Trump of spreading hate and divisiveness. Along the way, what Trump commonly called “the dishonest media,” did countless hours of coverage of Trump’s comments about some Hispanic immigrants and women.

Trump was soon also labeled a “misogynist” after making comments about Fox News personality Megyn Kelly having “blood coming out of her wherever,” referring to her performance moderating the first GOP primary debate.

Trump and Kelly had a public feud, which began after Trump accused Kelly of being unfair to him during that same debate. (Kelly had brought up insults Trump made—in another years-old feud between Trump and comedienne Rosie O’Donnell—to ask about his attitudes toward women.)

By the time the New York real estate developer took on the Fox News star, Trump was no stranger to controversy; however, a funny thing happened after his altercation with Kelly. Trump’s poll numbers went up. A large number of Republican voters sided with him.

Gale Tuzzolo, the political director at the Nevada AFL-CIO, thinks Trump has done too much damage to himself to recover in either Nevada or the general election. The AFL-CIO has endorsed Hillary Clinton, both nationally and in Nevada.

“We have many minority members, and immigration is a working man’s issue,” Tuzzolo says. “And a lot of women won’t go near him.”

Somewhere around 21 percent of Nevada’s 225,000 AFI-CIO members are Hispanic. The Culinary Union had also endorsed Clinton.

Root thinks Trump’s chances with women and minority groups are not as bad as the media makes it out to be.

“As far as how Trump can win over women or Latinos, or blacks or Asians or gays...it’s so simple. Trump needs to paint the picture of the worst economy in modern history,” Root says. “Obama is the first president in history to produce 8 straight years of economic growth under 3 percent. Obama is worse than even (then-President) Herbert Hoover in the depths of the Great Depression.”

So Many Feuds…

Trump has made some enemies but usually comes out on top. Prior to the Kelly feud, in the summer of 2015, Trump got drawn into another fight.

Sen. John McCain, R-Ariz., had criticized Trump’s followers. The New York billionaire and presidential hopeful was bombastic in his response. Trump questioned whether McCain was truly a Vietnam War hero, even though McCain had spent years as a prisoner of war. Again, Trump’s candidacy was pronounced dead by the media. How could someone insult a true war hero, and the 2008 Republican presidential nominee, and expect to win the GOP primary? How could Trump ever recover with the all-important voting veterans?

Again, critics were dumbfounded, as “Teflon” Donald Trump increased his lead in the polls over Bush dynasty heir Jeb Bush, the extremely popular former Florida governor and the son and brother of former presidents. Trump also soundly defeated the candidate Time Magazine had called “the savior” of the Republican Party— first-term Florida Senator Marco Rubio. Also among the vanquished 2016’s GOP presidential hopefuls was Cruz, who was a conservative Tea Party favorite.

Then in December, following the deadly Islamic State-inspired terror attacks at a San Bernardino office Christmas party, Donald Trump drew widespread condemnation by proposing a temporary ban on all Muslim immigration.

While a chorus of mainstream media, liberal progressives, Democrats, and many Republican leaders condemned Trump’s remarks, again he rose in the polls. In fact, some polls taken after the terror attack found that a majority of Americans approved of Trump’s temporary ban idea. Now, Trump was also labeled an “Islamophobe” and a “xenophobe.”

Even after becoming the presumptive Republican presidential nominee in May, after handily beating Cruz in the conservative state of Indiana, Trump was not done courting controversy. After making comments about possible bias by a Hispanic-American judge in the lawsuit against Trump University, he took a hit in the national polls. The Trump campaign then revamped its leadership. That move, combined with the harsh public criticism of Clinton by the FBI’s Comey, turned the election into a close again race by convention time.

Joseph Sohm / Shutterstock.com

But just how much stock should we put in polls?

“The polls are just a snapshot in time,” Esposito says, adding a lot can change before the final ballots are cast.

Tuzzolo is confident Nevada will be blue in November. “I think Hillary will pull out front and come on strong.”

But Root says Americans know what is on the line in an age of global terror.

“We need someone who understands it is madness to import hundreds of thousands of war-zone male Muslims into America. That is the definition of insanity and self-hatred. Trump is the answer to save America and to make America great again!”

So, who will win? No one knows. Amid the change that could be on the country’s horizon, however, one thing remains certain for the Silver State’s lifeblood, either way, says David Schwartz, director of the UNLV Center for Gaming Research.

“I don’t think there will much change to gaming policy.”

Valerie Miller is an award-winning journalist based in Las Vegas. She can be reached at valeriemusicmagic@yahoo.com.

Vegas Legal Magazine Fall 2016 | Pg. 49

BUSINESS BUSINESS CITY SIN BUSINESS CITY CITY REPORT REPORT

“Success is walking from failure to failure REPORT “Wall Street is the only place that with no loss of enthusiasm.” people ride to- Winston in a Rolls Royce to get advice Churchill

from those “Quote.” who take the subway”

–Author -Warren Buffett

HENDERSON’S HOSPITAL OPENING • PG.53 MEDICAL MARIJUANA • PG.56 MONEY MATTERS • PG.58 THE INSIDE TIP • PG.60 BRINGING TINSELTOWN TO THE DESERT • PG.63

Vegas Legal Magazine Fall 2016 | Pg. 51

Photo courtesy of hendersonhospital.com

Henderson’s Rise Leads To New Hospital Opening SAM KAUFMAN NAMED HEAD OF NEW FACILITY. –By Paul H. Janda, D.O.

Henderson (or more officially, the City of Henderson), is the sec-

ond largest city in Nevada with an estimated population of nearly 300,000 people. There are a few key reasons for its size. In 2011, Forbes magazine deemed Henderson “America’s second safest city”; Bloomberg Businessweek named it one of the “Best Cities to Live in America”; and the Uniform Crime Report, published by The Federal Bureau of Investigation (FBI), ranked Henderson one of the top 10 “Safest Cities in the United States.”

These attributes have resulted in Henderson’s popularity…but it’s not only known for its safety: Henderson’s population is ethnically diverse, comprising all ages and socioeconomic strata; it’s renowned for mild winters and hot summers; and a multitude of master-planned residential communities have helped contribute to the city’s public schools being highly regarded. As a result, demand has also grown for medical care to match the level of living at which its citizens have become accustomed.

The Valley Health System noted this challenging circumstance and has stepped up to the task. Adding to its consortium of five independent hospitals—Centennial Hills Hospital Medical Center, Desert Springs Hospital Medical Center, Spring Valley Hospital Medical Center, Summerlin Hospital Medical Center, and Valley

Hospital Medical Center—the system is building a new, state-ofthe-art medical center to fill the needs of Hendersonians.

Henderson Hospital will be the newest addition to Valley Health System designed from the ground up to deliver the same high level of medical care as its other facilities, which will be thanks, in part, to its leadership. Sam Kaufman, the former concurrent chief executive officer of Valley Hospital Medical Center and Desert Springs Hospital Medical Center, will serve as its CEO.

Kudos For Kaufman Kaufman’s years of experience helped him helm an award-winning facility that delivered outstanding patient care while preserving strong relationships with community physicians at Valley Hospital Medical Center. Kaufman oversaw residency training programs in the fields of Family Medicine, Internal Medicine, Ophthalmology, Orthopedic Surgery, and Neurology, and he also maintained strong administrative support of fellowship programs in Pulmonary and Critical-Care Medicine, as well as Gastroenterology.

The successes of those programs solidified Kaufman’s reputation and affinity for promoting education. With Nevada’s well-known Vegas Legal Magazine Fall 2016 | Pg.53

Henderson’s Hospital Opening

shortage of physicians, the potential for additional residency training programs would be a solid step in solving this problem in Henderson, as well, and Kaufman has the background to do it.

He serves as an active board member on the Governor’s Committee for Medical Education, and he sits on the Health Law Advisory Board for the new Health Law Law Master’s Program, currently in development at the William S. Boyd School of Law at UNLV. Kaufman’s accolades are predicted to guide Henderson Hospital’s trajectory toward becoming one of Nevada’s premier hospitals, while bettering the city of Henderson as a whole.

High Hopes for Henderson Hospital The Valley Health System is known for delivering evidence-based care, and Henderson Hospital will continue this trend as a comprehensive, full-functioning hospital with services that meet and exceed Henderson’s needs. The hospital will provide emergency care; surgical services; and women’s and children’s services, including a

maternity ward and a nursery. Ancillary services such as on-site laboratory facilities, respiratory therapy, radiology, and an inpatient pharmacy will also be on the hospital’s campus.

State-of-the-art patient rooms equipped with the latest technology, and a “Healing and Wellness Garden” and a “Butterfly Garden”— where patients, families and visitors can share time together and heal—will round out the hospital’s amenities.

Located at the intersection of the U.S. 95 and Galleria Drive, when Henderson Hospital opens Nov. 1, 2016, it will be both a necessary and a welcomed addition to the city.

Paul H. Janda, DO, is a board-certified neurologist and the founding member of Las Vegas Neurology Center, a multi-specialty neurology group that is also one of the largest neurology groups in Las Vegas. Janda is the president-elect of the American Heart Association for Las Vegas. And as a graduate of UNLV’s Boyd School of Law, Janda is Nevada’s first, and only, board-certified neurologist-attorney.

The 2nd British Invasion – By Rick Nelson

Land Rover Las Vegas has proudly supported the community

since 1999 making a name for itself as the leader in luxury auto sales in Las Vegas. July 1, 2016 will be an exciting date as the dealer is proud to announce the addition of Jaguar Cars to create Jaguar Land Rover Las Vegas. Jaguar originally serviced Las Vegas under Gaudin Jaguar. Gaudin Jaguar was recognized numerous times as a Pride of Jaguar winner, the highest award possible for a Jaguar dealership. Land Rover Las Vegas has been awarded as a Pinnacle Club dealership, the highest award for Land Rover, 8 out of the last 9 years. As Jaguar Land Rover Las Vegas, Findlay Automotive plans on continuing the stellar performance from the past and bringing it into the future. Both Jaguar and Land Rover have historic, proud histories that continue on today.

Jaguar is not only known as a leader in luxury but also as a leader in performance. Jaguar has won the 24 Hours of Le Mans 7 times in their history. Jaguars are also recognized for their beauty. The game changing E-Type of the 1960s and ‘70s was even recognized

by Enzo Ferrari as, “the most beautiful car ever made.” All of those characteristics are still visible in their award-winning vehicles today. From the regal and luxurious XJ to the all-new sporty F-Pace, Jaguars first crossover vehicle ever, they have a commanding view

into the future. The XJ being Jaguar’s flagship model is the ideal vehicle to shuttle yourself between home and the golf course. With the addition of the F-Pace, the race car driver at heart now has a vehicle to cruise down Las Vegas Boulevard with everyone watching them in awe. Jaguar is also very excited to have introduced the new XE model to their lineup. This vehicle has made a splash as their reintroduction into the small premium sedan market. The XF which is their premium midsize sedan blends both practicality and luxury flawlessly to make the daily commute much more exciting. The final model in the Jaguar lineup is the highly praised F-Type. With many different engine choices ranging from a potent Supercharged V6 to a powerful Supercharged V8, producing 575 horsepower, the only question you will be asked is how quickly do you want to get to your destination?

