By Evan J. Wallach

1A: What Lawyers Do

1A1: The Premises Of The American Legal System
   

        The essence of our system of law springs from the belief popularized during the Enlightenment that citizens of a state are entitled to a predictable relationship with the government. It rests on the supposition that the law will reign supreme and that it will be administered fairly and impartially. There has never been a perfect application of the idea, but it functions best in nations where an educated citizenry has an emotional and philosophic commitment to the law; that is where the people know and believe in the rules which govern them.

In the United States, the law may be found in the practices and customs of the people, accepted by them as rules by which they must abide to maintain a civil society. That body of knowledge is commonly referred to as the “common law” and it descends in concept from the English system upon which our initial government was based.

The common law may be eliminated or changed by the will of the people expressed in written form by their elected representatives. That expression of will is embodied in statutory law. The highest form of statutory law is the constitution, the document by which a state or nation constitutes its system of government. To the extent that the common law or a statute conflicts with a constitution it is invalid.

Over the course of our nation's existence, through court decisions and after a bloody civil war, we have accepted the principle that the Constitution of the United States is the supreme law of the land, and that federal law overrides state law in areas where the federal government has been given the responsibility for governing.

Thus, you may see a criminal matter which has been decided by Nevada's Supreme Court, heard once again in a federal district court. The two systems often overlap, and it is that tension and cooperation between them which serves as yet another one of the checks and balances with which this nation was blessed by the foresight of the authors of our system of governance.

1A2: Types Of Practice

The practice of law may be roughly divided into two areas; civil and criminal. Within those two areas are numerous subdivisions. This discussion will try to give you a brief overview of the type of work various attorneys do. It is designed more to give you some insight on the types of attorneys to contact as sources in various areas of the law, than to provide any comprehensive explanation of what lawyers actually do.

1A2.a: Civil Practice

Litigators

Litigators are those lawyers who file or defend civil lawsuits. Their practice is as varied as human experience.

Generally, litigators make their living by communicating their position to judges and juries. Often, they are deeply involved in their particular cases of the moment. As a result, they can be very good sources both for background and quotes as long as they are not asked to act outside the ethical guidelines governing contacts with the media.

When you hear about a lawsuit of interest the easiest way to find the lawyers for all the parties is to look at the pleadings in the county clerk's office. If you know the name of any party (a plaintiff or defendant) the clerk can find the file. You should review the file, looking at documents which follow the initial complaint and answer. Those documents should be accompanied by a “receipt of copy” in which the lawyers for all parties acknowledge having received a document. That list should give you the names and addresses of all the attorneys involved in a case.

Make sure you get all sides of a story. Often there are multiple plaintiffs and defendants in a case. Just because an attorney represents one defendant doesn't mean you will receive a fair analysis or an accurate portrayal of the position of another defendant.

Commercial Attorneys

Commercial practice is as varied as litigation. Commercial lawyers generally do work related in some fashion to business transactions, but that can include anything from a home sale to multibillion dollar corporate financing. Whenever a change in business status occurs (the opening of a new high-tech employer, the sale of a hotel, or creation of a regional shopping center) you can bet commercial attorneys have been involved.

If you can convince them to omit the legalese, commercial lawyers can provide a lot of good business stories. Start by asking the corporate spokesperson what law firm is representing their interests. Then, call the attorney in charge and ask for a background briefing. As a business reporter you'll have a much better understanding of important transactions.

Specialized Practices

Numerous attorneys work largely or solely in a particular area of the law. In Nevada, areas of particular interest include gaming, environmental, bankruptcy, mining, entertainment, and patent/copyright law. If you need expertise in a particular area ask the people who use attorneys in that area. The gamers know the most effective gaming attorneys, the environmentalists and the chemical companies the most capable environmental lawyers, etc.

These lawyers are specialists. Especially in scientific areas, they tend to communicate in acronyms. Don't let them get away with it. Ask for an explanation of everything. Once they realize you really want to help the public understand what they're doing, you'll find a fruitful source for explaining the complexities of life in this highly regulated society.

