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Jury Trials Start Again in Second Judicial District Court

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Jury Trials Start Again in Second Judicial District Court March/April 2021Vol. 43, No. 2 The OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION Jury Trials Start Again in Second Judicial District Court n September 2020, traditional approach for six months into conducting jury trials the pandemic, the in this district, with SecondI Judicial District minor modifications, Court resumed in-person was used in the fall and criminal jury trials. is anticipated to continue Although there wasn’t any being used while known increased exposure COVID-19 is a concern. to the virus for anyone The Court’s protocols, involved, after three trials procedures, and goals the Courthouse was again are to maximize distance shutdown due to the rise and minimize contact in local infections. This between individuals, and left the legal community to minimize the length wondering, when will jury of time participants trials start again? The are physically in the answer to that question for courthouse. To this end, months has laid more with courtrooms are outfitted the COVID-19 virus than Courtroom 4 with plexiglass and with the Court. new enhanced sound systems. Zoom On March 16, 2020, the Second committees to plan for the resumption technology is being utilized within Judicial District Court closed its doors of in-person jury trials2 and the Court the courthouse to allow for public to in-person proceedings due to the adopted protocols for resuming jury observation and allow prospective jurors COVID-19 pandemic.1 It quickly trials.3 in alternative locations to view and hear became clear that COVID-19 was here The Bench decided the cases with all appropriate public proceedings. to stay, and in May 2020, Chief Judge the highest priority to be heard are To minimize COVID-19 exposure Freeman appointed civil and criminal criminal jury trials where the accused is to potential jurors, jury selection begins bar members to Resumption of Jury in custody and has invoked his/her right before the first juror arrives at the Trial Committees. The Bench sought to a speedy trial. With that in mind, courthouse. The process starts with the recommendations on how and if civil Trial Flights (TFs) have been created Jury Commissioner randomly selecting and criminal jury trials could be safely and criteria adopted to determine the potential jurors who have been qualified resumed in the Second Judicial District order in which cases will be tried.4 to be summoned to serve as a juror. Court. In July, the Committees provided After exploring many alternative The Jury Commissioner then sends all thorough reports to the Bench. Based sites, the two largest courtrooms jurors a letter regarding safety protocols on those reports, the Chief appointed in the 75 Court Street Courthouse the Court has implemented and a a working group of judges, court were chosen to be the location for administrators, and members of the bar conducting in-person jury trials. The Continued on page 5 `` RANDOM CONVERSATIONS APPELLATE FAMILY LAW LAW LIBRARY/ MEDIATION JUDICIAL COURTS/ THOUGHTS ON DISCOVERY BRIEFS PRO BONO REFLECTIONS PEOPLE PG 2 PG 3 PG 6 PG 8 PG 10 PG 12 14 PG 15 Random Thoughts Chandeni Sendall President A Return to Normalcy ith the FDA’s Emergency Use and Drug Administration and the impact a mandate might WAuthorization in late 2020 (FDA) grants full approval. have on company culture and of two COVID-19 vaccines, return to Though that number might go employee morale (67 percent). pre-pandemic life and the practice of up as time goes on – 43 percent The concern was also widely law appears to be in sight. However, haven’t written off the idea of captured in verbatim responses, experts note that a return to normalcy a mandate completely – 48 many of which noted that a will require widespread vaccination. A percent have already decided mandate would be perceived as critical question for employers is whether that they will not require an infringement of basic civil to require COVID-19 vaccinations for employees to be vaccinated. liberties. workers. Given the potential legal Mandate aside, most The law firm of Littler Mendelson and administrative issues at employers do plan to encourage recently conducted an employer play – for instance, exemptions employees to get the vaccine. survey addressing this very issue.1 The or accommodations for Nearly 90 percent said they Executive Summary of those findings is employees with religious would provide information included below and addresses employers’ objections, pregnant or to employees (e.g., how to key concerns, plans and strategies related lactating workers, and those get vaccinated, the benefits to COVID-19 vaccination among their with disabilities that may of doing so) and nearly 40 workforce.2 prevent them from getting percent said they would offer For employers, the new vaccinated – it’s unsurprising vaccine administration at their year has brought an urgent that 64 percent