Jaguar Land Rover Las Vegas is the continuation of success from a singular Land Rover Center into the leader of all of your vehicle needs in the Las Vegas area. We would like to thank you for your continued support of us and we are excited to see what our future has in store!

Vegas Legal Magazine Fall 2016 | Pg. 55

MEDICAL MARIJUANA NEVADA’S GROWING BUSINESS –– By ByValerie Valerie Miller Miller

Longtime Las Vegas businessman Andrew Jolley had a successful

career in real estate and, by his own account, was never interested with experimenting with drugs such as marijuana. Fast-forward to 2016, and Jolley is running a pretty elaborate—and legal— medical marijuana dispensary, cultivation and dispensary operation.

Just how did this real estate entrepreneur turn into a marijuana mogul, of sorts? As Jolley explains, the process began in 2001, when he lost a lifelong friend to an accidental death from prescription drugs at age 27.

“He was misprescribed a very powerful prescription drug. He took half of the recommended prescribed dose, and he died the first time he took it,” Jolley recalls. “And, he was previously taking medical marijuana, and he had to travel to California to get his medicine—legally. It made it a hardship for him.”

That personal tragedy reinforced Jolley’s support for using cannabis for medical uses.

“I have always believed that medical marijuana can help people,” he recalls of his late friend. “I saw the impact it made on my friend’s life. And ultimately, he died partially as a result of not having access to medical marijuana.”

The Roots Of The Pot Industry”

While the use of cannabis for medical purposes has been legally allowed in Nevada for more than a decade, there was always a sticking point of how to get patients their medical pot. Nevada residents desiring to use marijuana for ailments would need to get a letter from their doctor prescribing cannabis. Then, the patients could apply to the state of Nevada for a medical marijuana card, which legally allowed them to use marijuana. But the next step was more Vegas Legal Magazine Fall 2016 | Pg. 56

challenging. That was because unlike codeine, morphine and other prescription drugs, there were no pharmacies that stocked marijuana. (Man-made cannabis pills, called “Marinol,” however, are available at pharmacies with a prescription.)

Nevada law, prior to 2013, allowed medical marijuana patients to grow a small number of cannabis plants, but did not offer them any mainstream access to purchase the drug for medical use. Sometimes, that resulted in medical marijuana patients sharing their pot with each other, or—for those who weren’t skilled enough to grow their own cannabis plants—illegally buying it on the street.

Prior to 2013, a few so-called medical marijuana “co-ops” set up shop in Las Vegas to supply marijuana to patients. As there was no state law on the books to allow for the operation of dispensaries in Nevada, the so-called co-ops were based on “donations,” according to their operators. Eventually though, most were raided by law enforcement and shut down.

Since the 1970s and the presidency of Richard M. Nixon, the cannabis plant has been labeled a “Schedule 1 drug,” meaning the federal government considers it the most dangerous type of drug.

This classification also means the federal prohibition on marijuana remains, although in recent years, the Obama Administration has indicated it would not interfere with the decisions made by the individual states, leaving each state to decide whether to legalize cannabis for medical or recreational use, or both.

In 2013, the Nevada Legislature voted to approve the licensing of marijuana dispensaries in Nevada to supply medical marijuana.

While dozens of states have already approved the medical use of cannabis, others have gone farther. Colorado, Washington, Hawaii, and Oregon have legalized marijuana for recreational use. The Dis-

Nevada’s Growing Business

trict of Columbia has also approved recreational marijuana.

Nevada is scheduled to have a measure on the November ballot to legalize marijuana for recreational use.

Building Business From The Group Up

The price was not cheap, but the results have been worth it. “Now, we are a medical marijuana company and we have two dispensaries, two cultivation facilities and a production facility,” he says.

“But when you add up all the money spent on going into the licensing process for all five of our licenses…just shy of a million dollars.

So, it is extremely expensive for us being small-business owners here in Nevada.”

Given the complicated history of marijuana in America, it was not a surprise that those seeking marijuana dispensary licenses in Nevada had to go through a complicated and costly process. Jolley, who partnered with his real estate partner Steve Byrne, and local attorney Pat Byrne (no relation), spent months studying the regulations for applying for a dispensary license. And that was only the beginning.

Banks are reluctant to lend to cannabis-based businesses, due to the existing federal prohibition on marijuana, so financing for The + Source was put up by the partners themselves. Jolley says that means lenders are subject to additional regulatory scrutiny. Harvest of Tempe was also made a partner in The + Source.

“The process was extremely competitive and difficult,” Jolley recalls. “We went through about a year-long application process that involved applications in Clark County, Henderson, and the state health department’s application process. But at the end of the day, we received what we applied for and we are very fortunate to be among the top-10 scoring applications in the state.” Separate approvals were needed for dispensaries, production facilities and cultivation facilities, which made the process more arduous. In addition, different jurisdictions had their own processes for selecting applicants, before submitting their candidates for state approval. For Jolley’s fledgling company—The + Source—that meant he needed approvals from Henderson, unincorporated Clark County and Nye County. Then, he needed state of Nevada’s approval.

Local radio personality and political commentator Allen Stock is one of those opposed to making recreational marijuana legal. Stock plans to vote “no” on Question 2.

The process was not cheap. To apply for a marijuana-related business license, applicants had to “control” the real estate where their business would be located. This meant, applicants had to pay rent for property long before they knew if their business would be approved.

“So, we ended up buying the entire shopping center that our dispensary is located in for our license…at Sahara [Avenue] and Rainbow [Boulevard],” Jolley says.

While Jolley was a real estate expert, he knew he needed people who are experts in the medical marijuana business for this venture to succeed.

“We looked to Colorado, to California and Arizona for partners and hoped that we found really good partners out of Arizona,” he says, referring to Harvest of Tempe. “They had an existing dispensary operations down there. And application fees themselves were very expensive. You had to hire teams of design professionals.”

What’s next for Jolley and The + Source? He is keeping his eyes on the fate of Question 2, come November…a measure that would make recreational marijuana legal in Nevada. While Jolley wants the measure to pass, there are opponents of making pot legal in the state.

“It is like drinking,” Stock recalls. “When I was younger, we thought, ‘It’s not bad for us. It’s just a matter of age. But let’s experiment with it now.’ The problem is that kids are using [marijuana] in the fifth grade, and it is destroying their brains because [their brains] are not developed.

“When I grew up in the ’60s and ’70s, [my generation] was in our 20s when we tried it.”

While Stock supports the rights of sick people to get medical marijuana, he is opposed to creating marijuana dispensaries in Nevada.

“There shouldn’t be dispensaries. If it is a medical drug, go down to a Walgreens and fill it,” he adds. “If you put dispensaries out there, they will be like drug houses.”

However, Stock believes that marijuana users should only be given tickets for possession in most cases. DUI cases would be different.

“I would criminalize driving under the influence [of marijuana]. If you are doing something that impairs you, don’t drive.”

Valerie Miller is an award-winning journalist who can be reached at valeriemusicmagic@yahoo.com.

Vegas Legal Magazine Fall 2016 | Pg. 57

Planning Your Exit:

Thinking Long Term Keeps Your Business On Track.

You’ve navigated a competitive market, steered your company to profit-

ability, and put it on track for healthy growth and expansion. It’s now time to start thinking about an exit strategy.

their assets into their business. Money tucked away in a 401(k), IRA or other retirement plan can act as a shock absorber, cushioning owners from any economic potholes they encounter on the way to the exit door.

Sound premature? It’s not. Proper planning can help ensure both a successful business transition and an equally successful retirement for the owner.

Too often, owners get caught up in day-to-day operations and forget to think long term. Some figure they’ll simply “turn the business over to the kids.” Others plan to sell when it’s time to retire and live off the proceeds.

For young companies, the best retirement savings vehicle might be a SIMPLE IRA, which lets both owners and employees contribute and at higher levels than those allowed with a traditional IRA. As companies grow, 401(k) plans can be a good next step, and Roth 401(k)s—which are funded with after-tax dollars—provide distributions that may be tax free.

But often, the kids don’t want the business, and finding the right buyer may not be easy… particularly these days when capital is tight. Those who do find a buyer may end up agreeing to an installment sale, which means they’ll likely get the business back if the new owner goes broke. A boomerang sale is a headache if the business comes back when you’re young, but it can be a disaster if the sale is a critical part of your retirement.

Permanent life insurance offers another way for owners to diversify their holdings while creating a potential safety net for both their company and their retirement. Business owners, for example, may be able to borrow on the accumulated cash value in these policies to help meet expenses or payroll during lean times. And if the policies have cash value when the owner is ready to retire, it can be a good source of supplemental retirement income.*

That’s why owners who want to get full value from their business need to think ahead. Succession planning should start as soon as an owner is able to move beyond tactical day-to-day operations to think strategically about the business and his or her own role in the company’s future.

Consider Barry Middleman, now 71, who founded his architectural firm back in 1973. He was still in his early 50s when he first began his succession planning. He started by crafting a new identity for his business. In 1994, the firm shed the name “Middleman, De La Garza & Neugebauer” and became “MDN Architects.”

“A personal identity drives down the value of a company,” Middleman explains. “It is not as marketable.”

At about the same time, MDN began working to seriously diversify its client base, once again increasing the company’s value. Then, 2 years ago, a new partner came on board, dramatically lowering the average age of the partners. Now, Middleman is planning to gradually step back from the business, staying involved in those areas that interest him most. Eventually, he says, he’ll retire, leaving the new partner at the helm.

Yet, even careful succession planning can be bumpy, as Middleman learned when the recession hit in 2008. That’s why owners can’t afford to put all of

Vegas Legal Magazine Fall 2016 | Pg. 58

Ultimately, succession planning is about more than simply finding the exit door. It’s also good business. While there are no guarantees, planning that focuses on such things as increasing the company’s value can help keep a business on track while it’s still growing. And that’s a good way to make sure you won’t be leaving your retirement to chance. *Access to cash values through borrowing or partial surrenders will reduce the policy’s cash value and death benefit, increase the chance the policy will lapse, and may result in a tax liability if the policy terminates before the death of the insured.