In-House Counsel

Many companies have full time attorneys on staff. Their duties may involve everything from a highly specialized practice in the equivalent of a large civil practice law firm to the type of work performed by a civil general practitioner. Normally, the in-house counsel will have considerable expertise in the law which governs the product or services sold by the company. That is especially true of banking and utility lawyers.

If you have questions about banking or utility law, you may be able to get the quickest and most accurate answer by telephoning in-house counsel at a bank or utility. Just remember to seek more than one opinion when the matter is controversial. You can most often get the other side from attorneys within the governmental entity charged with regulating the particular industry of interest.

1A2.b: Government Lawyers

The Federal Government

The federal government tends to hire and retain bright, highly motivated career attorneys. They are often constrained, however, from commenting on matters of interest. If they agree to give you background information, make sure you honor that understanding; to identify that source could ruin a career. Federal attorneys either work for the Department of Justice or for a separate department or agency of the United States.

The Department of Justice employs both civil and criminal attorneys. The Department of Justice is represented in Nevada by the United States Attorney (USA). The USA has offices in Las Vegas and Reno. She or he is a political appointee who serves at the pleasure of the President. Generally, the person to serve as USA is suggested by the senior U.S. Senator of the party in the White House (or the senior member of the House if no senator is of the same party), and after back-ground investigations is nominated by the administration. They are subject to confirmation by the Senate.

The U.S. Attorney is generally responsible for all federal criminal and civil matters in Nevada. Those include drug cases from the Drug Enforcement Administration (DEA), racketeering cases from the Federal Bureau of Investigation (FBI) and counterfeiting cases from the Secret Service. They may also include a wide variety of crimes which fall within the jurisdiction of other agencies. For example, Nevada is home to a large wild horse population which is partially the responsibility of the Bureau of Land Management (BLM). When the BLM believes someone has harmed those horses, it is the U.S. Attorney's office which prosecutes the crime.

The United States Government is also a large employer and contractor. Like any business, it defends and pursues suits for breach of contract. Like any employer, it deals with civil claims from its employees. In general, the civil division of the U.S. Attorney's office represents the United States in such matters.

Departments And Agencies

In addition to the Department of Justice, each of the myriad entities found in the federal government is populated by lawyers. Within the Department of Defense (DOD), for example, are found attorneys who work directly for the DOD. There are also attorneys (both civilian and military) in each of the branches of the armed forces. Within each branch may be found lawyers specializing in contracts law, criminal law, labor law, international law, and other lawyers who give legal assistance to military personnel. In addition, a base commander, such as the general in charge of Nellis Air Force Base, will have his own legal advisor, as well as a staff of lawyers to work on local legal problems.

Multiply that example by the numerous federal departments and independent agencies (the Federal Communications Commission (FCC) and Federal Trade Commission (FTC), for example), and you have some idea of just how many lawyers work for the federal government. Many of them have a very high degree of knowledge in an extremely specialized area. For background on a particular issue (keeping in mind that you may be getting only one side of the story) you can't do better. Just be sure to ask who can give you the other side of the story.

State Government

Nevada's chief lawyer is the Attorney General (AG). He or she has offices in Carson City, and a considerable branch office in Las Vegas. The AG is an elected official who must face re-election every four years.

The Attorney General provides counsel and representation to most branches of state government as well as to numerous boards and commissions. He or she also is charged with enforcing the Open Meeting Law. Since it often the Attorney General’s clients who are charged with violating the law, the potential for conflict is considerable.

County Government

Each county in Nevada is represented by a District Attorney (DA) elected for a term of four years. The size and competency of the District Attorneys' offices vary, although the two are not necessarily synonymous.

Like the Attorney General, the DA wears two hats: 1.) functioning as the government's main arm of criminal prosecution; and, 2.) as counsel for the county on all civil matters.

District Attorneys are charged with enforcement of the Open Records Law. There have been no criminal prosecutions for violation of that law.

