Nevada courts curb lawyer's summation slamming plaintiffs.

Comments made by a defense attorney in his closing arguments suggesting that jurors should be "skeptical" of personal injury claims amounted to misconduct that warrants sanctions, the Nevada Supreme Court held in December. The decision also revised the court's attorney misconduct jurisprudence. (Lioce v. Cohen, 149 P.3d 916 (Nev. 2006) (en banc).)

In January, a lower court applied those standards in another case and imposed sanctions on the same attorney, Phillip Emerson of Las Vegas. (Rising v. Bautista, No. CV03-04388 (Nev., Washoe Co. Dist. Jan. 25, 2007).)

Four personal injury cases were consolidated into Lioce. Emerson's closing arguments, which were "substantially the same" in each case, "encouraged the jurors to look beyond the law and relevant facts," wrote Justice James Hardesty for the majority. Five justices concurred; one concurred in part and dissented in part.

Emerson's arguments, such as "People must stop wasting taxpayers' money and jurors' valuable time on cases like this," amounted to encouraging jury nullification, the court held. Hardesty wrote that these arguments "were directed at causing the jurors to harbor disdain for the civil jury process--a defining, foundational characteristic of our legal system--and at perpetuating a misconception that most personal injury cases are unfounded and brought in bad faith by unscrupulous lawyers."

The court held that Emerson improperly injected personal opinion in his closing. For example, Emerson said: "I have a real passion for this kind of case. It's cases like this that make people skeptical and distrustful of lawyers and their clients...."

In one of the cases, Lang v. Knippenberg, which involved a nine-month-old girl injured by a dog, the plaintiffs said Emerson made an improper "golden rule" argument by asking the jurors what they would do in a hypothetical situation, and the court agreed. Emerson's closing argument "indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence," the court noted.

The defendant argued that the plaintiffs waived this challenge by failing to object, but the court said that "because of the persistent nature of Emerson's misconduct, the Langs' objections to Emerson's other improper arguments sufficiently preserved this issue for appeal."

The court set forth standards for new-trial requests based on attorney misconduct, saying these requests must be evaluated differently depending on whether counsel objects to the misconduct during trial. If counsel objects, the district court may grant a new trial if the moving party shows that sustained objection or admonishment could not remove the harmful effect of the misconduct. If counsel does not object, a new trial can be granted "only if the misconduct amounted to plain error, so that absent the misconduct, the verdict would have been different."

In all four cases, the court referred Emerson to the State Bar of Nevada for disciplinary proceedings. The court determined that his misconduct in two of the cases warranted monetary sanctions, ordering Emerson and his clients to pay the plaintiffs' attorney fees and costs and remanding the cases to the lower courts to determine the amounts. In these two cases, the juries had found in the defendants' favor even though they had admitted liability.

In the other two cases, the court said it was "unable to evaluate whether the district courts abused their discretion in denying the motions for a new trial," so it remanded them for new decisions according to the standards it articulated.

The Second Judicial District Court applied these standards in Rising, a separate case, granting a new trial and imposing sanctions against Emerson. In that case, the plaintiff did not object to Emerson's closing argument, but the court found that his misconduct constituted plain error and that "there is no other 'reasonable explanation' for a finding of zero damages except Mr. Emerson's repeated misconduct and appeal to bias and prejudice."

George Bochanis, a Las Vegas lawyer who represents the Langs and argued Lioce before the supreme court, said Emerson has used basically the same closing argument in numerous cases in northern Nevada, mostly those involving Allstate. Although the company is not named in the Lioce cases, all the defendants are insured by Allstate, Bochanis said.

Reno lawyer Peter Chase Neumann said he knows of about 45 lawyers who have experienced the same problem with Emerson in their cases--and in most of them, the defendants admitted liability. Bochanis noted that the Lioce decision provided "much-needed guidance" and helped get plaintiff attorneys to talk to each other more about tactics commonly used against them.

The Nevada Trial Lawyers Association (NTLA) filed an amicus brief in Lang, saying that Emerson "has adopted a standard deliberate practice of expressing his personal opinions and appealing to the jurors' passions and prejudices as stock arguments in his closing summation in tort trials."

Are Emerson's tactics his alone, or is the insurance company directing him, as a calculated way to take advantage of public hostility toward personal injury claims? Bob Jensen of Reno, president of NTLA, said he hopes neither the insurance carrier nor others helped. "If this is more than simply an isolated attorney engaging in this conduct, then there is a danger that this could occur in other jurisdictions as well," he said.

Talk of tort "reform" is pervasive, Neumann noted. "As a plaintiff lawyer, you go in with two strikes already against you, and it doesn't take much persuasion by Emerson to push it over the top," he said.

Jensen said Lioce should put trial lawyers on notice of this kind of misconduct. He noted that lawyers may now be able to incorporate the Lioce decision into motions in limine.

The Lioce decision "is going to change how cases will be presented to juries," Bochanis said. "Insurance companies will have to rethink their cases."