The information provided is not written or intended as specific tax or legal advice and may not be relied on for purposes of avoiding any federal tax penalties. MassMutual, its employees and representatives are not authorized to give tax or legal advice. Individuals are encouraged to seek advice from their own tax or legal counsel.

Insurance products issued by Massachusetts Mutual Life Insurance Company (MassMutual), Springfield, MA 01111-0001 and its subsidiaries C.M. Life Insurance Company and MML Bay State Life Insurance Company, Enfield, CT 06082. © 2014 Massachusetts Mutual Life Insurance Company, Springfield, MA 01111-0001 Kyle Lum is a financial representative with MassMutual Boulder Basin, who represents MassMutual and other companies. This article is submitted by Kyle Lum, and courtesy of Massachusetts Mutual Life Insurance Company (MassMutual).

THE INSIDE TIP With John Tippins

When Silence Is

Not Golden O

ne of the most powerful tools we have in business is something so basic to our daily lives, we forget to appreciate its benefits: the cell phone.

Everywhere you go, from airports to your doctor’s waiting room to even a hushed-toned restaurant, we can’t stop texting, taking pictures or idly skimming through social media. So with the accessibility our cell phones provide, why do so many of us still struggle to return messages?

I understand not wanting to speak with that pesky salesman who calls you every Monday morning, but when it comes to returning calls and emails from clients, your response time (or lack thereof) could mean the difference between opening your doors the next morning or shutting them indefinitely. So, in this edition of The Inside Tip, I give you a simple one: Return your clients’ reach-outs.

No matter how busy and successful you may be, don’t forget that it’s each one of those clients, customers or patients seeking your services that convert to dollars in your business. There are no excuses. We all have cell phones, and we can make calls or send emails instantly. For most of us, not returning messages will just punish us in the form of our deposits at the bank; but for attorneys, not returning messages can lead to sanctions from the State Bar of Nevada. I’m not an attorney, but I’m willing to bet those sanctions

Vegas Legal Magazine Fall 2016 | Pg. 60

are worse than taking a few minutes of your day to get back to someone.

With that said, make yourself accessible. Business owners who allow themselves to be readily accessible to clients and customers will have a much higher retention rate than those who keep themselves as silent as their phones.

John Tippins is the CEO of Northcap, owner, operator and listing brokerage for over 2,000 distinct high-rise and mid-rise units in Las Vegas including The Ogden, Juhl, Palms Place Condo Hotel & Spa.

BRINGING TINSELTOWN TO THE DESERT

Nevada Sweetens Incentives For Las Vegas Film Production…

But Will The Industry Grow?

– By Elena Castriota

As you enter through the doors of the restaurant and lounge, D’ Coffee Shop, the atmosphere feels otherworldly and mystical, somewhat apart from reality. Antiques and baubles adorn any empty space on the walls and surfaces, clocks of all sizes hang at jaunty angles and rich colors of burgundy and mahogany envelop the dining room.

This isn’t just a restaurant, however: it’s a television set.

Lakisha Swift, the owner of D’ Coffee Shop and star and producer of D’ Coffee Shop Closes at 9pm, is forced to juggle her passion for acting with her need to make a living, as many in the budding Las Vegas film and television scene must. “It is a long strenuous, tedious ordeal,” she explains. “There’s a lot of hurry up and waiting.”

The Twilight Zone-esque series isn’t being pitched to major networks. Swift, like other producers in Nevada, is producing the series independently to sell to a streaming service. “We want to keep control and creativity over this,” says Swift, who’s been acting for the past 20 years. “Sometimes it’s good when you can make your own.”

Countless individuals and companies seek the financial benefit of Nevada’s low-cost living versus California, its more expensive border cousin, and for people in entertainment production, there’s a trade-off: Creatives in Las Vegas have no choice but to film low-budget, independent films and shows, as the market—and money—for making big movies and small-screen series is primarily located 270 miles away in Los Angeles…the center of the industry.

nito / Shutterstock.com

Vegas Legal Magazine Fall 2016 | Pg. 63

Bringing Tinseltown To The Desert “Most who are independent filmmakers have other jobs,” explains Brenda Daily, CEO of Mamabird Productions, an independent film company. “We’re not getting the work out here we’d like to have, and that’s why we’re not growing the film industry as we could.”

In 2010, unlike many states that aspire to be film-friendly, Nevada wasn’t offering tax incentives to those who wanted to film in the state. As a result, the Nevada Film Incentive Task Force (now, the Nevada Film PAC) lobbied state legislators to pass laws providing tax credits to attract production to the state.

Senator Aaron D. Ford, the co-sponsor of the eventual bill, promised his constituents that he would diversify Nevada’s economy and bring in new industry. He hopes to do so with the film incentive.

“Our state has an ideal location for the film business, rich with iconic landmarks like the Las Vegas Strip and Lake Tahoe, and it possess many workers who are trained in the technical and creative aspects of the film business,” he says in a video on his Nevada state website.

In 2013, the film incentive bill was passed and the state agreed to give $20 million per year for 4 years in tax credits. But things got complicated in 2014, when Tesla explored Nevada as a possible location for its Gigafactory and looked to the state legislature for funding. As a result, all but $10 million of the funding promised for tax credits, as well as money from other programs, went to Tesla.

In 2015, the bill was brought to the floor in an attempt to bring the program back to its former funding but it has not been voted on.

Joshua A. Cohen, co-chair of the Nevada Film PAC and founder of Cohencidence Productions, LLC, as well as a few other film-related business ventures, is hoping to change the landscape of filming in Las Vegas and the state of Nevada.

“Statewide production volume has tanked over the last 15 years.

The number of productions is increasing, but each is spending less locally,” says Cohen. “The big, multi-million dollar productions are going to other states with funded incentive programs. There is enough crew base and infrastructure here to handle three major productions at once, like we did in 2014.”

The Nevada Film Office (NFO) is a government agency that promotes the state of Nevada as a film and production area; assists in hiring local crews; helps to find facilities, lodging and rental equipment, and much more. It is required by the state that all productions are registered with the NFO and that a permit must be granted by local jurisdictions.

Vegas Legal Magazine Fall 2016 | Pg. 64

Film permits hit an all-time high in 2015 with 436 granted for filming in the public write away, up from 400 in 2014, 343 in 2013 and 226 in 2012. (This number does not include filming on private property, however, so the number of films and productions is likely significantly higher than what is reported.)

“I think that our government employees do a really good job helping businesses get things done, but they require that the law is observed so they can take care of our community,” says Michael Stein, a partner at the law firm Snell & Wilmer.

Stein stressed the importance of getting a permit while working on public land, especially national parks. “I think it’s very important that before production they find a Nevada attorney to help them,” he says. Many filmmakers run into trouble without consulting a lawyer, or from using one that is not an expert in Nevada law.

Looking toward the future, Jason Miller from Silver State Productions hopes to keep recent graduates from the University of Nevada Las Vegas local, instead of watching them move to the increasingly saturated Los Angeles film community. “Students from UNLV are so great, but are being forced to move to L.A., so we’re losing these really quality people—young people that any state should want.” By staying, Miller argues that they will buy homes and put their money into the local economy, helping more than just the film industry.

Although the film and television industry in Las Vegas and Nevada is only now picking up, there are already capable, passionate individuals who are determined to help their state grow to potentially bring thousands of new jobs to the state…if it’s not forced to move elsewhere.

“I’m still optimistic about building a film and television industry here,” adds Miller. “It’s a natural fit with Las Vegas’s branding as the Entertainment Capital of the World. We have plans to build a studio, and we anticipate getting our incentive funding back next session in 2017.”

Elena Castriota is a Boston-based freelance writer and social media marketer. She can be reached at ercastriota@gmail.com.

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Art Appeal

DISCOVERING MARTIN LAWRENCE GALLERIES

Bertho // Martin Lawrence Galleries

There is only one place in Las Vegas where residents and visi-

tors alike can come face-to-face with original and unique works by 20th century masters including Picasso, Chagall, Warhol, Erte, Miro, and more. Where 21st century masters-to-be are housed— masters like Bertho, Deyber, Fressinier, Hallam, Hofmann, Kondakova, Mas, Nichols, and many others. Where Salvador Dali’s largest oil painting in history is displayed on a wall that is 63-feet wide and 18-feet tall. Where a 27,000 square-foot showcase is filled with the most exceptional fine art from the past 100 years. Where over $100 million of museum-quality treasures are available not just to admire, but to acquire.

Only one place in all of Las Vegas. Martin Lawrence Galleries.

Martin Lawrence Galleries is recognized worldwide for its dedication to offering the finest in contemporary and decorative art, and its Las Vegas location—inside the Forum Shops at Caesars Palace—is the crown jewel of its 10 galleries that span the United States.

With new works arriving daily, the gallery is awash in inventory that offers visitors a once in a lifetime journey through the emotional, thought provoking and exciting world of fine art, curated by professional consultants who are friendly, knowledgeable and collectors themselves. Nowhere in Las Vegas can one find the type of treasures that are found at Martin Lawrence. Each piece of art is in the finest condition, with pedigree guaranteed genuine by the nation’s leading art retailer.

Martin Lawrence Galleries owns each piece in its collection and its art consultants intimately know all items. They take deep pride in helping customers purchase what they love. Offering one-onone customer service to assist both the novice and the experienced collector in building their fine art collections, Martin Lawrence Vegas Legal Magazine Fall 2016 | Pg. 72

Galleries’ staff will happily visit your home or office. And as an added service, consultants will deliver framed artwork without obligation, allowing clients the opportunity to view the pieces in their new setting before buying. They will also hang purchased artwork within 50 miles of any of the gallery locations.

Martin Lawrence is a major contributor to many of the worlds’ finest museum exhibitions, including works on loan by Picasso, Magritte, Calder, Francis, and Warhol. In the last 15 years, Martin Lawrence Galleries has lent nearly 250 different artworks by 16 different artists to 32 different museums around the world. Museums such as the Whitney in New York City; MOCA in Los Angeles; the San Francisco Museum of Modern Art; the National Gallery in Washington D.C.; the Pompidou Centre in Paris; the Picasso Museum in Barcelona; the Hermitage in St. Petersburg; and the Royal Museum in Brussels, have all borrowed pieces directly from Martin Lawrence.

Special events at Martin Lawrence Galleries are always underway, including frequent exhibitions, artist shows and a yearly fine-art auction in September that includes refreshments, spirited bidding and a raffle. Recent gallery shows have included appearances by contemporary British Impressionist Kerry Hallam and contemporary Pop Cubist, René Lalonde. In July 2016, Martin Lawrence Galleries of Las Vegas hosted its annual VIP event. This year’s theme, “The Art of Love,” was held to benefit the charity RaiseAChild.org.