The District Attorney or a deputy can prove a very good source of information regarding complex civil issues. Often there is a high level of expertise needed on such issues as land condemnation or regulations governing the conduct of certain types of businesses.

City Government

Some but not all incorporated cities have a lawyer who is different than the District Attorney. That position is appointive and provides enforcement of city ordinances. It involves criminal practice as well as representation in civil matters.

1A2.c: Criminal Defense Lawyers

In addition to the areas discussed above, one vital role for attorneys is to represent those persons charged with a crime. It is a necessary corollary of our belief in an adversary system of justice that criminal charges must be proven by the government (and not innocence by the accused), and that a person charged with a crime must have counsel to protect the rights guaranteed in our society.

Unfortunately, to the extent the criminal justice system is overloaded with cases, it is subject to abuse and manipulation. Experience tells us that some innocent persons will be shuffled through the system and bludgeoned by the threat of more severe punishment into pleading guilty to a crime they did not commit. It is the role of criminal defense counsel to ameliorate that problem and to provide an accused with vigorous, competent, and honest representation.

The work tends to be fact specific. That is, the law is relatively well established but the facts and evidence vary greatly from case to case. Because criminal defense lawyers (and prosecutors) work with facts, their cases are often of more immediate interest to the public and contain more color.

Public Defenders

When a person is accused of a crime they may obtain counsel either privately or at public expense. If they cannot afford a lawyer one is appointed to represent them. In the larger counties, that person is a Public Defender.

The Public Defender is an appointed official charged with providing representation in serious criminal matters. As a general rule, most attempts to exclude the press from courtrooms come from Public Defenders who see the tactic as another ground to be preserved for appeal.

Private Defense Counsel

Nevada has a number of well known criminal defense attorneys who handle high profile cases around the United States. There is a much larger group of lawyers, however, who do the day-to-day work of representing clients and protecting their interests in the numerous criminal cases before our courts.

1B: The Courts And The Judicial System

Every state has two judicial systems with overlapping jurisdiction. Each state has its own system of courts with trial courts handling general matters, and some system of courts lower than trial courts, as well as courts to which appeals may be made from the trial courts. In addition, each state is part of the system of federal courts.

1B1: The Federal Court System

The federal system consists of different levels and types of courts governed by uniform rules. Those rules of procedure and evidence allow a practitioner in one district to have a pretty fair idea of how things work in another federal court.

Magistrates

A Magistrate is a federal judicial officer appointed for a term of eight years. A Magistrate hears criminal misdemeanors and preliminary hearings and non-dispositive civil motions. In addition, with the consent of the parties, the Magistrate may decide civil cases.

In Southern Nevada the Magistrates are Lawrence Leavitt, Robert Johnson, Peggy Leen, and George Foley. In Northern Nevada the Magistrates are Robert McQuaid, and Valerie Cooke.

United States District Courts

United States District Courts are the federal courts of general jurisdiction. They hear most cases over which the federal system has jurisdiction. Federal District Court Judges are appointed for life by the President with the advice and consent of the Senate. They are nominated by the senior Senator or Representative of the party in the White House when the vacancy occurs.

At this writing Nevada has ten District Court Judges; Roger Hunt (Chief), Philip Pro, Kent Dawson, James Mahan, Robert Jones, Lloyd George, Larry Hicks, Brain Sandoval, Edward Reed Jr., and Howard McKibben.

Bankruptcy Courts

Bankruptcy Judges are appointed by the President for a term of fourteen years. They hear all matters filed under the federal bankruptcy code.

At present Nevada's bankruptcy Judges are Gregg Zive (chief), Linda Riegle, Bruce Markell, and Mike Nakagawa. 

Other Federal Courts Including Military, Tax, Claims And Admiralty

Numerous other specialized federal courts and judges may be found. There is a United States Court of Claims, there are Admiralty Courts, and the military has an entire system of courts, including a Court Of Military Appeals. Most of the cases in those courts which affect Nevada will be heard in Washington, D.C.

