Strategies, Challenges, and Answers

Every Case Is Different

In an earlier post HERE, we described some of the things an attorney must consider in deciding whether a case filed in state court must or should be removed to federal court.  Having just completed a trial in federal court I wanted to give my impressions about that experience.

Nevada fed courthouse Unlike most of my recent trials, in this particular case, I represented an insurance carrier seeking subrogation recovery of a worker’s compensation payout.  My client was a Plaintiff-Intervenor, working in conjunction with a PI attorney who was pursuing damages that had not been paid by the worker’s compensation carrier.  The case ended up in federal court because of diversity.  The Defendant was from the State of Washington, the injured worker a truck driver operating out of Nevada and the Worker’s Compensation carrier a Nebraska Corporation.  Claimed damages were well over the $75,000 jurisdictional threshold.

The controlling law was an interesting mash-up.  The accident itself happened in Wyoming meaning that Wyoming law controlled on liability.  Nevada Worker’s Compensation law controlled regarding the benefits due to the injured worker by the worker’s compensation carrier.

Without going into the details of the accident, I came to understand more the frustrations of a plaintiff’s attorney in the federal court system.  I think I also came to better understand the advantages to a defendant in the federal court system.

The conduct of the trial was very different than what happens in state court.  The trial was conducted in a very officious manner, buttoned-down, full of starch and exceptionally formal.  Contrast that with a state court trial in which the judge, at least in Nevada, is popularly elected to the seat.  In Nevada state court, in my experience the judge caters much more to the jury and its needs than did this particular federal court judge.  The rules were followed much more strictly, which worked to our advantage in some instances and against us in others.  One of the disadvantages was that the federal judge was much less familiar with the state workers’ compensation system and we were required to do a decent amount of educating regarding the ins and outs of Nevada’s workers’ comp laws.

Furthermore, post-trial the Plaintiffs face a tremendous disadvantage in Federal vs. State Court because of the difference in the Offer of Judgment rules.  Under the Nevada Rules of Civil Procedure, the Plaintiff can make Offers of Judgment and if the Plaintiff beats the Offer, the Plaintiff can recover attorney’s fees.  There is no comparable rule in the Federal Court.  In other words, there has to be a different basis besides the Federal Offer of Judgment rules for a Plaintiff to shift its fees to the other side.  To see more on Fee Shifting click HERE.

In all, the lesson learned was:  Every case is going to be different and the attorney must look at the needs of that particular case and client and do his or her best to get the case to the venue that will be most advantageous to the client.

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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