Martin Lawrence Galleries is located in the Forum Shops at Caesars. It is open Monday through Friday, 10 a.m. to 11 p.m., and weekends from 10 a.m. to 12 a.m. For more information about the gallery’s artwork, or to inquire about hosting an event inside the gallery, please call 702.991.5990. Other locations include La Jolla and San Francisco, Calif., Maui, Dallas, New York City (Soho), Chicago (Woodfield), New Orleans, and Boston. If you are unable to visit a gallery, images of artwork can be shared via email or through www.martinlawrence.com.

Andy Warhol, Marilyn #31, 1967, hand-signed screenprint, 36 x 36 inches

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TheSmithCenter.com 361 Symphony Park Avenue, Las Vegas, NV 89106 | 702.749.2000 | TTY: 800.326.6868 or dial 711

BAR REVIEW The Mixx Grill & Lounge For Locals, By Locals – By Jen Chase

From the get-go, the restaurateurs who have brought Mixx Grill’s relaxed

atmosphere to Summerlin’s Boca Park had one thing in mind: make it about the locals.

In most cities and towns, that’s probably a no-brainer. But in a place built on the backs of tourists who spend copious dollars that help keep the Las Vegas economy in the black, an eatery and drinkery for the folks who call this city home, 24/7/365, it’s important. And it’s the kind of (daresay) “winning thinking” that having an experienced duo on the front end can produce.

Mixx Grill was founded by JP Teresi, whose previously-opened-successful-restaurant-roster includes Sugar Factory, Chateau Beer Garden, Gordon Ramsay Steak, and countless others. Putting his degree to use, earned at France’s University de August Escoffier, service is key for Teresi…service that also delivers food representative of around the world quality and flavors.

alone (check out the two daily happy hours—2:30-6:30 p.m. and 10:3012:30 a.m., with prices starting at a very un-Vegaslike $4.77), there’s a lot to like. Especially this: “The Iron,” reminiscent of a teppanyaki grill, only bigger. Way bigger. And round. It allows diners to watch some culinary theatre before they get to ingest it, but not before they put their own touch on their meal by combining produce, proteins, sauces, and spices to create stir-fry-esque meals with unimaginable possibilities.

(Or, they can order off the pre-determined menu which is predetermined to fill bellies just as tastefully: butter-bean hummus; chorizo-stuffed Maine lobster; Portobello mushroom quinoa; Wagyu short rib. Yum.) There’s a lot to love about Mixx Grill. What’s your favorite? Go for yourself and find out. And, go often. With a menu like Mixx’s (especially with that Iron), Teresi and Ogden have all but assured you’ll go back early and often.

LOCATED AT BOCA PARK 750 S. Rampart Blvd., Las Vegas, NV 89145

Which makes this second, equally important half of any restaurant equation come together so nicely for Mixx: It has food that chef Bryan Ogden has brought to it. After years in the kitchen at Caesars’ Bradley Ogden (his father), he’s brought his culinary expertise to a place where he can truly hang his hat at, serving a menu that’s all his own.

From cold, hard-shaken drinks to its menu that runs lunch to late night and has something for vegetarians, carnivores and even just imbibers

Watch Online www.vegaslegalmagazine.com/the-mixx-grill

Vegas Legal Magazine Fall 2016 | Pg. 75

Baby Boomers & Plastic Surgery – By Julio L. Garcia, MD FACS

People desire cosmetic procedures for a variety of reasons. For

some, it is because they are looking to enhance their appearance before re-entering the dating scene; some want to look on the outside as they feel on the inside; and some just want to look better in their clothing. It is a sign that after years of spending time on work and family, they want to spend a little time and invest in themselves.

The Reality Of Recovery

Some patients are concerned about bouncing back and returning to work in a reasonable amount of time, and that is a valid concern: Healing and recovery can in fact take longer in mature patients.

But in most cases, if they follow instructions and discuss with their surgeon what will be expected of them, returning to employment in an appropriate amount of time can be planned for.

But a result of recent financially trying times, there has been a trend in baby-boomers wanting to stay competitive in the job market. In years gone by, many would’ve waited to have plastic surgery to enhance their appearance once they were retired; but now, with first impressions and the competitive nature of the job market being what they are, people are seeking cosmetic enhancements much earlier as a way to prolong their working years.

It’s The Money, Honey

According the American Society of Plastic Surgeons, people over 55 accounted for over 25 percent of all cosmetic procedures performed in the United States in 2013. But there can be hurdles for the mature patient undergoing a cosmetic surgery procedure. Here are a few things to keep in mind.

It must be understood that both surgical and non-surgical options are good, and that fillers and non-invasive procedures do not replace surgery (and, vice versa). For that reason, you should discuss your desires with your plastic surgeon as well as your short- and long-term goals. Some patients find that a surgical procedure is the most economical in the long run, with only small amounts of fillers

A hurdle for some people on a fixed income is that their desired elective procedure will eat into their nest egg. This is important when deciding the best plan of action to achieve one’s desired cosmetic result. Although non-invasive options can appear less expensive, in the long run (and if enough of them are needed), their cost can add up to almost the cost of a surgical procedure.

Vegas Legal Magazine Fall 2016 | Pg. 77

BABY BOOMERS & PLASTIC SURGERY to maintain the appearance as they age being the best option. But a frank discussion with the surgeon is required for plans and decisions to be made in the best interest of your wallet, and your body.

More Than Just A Pretty Face

Although most people think that the mature patients seek only improvements on their faces, body work on people over 55 can constitute more than a third of all body work a plastic surgeon does in a year. At times, the type of body work that should be done on a mature person is slightly less aggressive in order to avoid the prolonged recovery, but that is something that can be customized to fit the individual and their ability to take time off of work. As with all procedures, having an open discussion with your surgeon should assuage concerns or fears, but also set you up for ultimate success.

Protect Your Health, Protect Yourself

With all patients—especially those in the baby-boomer age group— pre-existing medical issues should be addressed and cleared by a primary care physician before any procedure. Additionally, not only is it important to evaluate a patient’s physical health, but their

emotional health is also a prime factor in proper treatment. In all patients, but especially in mature individuals, an open discussion about motivations and expectations about the procedure must be discussed. A procedure’s result (and how dramatic a change can be) is, at times, more underwhelming in an older individual. A surgeon can apprise a patient of limitations and perhaps normalize expectations…but the patient needs to be frank with the surgeon.

Plastic surgery, in short, is not for everyone…but if you are wondering if it is an option that is safe, affordable, and will give you, the patient, the improvements you seek, make a confidential consultation to explore your options. A board-certified plastic surgeon, such as myself, would look forward to answering your questions in an effort to give you the best experience possible.

Julio L Garcia, MD FACS, is the founder of the Regenerative Medicine Institute of Nevada, which is dedicated to helping patients with adipose-derived cell therapies for the treatment of acute and chronic medical issues.

For more information about Dr. Garcia, please visit his websites at www. lvcosmeticsurgery.com and www.rminlasvegas.com, or contact his office by calling 1-888-FACES-89 or (702) 870-0058.

VEGAS LEGAL MAGAZINE

Happy Hour JULY 9TH, 2016

THE MIXX GRILL & LOUNGE BOCA PARK LAS VEGAS

Health & Fitness

Las Vegas’ New Luxury Market – By J. Malcolm DeVoy

According to the Centers for Disease Control (CDC), 34.9 percent of

adults in the United States are obese. Simultaneously, a 2015 report by Stephens, a financial services firm, about the rise of high-end, boutique health clubs such as Pure Barre and Orangetheory Fitness—both of which have presences in Las Vegas—estimates the size of the domestic health club market at $22.4 billion. These new entries into the Las Vegas market are competing for customers with the long-standing Las Vegas Athletic Club, with its numerous locations throughout the valley, and high-end players Lifetime Athletic and David Barton Gym. On their face, the CDC statistics and the Stephens report seem in conflict with one another. A national obesity rate of nearly 35 percent—which does not even include those merely classified as “overweight”—initially seems at odds with a robust and growing fitness sector. Spending time in and around the fitness industry, though, reveals that it is not immune from the broader socioeconomic trends facing the United States.

As with economic opportunity, health and fitness within the United States appears to be amid a great bifurcation. Part of a common narrative dating back to the Occupy Wall Street movement, a widening chasm

of fitness is emerging between the haves and the have-nots.

Those who have the ability to prioritize their health, or who allocate their assets to make it a priority, have created a health and fitness market that operates much like any other luxury market. Gyms, personal trainers, supplement companies, and even some doctors, are no longer merely providing a fungible service, but are giving customers an experience.

Consumers are not merely purchasing a gym membership or a product, but an entire lifestyle.

The Rise of The High-End Gym Historically, physical fitness was a requirement of the intelligentsia and rulers of any society, rather than just for the warrior class. As Socrates said: “No man has the right to be an amateur in the matter of physical training. It is a shame for a man to grow old without seeing the beauty and strength of which his body is capable.” This wisdom echoes through the ages: Renowned Japanese author and nationalist Yukio Mishima wrote passionately about the impact weight training had on his life in

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HEALTH & FITNESS his autobiographical essay, Sun and Steel. And Henry Rollins, singer for the notorious punk band Black Flag, echoed Mishima in his own revealing story of how lifting weights transformed his life, “Iron and the Soul,” in Details magazine in 1994.

While the explosion of high-end gyms over the last 16 years has been unique, professionals have long been concerned about health, vitality, and appearances. Dr. Gordon Patzer’s 2008 book, Looks: Why They Matter More Than You Ever Imagined, summarizes extant research about the tremendous importance physical appearances have in the workplace, including for legal professionals. An entire chapter of Patzer’s book, titled “Rendering Judgment: How Looks Affect Courtroom Results,” is dedicated to the importance of the attractiveness of attorneys, parties, and even jurors, on the judicial process. It is little wonder, then, why service professionals including doctors, lawyers, salespeople, and others sought out facilities that would suit their needs.

As fitness research became more widely available on the Internet, fitness myths of the 1980s and 1990s—epitomized by “low fat” foods and Olestra—yielded to a collective realization that there was no substitute for lifting weights. The fitness industry rose to meet these demands in numerous forms, from exclusive weight rooms to organized classes. The result is a mix of strategies that shows no signs of stopping.

Among traditional gyms that have sought a higher image, Las Vegas’ City Athletic Club has been a locally owned and operated participant since 2011. Its owner, Jea Jung, the son of a world-renowned Tae Kwon Do instructor and himself a former bodybuilder, brought his lifetime of experience in the fitness industry to open his gym in Las Vegas. (In addition to owning City Athletic Club, Jung’s commitment to fitness also led him to create J-Bells, an alternative to dumbbells for free weight use.)