Administrative Law Judges

Many administrative agencies also maintain systems for adjudicating claims before an Administrative Law Judge. An administrative matter is governed by the Administrative Procedure Act as well as by the substantive law governing the particular agency. Often, before a plaintiff may sue in a federal court, all available administrative remedies must be exhausted.

Courts Of Appeals

The federal judicial system is divided geographically into eleven circuits. Nevada is in the Ninth Circuit which consists of California, Oregon, Washington, Hawaii, Idaho, Arizona, Alaska, Montana, and Nevada.

When a party is dissatisfied with a result in a federal district court, a bankruptcy court, or in certain other matters, they appeal to a Court of Appeal. That court for Nevada is commonly referred to simply as the Ninth Circuit.

Appeals before the Ninth Circuit are governed by the Federal Rules of Appellate Procedure which establish the length, contents, and layout of a brief; the time for filing; and numerous other requirements.

The United States Supreme Court

The United States Supreme Court is the highest court in the land. It sits at the top of a judicial pyramid which encompasses a branch coequal under the Constitution with the legislative and executive. Its most important function is as the final arbiter for interpreting the Constitution.

1B2: Nevada's State Courts

The Nevada Constitution (Art. 6 §1), provides for a court system consisting of a Supreme Court, District Courts, and Justice Courts. Also, it permits establishment of Municipal Courts.

Municipal Courts

Municipal Courts are created by Nevada's towns and cities to enforce city ordinances, abate nuisances, and keep the peace. They also try small civil cases below $2,500 to collect taxes and damages to city property. NRS §266.555. In large counties they have jurisdiction over juvenile traffic offenses.

Justice Courts

Justice Courts have jurisdiction over civil cases where less than $10,000 is at issue, and misdemeanor criminal cases. NRS §4.370. The civil cases, commonly called small claims can cover a wide variety of matters such as breaches of contract, personal injury, and mechanics liens. In addition, Justice Courts handle evictions, garnishments of wages, and certain domestic violence matters. The justices of the peace also act as a court of initial review for testing criminal indictments, setting bail, and issuing warrants for searches and arrests.

State District Courts

District Courts are Nevada's courts of general jurisdiction. They hear all civil cases over $10,000 and all felony criminal cases. District Court judges are elected officials.

There are nine judicial districts in Nevada and they vary widely in size. Clark County has thirty-seven district court judges (who are assisted by twelve commissioners and masters), family courts, a probate commissioner, and a discovery commissioner. Some rural areas share a judge among three counties.

Each district court has a clerk who maintains the court's records. Unless sealed, they are open to public inspection and often are a fruitful source of information. In addition, while a judge will not discuss the merits of on going litigation, you may find the courts very receptive to discussing societal problems in general and the needs of the courts and the legal system in particular. In any case, as long as you contact the judge in advance, it never hurts to request an interview. If the court thinks a topic cannot be properly discussed, you'll know it.

The Nevada Supreme Court

The Nevada Supreme Court consists of seven judges elected for six year terms. They sit in Carson City, and in addition, hear some Southern Nevada cases in Clark County. The Court hears appeals from decisions of District Courts, as well as requests for certain types of orders and occasionally requests for rulings about the nature of the law.

The case records in the Supreme Court clerk's office are public records. If you are interested in a case, the briefs in an appeal will contain the parties' positions regarding the facts as well as a brief statement explaining what they contend are the issues on appeal. Once filed, those briefs are privileged statements and as long as they are accurately quoted they can be reported without fear of liability.

1C: How Lawyers Are Regulated

Nevada lawyers are governed by the State Bar of Nevada, by the state and federal courts, by statutes prohibiting unlicensed practice, and by rules governing general conduct and ethical obligations to clients and the system.

The State Bar of Nevada has a full-time lawyer called the State Bar Counsel. If you have general questions about how the system works and what rules govern lawyers you can contact that attorney at (702)382-2200.