of respondents facility to increase convenience question to the fore: Should expressed concern around – even though this may be we mandate COVID-19 legal liability (if employees easier said than done. A third vaccinations for our workforce? experience an adverse reaction said they would offer paid time The sentiment gathered to the vaccine) and that off for employees to receive the from more than 1,800 in-house 57 percent questioned the vaccine and/or recover from lawyers, HR professionals and effectiveness of a mandate any side effects. C-suite executives across the given the number of potential Of course, without a country who responded to exemptions. mandate, there will inevitably our survey boils down to two But perhaps more be a split in the workforce words: “Probably not.” surprising is that these issues between those who have Less than 1 percent were not even employers’ top received the vaccine and those currently mandate vaccination concerns. Those were reserved who have not. Thus, nearly for all employees, and only for cultural quandaries, like 75 percent of respondents 6 percent say they plan to pushback from employees who have some level of concern once vaccinations are readily refuse to get the vaccine or available and/or the U.S. Food oppose it generally (79 percent) Continued on page 9 JENNA GARCIA, EDITOR PRESIDENT CHANDENI SENDALL The GINA MACLELLAN, MANAGING EDITOR SECRETARY RYAN LEARY ANNUAL SUBSCRIPTION RATE FOR NON-MEMBERS OF WCBA: $36 TREASURER THERESE SHANKS SERGEANT-AT-ARMS JENNA GARCIA THE WRIT IS THE OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION WCBA, P.O. BOX 1548, RENO NV 89505 EXECUTIVE DIRECTOR GINA MACLELLAN TEL: 775-786-4494 FAX: 775-324-6116 ARTICLES APPEARING IN THE WRIT EXPRESS THE VIEWS OF THE AUTHORS AND NOT NECESSARILY THOSE OF THE WCBA. FOR ADVERTISING CALL THE WRIT AT 775-786- WWW.WCBAR.ORG E-MAIL: GINA @WCBAR.ORG 4494. WCBA RESERVES THE RIGHT TO ACCEPT OR DENY ANY ADVERTISING. 2 March/April 2021, Vol. 43, No. 2 CONVERSATIONS ON DISCOVERY By Wesley M. Ayres, Discovery Commissioner ourts expect parties to Zitting then sued APCO and the its interrogatories and explain its provide all information project owner for breach of contract, reasoning for not disclosing its other Cand documents that are foreclosure of a mechanics’ lien, and defenses. The court therefore precluded reasonably available to them in making various other claims. APCO raised APCO from providing evidence in disclosures under NRCP 16.1. Similarly, various affirmative defenses in its support of those other defenses. The parties must provide all information answer, including that Zitting failed court subsequently entered a judgment and documents in response to written to meet conditions precedent and that in favor of Zitting under NRCP 54(b), discovery requests in accordance with the project owner never paid APCO and APCO appealed that decision. See the standards governing those responses to thereby compel payment under id. at 5-6, 473 P.3d at 1025. (e.g., all responsive documents within a the pay-if-paid provisions. During The Nevada Supreme Court began party’s possession, custody, or control). discovery proceedings, Zitting sent its substantive analysis by discussing If a party learns that a previous disclosure interrogatories to APCO seeking facts statutes granting subcontractors certain or discovery response is incomplete supporting APCO’s defenses. APCO’s rights—including the right to prompt or incorrect, then it must timely response mentioned the pay-if-paid payment for work, materials, or supplement its disclosure or response provisions, but failed to provide any equipment—and imposing certain under NRCP 26(e). A party that fails facts regarding the other conditions obligations on general contractors. See to do so—whether by mere neglect or as precedent it had raised as defenses. id. at 7-9, 473 P.3d at 1026-27; see the result of a desire to disclose as little Following a multi-year stay to resolve also NRS 624.624 (2019) (describing information as possible—may later be related issues, Zitting served APCO with subcontractor’s right to prompt payment precluded from using certain evidence the same interrogatories and APCO for labor, materials, and equipment); in the case under NRCP 37(c)(1). In served a similar response. Zitting also 624.628(3) (identifying conditions, the recent decision of APCO Constr., Inc. deposed two APCO witnesses under stipulations, or provisions that are void v. Zitting Bros. Constr., Inc., 136 Nev. NRCP 30(b)(6), but they did not and unenforceable if contained in Adv. Op. 64, 473 P.3d 1021 (2020), provide testimony about APCO’s other subcontract). It also clarified an earlier the Nevada Supreme Court once again conditions-precedent defenses. See id. at holding that pay-if-paid provisions are showed that it will enforce these rules 4, 473 P.3d at 1024-25. not per se void and unenforceable: when parties fail to provide information After discovery closed, Zitting moved Rather, such provisions require and documents as required.
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