Jung believes that Las Vegas is something of an anomaly to the national fitness market. As a bodybuilder with a background in the fitness industry, Jung has been able to operate a premium gym in Las Vegas in a manner that would be impossible in other cities. His years in the fitness industry gave him a level-eyed realism in confronting this market: Rather than operating a volume-oriented, 10-dollar-per-month gym, he set his sights at the top of the market while being realistic about what doing so requires. In an era where some gyms seek to lower prices to compete with inexpensive gyms, Jung searches for ways to take his facility to the next level, without the capital backing of a national brand such as Lifetime Athletic or Equinox.

In addition to people who can freely spend the funds needed for a gym membership, Jung is acquainted with a different consumer base: those who will spend their last dollar for fitness. While the affluent may focus on experience, those who make serious sacrifices for their fitness also want the best return on their investment. In Jung’s view, both priorities contribute to demand outstripping the supply of quality fitness facilities, allowing the prices to increase upward. As in other fields including law, and as documented in Robert Cialdini’s book Influence: The Psychology

of Persuasion, high prices are a boon to marketing an in-demand service. For gyms, high rates may feed into another source of demand for their services.

Jung sees a pervasive effect of social media, particularly Instagram, in creating the demand for high-end gyms. Bragging rights, such as the ability to claim membership at a certain gym, checking in to it on Facebook, or posting photos taken there on Instagram, become more important than the gym itself. Like other luxury products, the gym experience becomes a source of ego fulfillment and validation; working out is secondary to the esteem and self-worth that members obtain from informing others of where they are, and where they belong. While the laws of supply and demand inform price, the culture of vanity—accelerated by social media’s ubiquity—plays an outsize role in driving demand.

Departing from the traditional gym setting, other forms of fitness training have gained popularity in the last decade. One of the most prominent examples of alternative fitness (and most explosively popular) is CrossFit—the trade name for a series of demanding group workouts that include free weights, bodyweight, and cardiovascular elements that change daily. According to Forbes, there were more than 11,000 officially licensed CrossFit gyms in 2015. In 2005, there were only 13.

Some gyms, including City Athletic Club, have CrossFit components to their facilities. CrossFit gyms more commonly stand alone due to the equipment and space needed, which differs from typical gyms and often includes gymnastic rings and open areas to perform lunges, farmers walks, and the dreaded burpees. The official CrossFit website indicates that there are 37 licensed CrossFit gyms in the Las Vegas and Henderson area as of July 2016.

The CrossFit experience is premium, and carries a premium price tag.

At Freestyle CrossFit in Downtown Las Vegas, regular monthly memberships start at $120, and can go up to $160. In Southwest Las Vegas, CrossFit Mountains Edge has similar pricing, running from $135 to $170 per month.

While CrossFit has been controversial in some circles, whether for reasons of cost or the debilitating injuries it can inflict on its adherents, others see CrossFit’s aggressive pricing as a desirable feature. In a 2015 entry on Philly Law Blog, Philadelphia attorney A. Jordan Rushie took issue with the view that CrossFit is too expensive. “[Y]ou’re hanging around other people who make enough money to spend it on a gym that costs $150 per month. Not $10 per month. Who do you think will make better clients? Who do you think will have better referrals?” Beyond camaraderie, the networking opportunities provided by treating fitness as a luxury pay for themselves. The costs of fitness do not end in the gym, though; instead, they merely begin there.

Supplementing the Labor It is increasingly rare to find anyone whose fitness regimen begins and

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ends at the gym. Reliable numbers on what percentage of gym-goers use supplements, ranging from vitamins and minerals to protein shakes to pre- and post-workout products, are hard to find. Still, there is no absence of evidence of the tandem rise of gyms and the supplement industry. Many nutrition and supplement stores in Las Vegas, such as Nutrition Rush, are located nearby if not adjacent to gyms. Lifetime Athletic and City Athletic Club both have supplement stores and health bars within the gym itself. Even without direct, causal data, the supplement industry’s size and growth closely tracks that of gyms and health clubs in the recent past.

Because the supplement industry largely is self-regulated—the FDA’s hands-off approach to nutritional supplements standing in stark contrast to its treatment of prescription drugs—there is little publicly available or verifiable information. On the low end, TABS Group estimated that the domestic supplement industry was worth $11.8 billion in 2015.

Nutrition Business Journal hotly disputed the TABS Group valuation and estimated the United States’ industry’s size at $36.7 billion.

Consulting firm McKinsey & Company estimated in a 2013 report the global supplement market was worth $82 billion. The McKinsey report further indicated that sales increased by $6 billion in the United States alone from 2007-2012. Known transactions support an 11-figure valuation for the domestic supplement industry. In 2008, international nutritional ingredients group Glanbia Nutritionals acquired Optimum Nutrition, a trusted supplier of protein products, for $315 million. Glanbia also owns one of Optimum’s erstwhile competitors, Bio-Engineered Supplements and Nutrition, also known as BSN. The Internet has been a leading force in both selling and disseminating information about supplements. As noted in the McKinsey report and Nutrition Business Journal’s valuation of the supplement industry, Internet sales of supplements have growth significantly over the past 10 years and contribute a significant chunk of the industry’s size. From established retailers such as Amazon, to start-up sellers such as Vitacost, iHerb, and Lockout Supplements, numerous channels are available for purchasing supplements discreetly.

Knowing what supplements are needed is a precursor to buying them, even over the Internet. In recent years, websites and e-books have risen to fill this gap. Established in 2011, Examine.com has grown into an easy-to-navigate and stunningly deep source of supplement information. Containing more than 50,000 citations to scientific research, Examine evaluates the claims associated with various supplements, vitamins and minerals. Prior to buying, users can assess things such as whether magnesium actually increases aerobic exercise performance (it does), or if ashwagandha reduces anxiety and cortisol, the stress hormone (it does). Despite the website’s enormity, it is far from the only source of information about supplementation.

P.D. Mangan overcame chronic fatigue by teaching himself about nutrition and supplementation. Today, at age 61, he regularly lifts weights, has a formidable physique, and maintains the website Rogue Health and Fitness where he posts regular articles about his health research.

He also has published books including Stop the Clock, about anti-aging techniques; Best Supplements for Men’s Strength, Health, and Virility; and most recently, Dumping Iron—warning about the underreported cognitive and physical problems caused by excessive iron in the body.

As a result of his books and online writing, men and women reach out

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to Mangan to further discuss their conditions. In an e-mail, Mangan estimated that approximately 90 percent of the people who contact him were male with “decent” middle- to upper-middle class income. Observing that people interested in health have above-average income, Mangan’s readers are also brighter and more intellectually curious than average in order to work through his scientific books and their technical language.

While Jea Jung anticipates that people who use supplements spend approximately $200 per months on them, Mangan’s number is more conservative, at $30 to $50 dollars per month. Jay Campbell, a fitness athlete and former Las Vegas resident, estimates that affluent supplement buyers may spend up to $300. Personally, Campbell focuses on getting the highest return on what he ingests, and his monthly supplement spend comes in at under $150. When it comes to supplements, Mangan’s belief is that the more expensive a supplement is, the less necessary it is. For weightlifters, Mangan expects the staples of protein powder, creatine, zinc and magnesium to be affordable. As Mangan noted, though, namebrand products are more expensive, likely contributing to the discrepancy between his monthly budget and Jung’s.

Mangan sees huge potential growth in the supplement industry as more anti-aging research is completed and publicized. With an undertone of optimism, Mangan notes that men want good physiques, and are coming to understand that obtaining one is within their reach. While he believes that the past few decades of health advice have been nearly unfounded, including low-fat and high-carb diets, and vegetarianism, Mangan is confident that people are finally seeing that supplements work and are worth the expense.

Dr. Brett Osborn affirms much of this information in his 2014 book Get Serious. Osborn, a Florida-based neurosurgeon, provides guidance about weight lifting, diet, and supplementation in Get Serious. Chapter 8 of the book is dedicated entirely to supplementation. While Osborn makes it clear that his writings are not medical advice, and readers should confer with a doctor before taking any supplements, he provides his opinion about the most effective supplements on the market.

Appearing shirtless on the front cover of Get Serious, Osborn’s appearance is a testament to his recommendations. A number of entries in Osborn’s book and Mangan’s recommended supplement list overlap, including vitamin D3, magnesium, and omega-3 fatty acids. Supplements alone cannot build a physique, but they can make it easier to obtain.

Moreover, they can improve mood, cognition, and stamina, which even an improved appearance is not guaranteed to do.

In addition to complementing a rigorous workout routine, dietary supplements also undo the effects of the modern diet and pharmaceutical industry. Both Jung and Osborn lay significant blame for the poor state of national health at the feet of the pharmaceutical industry. As Osborn wrote in Get Serious, “[C]ompanies like Pfizer and Merck thrive on the treatment of illness. There is money in disease, not health. Due to this, supplement manufacturers have been vilified and touted as the mortal enemy threatening to rob the gravy train. And that’s exactly what it is.”

Even as the supplement industry gains credibility based on published research, supplements alone may not be enough to overcome the effects of pharmacology, whether directly ingested or absorbed through the environment. Academic research has documented the adverse effects of residual hormone mimickers from birth control, as well as diabetes

HEALTH & FITNESS medication, on wildlife in the Great Lakes. As a result, it may be impossible for some people to reach optimal health only through supplementation. Additional measures may be needed to obtain an ideal hormonal balance, and today they are more widely available than ever before.

The Hormone Replacement Therapy Explosion

Striking this balance takes considerable investments, time and money.

Patience, comfort with needles, regular blood work, and a prescribing physician who is well-versed in this increasingly popular area of medicine are all necessities. As one would expect, demand for medical professionals with deep, substantive knowledge in this area far outstrips supply, and their services are priced accordingly.

Juan Ponce de León spent the early 1500s, right up until his death, searching pre-colonial Florida for the fountain of youth. Taking ships and many men with him, he scoured the undeveloped new world in search of a cure for aging. Today, we know that this remedy can be found inside of a hypodermic needle. What’s more, it is increasingly available to those who qualify. Like many leading-edge fitness and health trends, though, hormone replacement therapy is not cheap, and requires a patient’s dedication to such a regimen.

Deeply familiar with the national testosterone replacement therapy market, Campbell estimates that the cost of doing a regimen the right way costs $250 to nearly $400 per month. In his view, the benefits are so profound that the cost is more than justified. Not merely an expense, testosterone replacement therapy is an investment in one’s future. As testosterone levels fall, those who maintain normal levels will prosper over those who succumb to the decline of aging under the pressures of the standard American diet and pharmaceutical industry.