Questions about conduct by a specific attorney will be harder to answer. Most lawyers are reluctant to criticize their peers and the State Bar Counsel will not comment about on-going investigations.

You can get some idea of the requirements which govern counsel's conduct by consulting the Nevada Rules of Professional Conduct. They include such basic requirements as competence, avoiding conflicts of interest, pursuit only of meritorious claims, truthfulness in statements to others, and providing pro bono (free) service.

In addition, Judges are governed by a separate Code of Judicial Conduct which is administered by the Commission on Judicial Discipline. Again, those rules state basic requirements such as impartiality, integrity, diligence, and independence.

1D: The Anatomy Of A Case

1D1: How A Civil Case Works

Civil cases are governed by Rules of Procedure which include Local Rules, Rules of Civil Procedure, and on appeal, Rules of Appellate Procedure. They may also be affected by Supreme Court Rules which govern the conduct of all lawyers.

A civil case begins when the Plaintiff files a Complaint. The Complaint should state the facts about which the Plaintiff is complaining, why the Plaintiff thinks he or she has been wronged, and the relief sought.

The parties engage in a process called discovery in which they try to find out the facts known by the other side and by witnesses. Discovery may include written questions or requests for documents, as well as requests to admit certain facts as true.

At various times during the case the parties may file motions. A motion is a request to the court to enter an order. The motion may be one to dispose of the case based on a claim that one party is entitled to win as a matter of law, or that based on discovery the facts show the party is entitled to win. It may also be a request for an order requiring a party to do something such as provide complete answers to a discovery request or to answer certain questions.

Motions can be a very useful source of background material about a case. They often give you both sides' positions and they may contain useful documents. Because motions are filed with the court they are privileged documents and you have a defense to any action for defamation as long as you quote from them fairly and accurately. Remember, however, that the privilege only supplies after the motion has been file stamped in the clerk’s office.

1D2: How A Criminal Case Works

Criminal cases are regulated by the Constitutions of the United States and the State of Nevada, by statutes and Rules of Criminal Procedure, and by additional rules governing the conduct of attorneys.

A criminal case begins when an “information” is filed charging a crime, or when a Grand Jury issues an Indictment. Grand Jury Indictments must be utilized to charge a capital or infamous crime charged by the United States.

Nevada permits prosecutors to charge crimes upon an information as long as a preliminary examination of the charge has taken place before a justice of the peace or a magistrate. NRS §173.035(1)(a). Under some circumstances the case may proceed "...upon the affidavit of any person who has knowledge of the commission of an offense." NRS §173.035(2).

The process of obtaining information from the prosecutor in a criminal case is also called discovery, but it is narrower than in civil cases. In a criminal case the prosecutor has a duty to disclose known facts and information which may assist the accused's defense. Documents or other tangible objects may be compelled and depositions may be taken, however, a court order is necessary. NRS §174.175.

By motion, defendants can also obtain copies of recorded statements made by them, or results of physical or mental examinations, scientific tests or experiments in the prosecution's possession. Defendants cannot get certain documents prepared by state agents in connection with investigations or prosecution of cases, or certain witness statements. NRS §174.245.

Criminal cases include a procedure called an arraignment at which a plea is entered. In Nevada, a court may accept only pleas of guilty, not guilty, nole contendere or not guilty by reason of insanity. Bail is then set depending on the risk of flight by the accused. Preliminary hearings are conducted to determine if probable cause exists to bind the defendant over for trial.

Most motions in criminal proceedings are made before trial. They include motions to suppress evidence, for a transcript of former proceedings, for a preliminary hearing, for withdrawal of counsel, or for determination of other issues.

Grand Jury proceedings are secret by statute. Indictments and informations are publicly filed documents. The contents of informations must include the names of all witnesses known to the District Attorney at the time of the filing and other names must be added before trial as they are learned. The information must be a plain, concise and definite written statement of the essential facts constituting the offense charged. NRS §173.035.