For years, testosterone replacement therapy advertisements have filled Las Vegas’ billboards and airwaves. Speaking mostly in euphemism, they identify the key symptoms of low testosterone: lack of energy, virility, and stamina. These concerns understate the full range of functions affected by testosterone, though: Proper testosterone levels improve mental clarity and sharpness, fat loss, confidence, and even mood.

In The Definitive Testosterone Replacement Therapy Manual, and later in an e-mail, Campbell expressed his belief that the world was in the throes of a testosterone-deficiency crisis. Even mainstream medicine has recognized a generational decline in testosterone within the United States.

A 2007 study published in the Journal of Clinical Endocrinology and Metabolism observed an age-independent decline in total testosterone from 1987 through 2004 among 1,532 men. In short, testosterone levels were not falling just because the test subjects aged; for reasons unknown to the researchers, median testosterone levels declined almost 20 percent in fewer than 20 years among the randomly selected test subjects.

Jay Campbell’s passion for health and fitness led him to literally write the book on testosterone replacement therapy in his early 40s. In 2015, Campbell released The Definitive Testosterone Replacement Therapy Manual. Today it is the No. 1 book about testosterone replacement therapy of all time. In his book, Campbell covers the extreme basics of testosterone, such as what it is and its naturally occurring benefits, to debunking junk studies on the risks of testosterone, the ethical objections to testosterone replacement therapy, and the reality of andropause—a “male menopause” where the body’s testosterone production drops off precipitously. Campbell goes on to discuss the forms of available testosterone therapy, from patches and creams to injectables, and possible regimens for doctors to prescribe.

For an optimum protocol, Campbell observes that injections of testosterone propionate every other day, or the longer-acting testosterone cypionate every three to seven days, yield the best results for most users.

He is also forthright about the additional care any testosterone replacement therapy will require. While testosterone replacement therapy is not a reliable form of male birth control, it can negatively affect users’ fertility. As a result, some men using testosterone therapy may wish to use HCG to avoid fertility complications and as thus see all of their sex hormone levels skyrocket, including estradiol, a form of estrogen. Estradiol inhibitors such as anastrozole, commonly sold under the name Arimidex and used to treat some forms of breast cancer, then enter the equation to ensure the proper ratio of testosterone to estrogen. These considerations come before accounting for how testosterone may increase users’ hematocrit, a measure of the blood’s thickness, and require monthly blood donations to maintain it at a healthy level.

In Campbell’s view, both men and physicians are unaware of these changes and their implications. Because of the benefits normal testosterone levels provide, Campbell is enthusiastic about informing men about the benefits of testosterone replacement therapy, and helping them overcome their self-doubt and moral quandaries regarding the treatment.

Even with the costs, initial blood work, and lifetime commitment that a successful testosterone replacement regimen requires, Campbell strongly believes it is most men’s best bet for achieving their potential.

While men have received much of the attention of hormone replacement therapy, there is a burgeoning market for women’s hormone replacement therapy. Campbell’s wife, Monica Diaz, is a Southern California real estate agent and also a fitness advocate. Beginning in early 2016, Diaz began turning her attention to the market for female hormone replacement therapy. In addition to creating an advice group dedicated to the topic, she presented an hour-long group discussion on YouTube and her blog with Campbell, Fabulously Fit Over 40, going into detail about the tests needed for female hormone therapy, what kinds of hormones are recommended, and who should consider if it is right for them.

In Campbell’s observations, the potential and actual markets for women’s hormone replacement therapy far surpass those for men. One of the reasons for this observation is that women can begin some form of hormone replacement therapy around age 30, while men normally must wait longer toward their 40s for their testosterone levels to drop

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enough to warrant medical intervention. Another reason for the women’s market size is the fact that insurance companies, better versed in the realities of menopause and other aging issues facing women, will pay for many forms of women’s hormone replacement therapy. In contrast, testosterone replacement therapy normally is an all-cash affair. Even for women who pay cash for their hormone replacement therapy, Campbell’s work with Diaz reveals that those seeking this therapy are what Campbell describes as “women of means,” generally earning $75,000 per year or more.

For both sexes, there is a final option to wind back the clock of time: human growth hormone, or HGH. While other hormone-replacement regimens can be done for a few hundred dollars per month, HGH— the pinnacle of hormone replacement—is markedly more expensive, whether with a prescription or through the black market. Yet, its effects over a range of uses, from cosmetic needs to injury recovery, make it very attractive.

HGH’s potency as a hormone-replacement therapy has earned it a lucrative position in the black market. Often prescribed to HIV patients to prevent “wasting,” pharmaceutical-grade human growth hormone can be obtained on the black market—a trend that ESPN first observed in December 2004, noted in the article “Fountain of Youth in a Bottle.”

Despite significant crackdowns on black-market distribution of HGH and other HIV/AIDS medications, as reported by Community Access National Network in March 2014, the practice continues today.

By 2012, HGH had escaped from the fitness underground. In an article titled “Hollywood’s Vial Bodies,” Vanity Fair detailed the pervasive use of HGH among Hollywood celebrities and studio executives—largely under condition of anonymity—to recapture younger looks and lost energy. HGH was confirmed to not just be for bodybuilders, but for women in the Hollywood social scene as well who cited improvements to their skin and hair as treatment benefits. These benefits came at a price, as a year of HGH treatment cost more than $10,000.

Despite its high cost, the present day is a relative golden age for HGH. Prior to the FDA’s approval of recombinant, or synthetic, HGH in 1985, the hormone had to be removed from cadavers in minute quantities; obtaining usable quantities of the hormone was equally costly and disturbing. With its new, relative availability, the market for HGH has grown, with healthcare providers acting to feed demand.

One of the foremost providers of hormone therapy in Las Vegas is Cenegenics. For years, the company has been promoted by the distinctive image of Dr. Life, a physician in his 60s who had the physique of an amateur bodybuilder. On its website, Cenegenics offers men monthly shipments of prescribed hormones and supplements. While Cenegenics does not readily disclose its pricing schedule, other online reviews of the company indicate that its hormone replacement therapy and supplement regimen—including HGH, if prescribed—costs hundreds and potentially even thousands of dollars each month.

At a price tag in excess of $1,000 to $2,000, each month, HGH is unequivocally a luxury good. Components of the fitness market may perform like luxury products because of the resources devotees are willing to commit to their passion. The same is true for other products that attract their own fanatics, as BMW devotees pay tens of thousands of dollars for their cars, and modular synthesizer collectors pay thousands of dollars a year for new modules. For an elective, recurring monthly payment of $1,000 to $2,000 per month, there is little question as to

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HGH’s position as a luxury good…however it is obtained.

Future Trends Professionals, and particularly lawyers, are increasingly aware of the mind-body connection. Kenneth White, partner at the Los Angeles-based Brown White & Osborn LLP, wrote about how he overcame his own skepticism of a body-focused approach to mood after reading Why Zebras Don’t Get Ulcers in a May, 2015 post on the blog Popehat. “Before I had been very skeptical of any body-focus as sort of crystal-thumping woo. But not surprisingly, there’s actual science to the concept that our bodies impact our minds.” For lawyers, a group that suffers from mental health and addiction issues at rates that far outstrip the general public, the importance of understanding the mind-body connection is even greater. Professionals have the benefit of affording the means to experiment with and improve their health.

As the science about health and longevity becomes more widely publicized and accepted, the mass affluent will continue to demand an experience from fitness and supplement companies that is congruent with the rest of their lives. Hormone replacement therapy, which Jay Campbell’s book notes is a deeply private and anxiety-inducing issue for men, seems like a natural complement to the rise of “concierge medicine,” essentially a re-branding of the old house call. As seen in the growth of these industries, demand has increased with awareness, and has led to innovations in delivery.

There are still many things beyond the scope of this article that support its proposition that health is now a luxury product. The increased demand for organic food has led to the growth of specialty grocers like Whole Foods, and has made traditional chains increase their organic produce offerings. There are also the subcultures of juicing and blending, which reduce fruits and vegetables to liquid form, and the unlikely schism between both groups’ adherents. Whether in pursuit of youth or the strength needed to be a more formidable adversary—fulfilling the age-old edict that the weak should fear the strong—the demand for high-end products and services in the fitness and health industry will continue its stratification as a luxury market.

J. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, Stark Law, and the Anti-Kickback Statute.

SMALL STEP, BIG PAYOFF IN SB 459 Can A Little-Known Law Solve Nevada’s Opioid Overdose Epidemic?

– By John Seeland, JD, MBA, MHS

In May 2015, Nevada Governor Brian Sandoval signed into law

what was expected to be a pivotal piece of legislation for Nevada’s addiction-recovery community: (SB) 459, otherwise known as the Good Samaritan Drug Overdose Act. The two-part law granted further access to an overdose antidote, naloxone, while extending legal protection to those who inform the authorities about a suspected drug overdose. Under the new law, law enforcement responding to an overdose distress call cannot criminally penalize “good Samaritans” for any low-level criminal offenses they may discover at the scene. This includes supervision violations, alcohol law violations, simple drug possession, drug paraphernalia possession, and being under the influence. (It should be noted, however, that the law does not protect good Samaritans from more serious offenses, such as selling or trafficking drugs.)

A Law for Saving Lives Advocates of the law had hoped that immunity from prosecution would encourage drug users or overdose witnesses to seek immediate help for themselves or others rather than wasting crucial minutes or hours fretting over the potential legal consequences.

To date, 35 U.S. states have enacted similar Good Samaritan Overdose Immunity Laws…and many considered Nevada long overdue to initiate its own. Nevada’s drug overdose mortality rate is the fourth highest in the nation, according to a 2013 report by Trust for America’s Health (TFAH). Between 2009 and 2011, the drug poisoning fatality rate in Nevada was 20.7 per 100,000 people. This represents an 80-percent increase from where the death rate stood in 1999, when 11.5 people per 100,000 fatally overdosed.

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OVERDOSE EPIDEMIC Naloxone: Effective Overdose Antidote Many in the addiction-treatment industry were equally enthused about the law’s expanded access to naloxone, the medication that reverses the effects of an opioid overdose. Naloxone is considered incredibly effective at treating accidental overdoses; so effective, in fact, that some have labeled it a “silver bullet.” It’s also favored for its reputation of being safe and non-habit forming.

“One of the benefits of naloxone is that it has no adverse side affects,” stated Mel Pohl, MD, DFASAM opioid specialist and medical director at Las Vegas Recovery Center (LVRC). “This effectively eliminates the risk of someone causing harm by administering the medication to someone who may not need it to reverse opioid overdose. It’s also fast acting and easy to use. It can be administered through an auto–injector or through a nasal spray—no training is needed. It is truly a life-saving medication.”

The new law allowed physicians to prescribe the overdose antidote to friends and family members of opioid users, a practice that was previously discouraged due to restrictions on third-party prescriptions. Community members who regularly come into contact with opioid abusers, such as first responders (law enforcement and fire fighters), were also granted access.

An Unsung Hero: Where the Law Stands Now Although it has been 15 months since the law was passed in Nevada, relatively few people have been made aware of its existence, including those with the potential to be most affected, like law enforcement officers and the friends and family members of opioid abusers.

In other states where similar laws have been enacted, the overdose fatality rate has been successfully reduced. As of 2014, over 150,000 people across the United States have received naloxone kits and training, and over 26,000 overdoses were reversed, according to reports from the Centers for Disease Control and Prevention.

Doctors Hesitant to Prescribe Another roadblock to the law’s success in Nevada has been doctors’ hesitancy to prescribe naloxone. Though naloxone is not harmful and poses no risk for abuse, it could be rendered ineffectual if it isn’t administered properly. Doctors are concerned that if the drug fails to work in an emergency, they’ll be held liable and could face malpractice lawsuits.

Physicians also worry that recommending an anti-overdose medication will offend their chronic pain patients. Some also believe the law places an unfair burden on doctors to determine which of their chronic patients are at risk of overdose and which aren’t. Pharmacists also face a similar dilemma. While they are sympathetic to the opioid addiction epidemic, as Gustafson explains it, “doctors and pharmacists don’t want to be interventionists.”

The recovery community has struggled to correct the public’s perception that naloxone enables and allows addicts to use more successfully. Mental health experts view addiction as a brain disease and believe people who misuse opioids have little control over their actions. Despite years of published research supporting this claim, however, misinformation and stigma surrounding addiction still persists. “We need to keep people alive long enough for them to seek a new way of life through recovery,” says Gustafson.

Is a Standing Order the Solution?

“The law was passed and then that was it,” she explained in an interview. “There was no education component or marketing plan to accompany it, and that has resulted in a lot of confusion.”

Gustafson and other local advocates have been rallying to remove individual physicians from the equation entirely, opting instead for a standing order signed by Nevada’s State Health Officer. The standing order would allow pharmacists to distribute naloxone without a prescription and grant anyone the ability to easily access naloxone, in much the same way they do a flu shot. Instructions are included with each naloxone kit that detail how to administer the drug in the event of an emergency and many organizations, such as the Foundation for Recovery, offer trainings for those looking for a more in-depth education.

One example Gustafson cited was insurance coverage. “On paper, naloxone is covered by Medicaid, but many pharmacies and consumers aren’t aware of this,” she said.

Most states have enacted statewide standing orders with great success and it is the hope of Gustafson that Nevada will soon follow suit.

“The intent of the law was to save lives,” says Foundation for Recovery (FFR) Recovery Advocate Heidi Gustafson. “And that hasn’t happened.”

According to Gustafson, an advocate for naloxone, there was no “post-passage plan”.

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The Need for Education Although a standing order and education for healthcare workers may be a good first step, a community outreach that extends beyond the medical industry is vital if this law is to have a life-saving effect.

“It typically takes two to three hours to die from an overdose,” states Gustafson. “If everyone carried naloxone with them, can you imagine how many deaths we’d be able to prevent?”

Gustafson then recounts a story of a woman she knew who suffered from an opioid addiction. A few months ago, the woman overdosed and rather than calling 911, her friends drove her to a bus stop and abandoned her there. Laying there unconscious, she died of her overdose.

“If they’d have known about the Good Samaritan Drug Overdose Act, maybe they would have driven her to the hospital instead,” said Gustafson with a shake of her head. “And maybe she’d still be alive today.”

As of July 21, 2016, the Nevada Pharmacy Board unanimously adopted naloxone regulations. These regulation were necessary to implement certain provisions of the states SB 459. These regulations clarify for Nevada pharmacists’ procedures for dispensing naloxone to patients, including those with third-party prescriptions. Final approval is needed by Legislative Commission.

In the meantime, advocates will continue to work toward full implementation of the law.

For those interested in learning how to administer naloxone and prevent an opioid overdose, please contact Foundation for Recovery at 702-257-8199. Foundation for Recovery, located in Southern Nevada, offers a comprehensive one- and two-hour training for groups of 20 or more.

Las Vegas Recovery Center (LVRC) also offers help to those wishing to seek recovery from an opioid use disorder. With campuses in northwest Las Vegas and Henderson, LVRC is equipped to help chronic pain and addiction sufferers across the Las Vegas Valley. Visit http://lasvegasrecovery. com/ or call 702-515-1373 to learn more.

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Continued from page 25 8. Collaboration and Specialization Although this sounds like self-promotion, I truly believe there is no better way to practice than to collaborate with those you believe to be the best specialized trial lawyers in your jurisdiction. Not only will this give you the backing you need when negotiating your case, but it also gives you the resources and experience of those with whom you associated.

In Response To The Resurrection Of The American Trial Lawyer:

The Disappearance Of The Civil Jury Trial – By Robert T. Eglet, Esq.

Eglet Prince is built on the concepts of specialization and collaboration.

We limit our practice to personal injury, product defect, wrongful death, and insurance bad faith so that we can be the most experienced in those areas. We collaborate with other law firms in the handling of significant injury cases. In some instances, our collaboration is a result of a Goliath-type defense mounted by the other side. More often it results from lawyers seeking us out that want an extra advantage. We are a trial firm that handles complex cases that most other personal injury firms do not have the resources, time or experience to prepare for or try. Collaborating allows the full value of the case to be obtained for the clients. Over 90 percent of Eglet Prince cases are referred to us from solo lawyers and law firms, both locally and from around the world, who ultimately receive a greater net fee by bringing us into the case. We also have collaboration agreements with law firms who we refer smaller less complex cases, and mentor and assist them when necessary in their trials or trial preparation.

There exists an opportunity for several young energetic lawyers or law firms to create collaborative agreements with law firms who can not or will not employ the resources necessary to try these small and mid level cases before juries. In my opinion, it is the only way insurance companies will begin settling these smaller and mid level cases for their actual value. If we work as a team in our legal community, the value of our clients’ cases will be reflected in the offers the insurance companies eventually make.

9. Eradicating the Disease of Tort Reform How many times will we hear the insurance industry “cry wolf ” until the truth is revealed to the American public? The cries are always the same: “Americans are lawsuit happy.”

“Frivolous lawsuits are clogging our courts.”

“Juries can’t be trusted because they routinely return outrageous verdicts that far outweigh the actual damages.”

“Medical malpractice lawsuits drive up healthcare costs for everyone.”

“Malpractice lawsuits are forcing doctors out of practice or to leave our state for states with damages caps.”

“Malpractice lawsuits drive up a doctors malpractice insurance rates, and caps will lower their rates.”’

All of these myths are propaganda invented by big business and the insurance industry, both of which want to scare Americans into relinquishing their 7th amendment liberty.

The infamous McDonald’s hot coffee case is the first example that proponents of tort reform love to cite.

“The lady goes through a fast food restaurant, puts coffee in her lap, burns her legs, and sues and gets a big settlement. That in of itself is enough to tell you why we need to have tort reform,” quoting former U.S. Congressman, Republican presidential candidate and present Governor of Ohio, John Kasich, while he was a member of congress.

The actual facts bear reciting: 1. Stella Liebeck suffered third-degree burns to her inner thighs, genitalia and groin and was hospitalized for eight days requiring numerous skin grafts.

2. Liebeck was a passenger in the vehicle being driven by her grandson.

3. Liebeck’s grandson pulled over and stopped his vehicle so Liebeck could add cream and sugar to her coffee.

4. The Ford Probe of Liebeck’s grandson had no cup holders, so LIebeck placed the cup between her legs.

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In Response To The Resurrection Of The American Trial Lawyer:

The Disappearance Of The Civil Jury Trial

5. While trying to get the lid off, the coffee spilled on her sweatpants, immediately soaking through to her skin.

6. Liebeck went into shock and her grandson rushed her to the emergency room.

7. Prior to this, McDonald’s received more than 700 complaints of serious burns caused by their coffee being served too hot.

8. McDonald’s policy was to serve coffee at a temperature between 195 and 200 degrees, despite knowing that temperature would cause third-degree burns in seven seconds or less.

9. Liebeck tried to settle the matter with McDonald’s before hiring a lawyer for merely her medical expenses of less than $20,000, an offer vehemently rejected.

10. An independent mediator recommended McDonald’s settle the case for $225,000, which McDonald’s rejected.

11. Liebeck required 2 more years of additional medical treatment which greatly increased her medical expenses.

12. The jury awarded Liebeck $200,000 for her compensatory damages, but found her 20 percent comparatively negligent. Thus, reducing the award to $160,000.

13. The jury assessed punitive damages against McDonald’s of $2.7 million, which was equal to roughly two days of McDonald’s coffee sales profits. However, the trial judge reduced this to $480,000, but the judge found that assessing punitive damages against McDonald’s was appropriate to punish and deter the company for its wanton conduct and to send a clear message to McDonald’s that corrective measures were needed.

14. McDonald’s appealed and the case settled for an undisclosed amount widely reported to be between $400,000 and $600,000.

When the true facts of the case are reported, most people recognize that this case was neither frivolous, nor was the verdict excessive.

The playbook for tort reform was quite simple. Major domestic and foreign corporations donate vast sums of money to the U.S. Chamber of Commerce and other lobbying groups, and Karl Rove and others direct that money into to the campaign coffers of politicians willing to back tort reform. However, in 1995 President Bill Clinton vetoed a tort reform bill that favored big business, but would have devastated the American consumer and eroded our 7th amendment rights. Rove and his cronies responded by taking tort reform to state legislatures. The chamber and big business

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began funding state political races and running ads under the names of associations disguised to look like groups of “concerned” citizens. The ads hammered into the American psyche the lie that frivolous lawsuits were ruining our economy and our country, using the distorted truth about the McDonald’s hot coffee case and other cases they created out of thin air.

Numerous states passed tort reform bills stripping the public of its 7th amendment rights. When state supreme courts started finding many of these tort reform bills unconstitutional because they infringed upon a citizen’s right to trial by jury, Rove and company began a new strategy of targeting state supreme court judges in their re-election campaigns who had upheld the 7th amendment liberty, replacing them with judges who were willing to turn a blind eye to the unconstitutional tort reform legislation passed by the state.

The fact is, Americans do not have a frivolous lawsuit problem. The Rand Institute for Civil Justice, recognized as one of the most independent and respected think tanks in the country, found that only 10 percent of people injured by the actions of others seek compensation and only 2 percent of them file lawsuits. Since 1991, tort cases have made up only 5 percent of all civil cases filed. Additional reports have proved that while our population has grown, personal injury lawsuits have decreased by more than 25 percent between 1999 and 2008 alone, and they represent only 1.3 percent of all civil dispositions. Study after study show that frivolous lawsuits are rare, and nearly non-existent. Even Victor Schwartz, a historically huge proponent of tort reform, admitted: “There is no question that it is very rare that frivolous suits are brought against doctors. They are too expensive to bring.”

Using a campaign of deception, tort-reform advocates have turned injured victims into greedy liars and their lawyers into unscrupulous, opportunistic parasites. What big business and the insurance industry doesn’t tell you is that multimillion-dollar verdicts are rare. The Bureau of Justice Statistics found that the median plaintiff verdict is well under $50,000, and only 5 percent of plaintiff verdicts are a million dollars or more.

Healthcare malpractice settlements and verdicts make up only 0.3 percent of national healthcare costs. The National Association of Insurance Commissioners agrees that the total amount of money spent annually defending medical malpractice claims and compensating victims is $7.1 billion.

What is actually driving healthcare costs to rise is preventable medical errors, which account for an additional annual cost of $29 billion of the $2.2 trillion of healthcare spending.

Over the past two decades, the number of licensed physicians has significantly increased and is at an all-time high. The number of practicing physicians per number of people in our country has never been higher. From 1990 to 2010, the number of physicians increased by 40 percent, while the

In Response To The Resurrection Of The American Trial Lawyer:

The Disappearance Of The Civil Jury Trial

increase in the U.S. population grew by only 18 percent. The number of physicians in every state has increased, and in most states the increase in physicians has either matched or outpaced population growth. There is no data to support the claim that capping medical malpractice damages helps to attract or keep doctors. In reality, there are many more doctors practicing in states without damages caps than in those with caps.

There is no evidence that medical malpractice lawsuits drive up malpractice premiums. The National Bureau of Economic Research found that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Further, Americans for Insurance Reform found that “rate increases were rather driven by the economic cycle of the insurance industry, declining interest rates, and investments.” And, damage caps do not lower premium rates for physicians. Insurance companies pay less money for malpractice clams in states with damages caps, but they do not pass those savings on to doctors by reducing their premiums. After the state of Texas passed legislation capping damages in healthcare malpractice cases in 2003, the nation’s largest medical malpractice carrier told the Texas Insurance Commissioner that caps had a minimal impact on premium rates, while the company announced a 19 percent increase in physicians’ malpractice insurance rates.

In fact, the American Insurance Association has acknowledged that, “we have not promised price reductions with tort reform.”

Tort reform is a fraud against the American people. It benefits neither the public, nor healthcare providers. It simply increases profits for insurance companies and insulates domestic and foreign corporations from compensating people whom they have caused harm. The fraud must be exposed, and all tort reform legislation repealed.

When a person who is injured by the negligence or defective product of another takes their case to trial, they are engaging in an extraordinarily heroic act. To file a lawsuit and litigate through trial is not a simple undertaking. The plaintiff will be attacked by the defendant in all sorts of ways, and the case will likely drag on for years. In the meantime, their life will be put on hold. The willingness to go to trial to gain justice is heroic. This truth must be made known to our citizenry. The public must be made to understand that when a person wins a civil case, they win it for all of us, as well as gaining justice for themselves.

10. Predictive Analytics “For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” — Justice Oliver Wendell Holmes Jr. Predictive analytics is technology that learns from experience and from data to predict the outcome and/or behavior of individuals in order to

drive better outcomes or better decisions. It is essentially “machine learning,” which is exponentially getting faster, better and more efficient. Computers can now look at tendencies and trends and can actually learn. By leveraging the quantitative strength of computers, lawyers can more accurately forecast how events will play out in a case and allow lawyers and their clients to avoid costly mistakes, get a better vision of the strengths and weaknesses of a case, and increase the odds of obtaining a favorable outcome.

Predictive analytics uses advanced machine learning algorithms and proven rigorous statistical methods to forecast the probabilities of various outcomes. The probability forecasts produced can aid settlement negotiations and decisions about trial. Potentially, this could save billions of dollars in settlement errors and mitigate the risks of trial. Statistics show an estimated 60 percent of legal cases have settlement value errors. As I noted earlier, 99.75 percent of civil cases are settled. Jury trials today are avoided at all cost due to the perceived unpredictability of a jury.

The practice of law includes prediction. Lawyers predictively answer client questions daily such as, “What are the odds of winning this case, and how much do you think this will cost me?” Even Justice Holmes envisioned over a century ago that “the number-crunching masters of economics” will trump the vast majority of lawyers who still rely solely on experience, historical case information, and intuition to predict the outcome of a case.

Even the most exceptional lawyers are inherently limited in their capacity to retain and process the information necessary to make well-informed judgments. Computers, while lacking the ability to frame interesting questions or draw conclusions as lawyers, are far better at storing, processing, and summarizing large volumes of information.

The technological advancement in computing power and data science has ushered in a new era…the era of Big Data. Google, Facebook, IBM, and countless other technology companies, use these new capabilities to market products and ideas with a level of effectiveness never before seen.

Predictive analytics is now universally accepted and used widely by many industries to predict outcomes and make better decisions, and was a major factor in predicting the last presidential race. It is imperative that trial lawyers catch up to this data-centric approach found in almost every other industry. The common practice of heavy weighting historical trial outcomes fails to adequately capture present conditions, hampering the accuracy of its predictions. Predictive analytics, unlike historical performance data commonly used for this purpose, takes into account current public sentiment. Real-time predictive analytics provides a great advantage, creating a tool that allows trial lawyers to test the core case arguments identified during discovery against a series of juries, representative of the available jury pool in the location where the trial will take place. A resulting predictive model can be used to inform the settlement negotiations and aid in the decision of moving forward to trial. When cases proceed to trial,

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The Disappearance Of The Civil Jury Trial

the resulting model can be used during jury selection, to insure maximum probabilities of a favorable decision and the largest possible verdict.

When Big Data supplements a community values and beliefs survey contained within a typical jury questionnaire, more information about a juror’s community is available to the lawyers. This increase in information, in turn, provides trial lawyers with more information about what juror traits are beneficial. Research shows that an individual’s online presence can predict that individual’s personality, and Big Data provides more data points on how to determine which individual jurors should or should not be selected. Once the parties determine a community’s attitudes and values, trial lawyers can determine what qualities and traits are desirable in jurors within that community. Trial lawyers can then combine these qualities and traits into so-called “bad juror” or “good juror” profiles to create “persona jurors.”

If we as trial lawyers can pool our data and keep a collective bank of case information and trial and settlement outcomes, the better and more accurate all outcomes become. Data is always predictive, and as the data we collect grows, we can put that into a predictive model to extract the “golden egg,” or prediction model, that will be the key to making better decisions.

The more data we collect and input, the higher the statistical significance the outcomes will be and the more we can apply this to building our trial stories, and forecasting trial outcomes with more accuracy.

Intuitive and experiential expertise is losing out to number crunching. In fact, that competition has already been lost. Quantitative analysis has been openly embraced in virtually every major business sector…except law.

Shortly, there will be a seismic shift in the legal profession. The smartest, savviest lawyers are now supplementing their practice experience and intuition with insights obtained from big data to best inform their judgment.

Predictive analytics and data-driven strategies will be paramount to the legal industry of the not so distant future. Technology that leverages legal data will move the practice of law forward in new directions. There are more tools than ever to facilitate this paradigm shift. Big data and predictive analytics can be used by trial lawyers to improve settlement evaluations, fine-tune trial stories, and make sound decisions of whether to settle or take a case to trial.

For any of you “Trumpsters” who haven’t read a book or current events journal in 30 years, and get all of your information from watching “the shows” and movies, I’m talking about “Moneyballing” trial practice.

The Beginning?

Going back is not an option. Moving forward is always the only path. Professionals, just like people, who live in the past and long for the so-called good old days, are already dead. They just don’t know it yet.

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It has been nearly 30 years since I walked into a courtroom for the first time to try a case. Yesterday’s art and science of trial work is as extinct as the Yellow Pages. When I began trying cases, my entire trial presentation was hand written on yellow legal pads. My demonstrative exhibits were blow-ups glued to white cardboard. All letters, legal briefs and pleadings were dictated into hand-held mini cassette recorders and the tapes were transcribed by legal secretaries. I did all my legal research in an actual library with real books. We had to actually file hard copies of our pleadings at the courthouse and physically serve them on opposing counsel. Today, my firm uses no paper, except when the trial courts makes us present a set of exhibits on paper for their records. We have no legal secretaries, only paralegals. All of our lawyers do all their legal research from their computers and type their own letters (or more often, emails), legal briefs and pleadings. We take nearly all out-of-town depositions from the comfort of our officers or conference rooms using digital conferencing. Trials are prepared and presented with laptop computers, iPads and massive digital monitors, using trial presentation software and applications…many of which we have developed within our firm. Instead of legal secretaries, file clerks and runners, we employ trial presentation and animation designers, software programmers and e-discovery miners.

Trying to go back is like wearing a 30-year-old suit that looked good when you were 27. It doesn’t fit, the fabric sucks, and you will never look 27 again, so go buy a new suit that fits the body you have today. We all need to adapt to the present and anticipate our future circumstances. We must re-think the way we prepare and try cases, as well as how we manage the business of law, if we want to stay relevant and survive the future of trial practice.

I believe in the jury trial. I define who I am as a “trial lawyer.” But, I also understand that in order to resurrect “The American Trial Lawyer,” we must possess not only the will to try more cases, but the willingness to change the way we try them.

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Robert Eglet has tried more than 120 civil jury trials to verdict, including some of the largest personal injury verdicts in the country in 2007, 2010, 2011 and 2013. Eglet was named National Trial Lawyer of the Year in 2013 by the National Trial Lawyers Association and National Lawyer of the Year in 2010 by Lawyers USA. He has been honored twice by the Nevada Justice Association as Trial Lawyer of the Year (2005, 2012) and in 2013, Eglet received the National Thurgood Marshall Fighting for Justice Award. The National Law Journal has named Eglet’s firm as one the “12 Best Plaintiff ’s Law Firms in the Country” and one of the “50 Best Trial Firms in America.” Eglet lectures regularly on trial practice and innovation in the courtroom.

HUMOR //

Fall 2016

“Is this the toughest gig in town?

You be the judge!”