Las Vegas Icons: Brad Jerbic

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Las Vegas is a town known for its icons, including those who are living, and those who’ve blazed on before us to our city’s great neon “after party.” While some Las Vegas icons are recognized the world over, others are known personally to the thousands of locals whose lives they’ve touched. Each icon, in their individual way, has helped to shape Las Vegas into the remarkable city that it is today. Here, in this first installment of VLM’s LAS VEGAS ICONS, we introduce Las Vegas City Attorney Brad Jerbic.

For nearly a quarter century, Brad Jerbic has been one of the most energetic, entertaining and enigmatic players in local government. His sharp intellect, youthful exuberance (which belies his chronological age) and his rare ability to tell a story well, have endeared him to friends and colleagues at Las Vegas City Hall. As City Attorney for Las Vegas, Jerbic is essentially “house counsel” for the city. He helps keep city leaders flying right as they navigate uncharted political territory while always maintaining an eye on taxpayers’ interests and funds.

Jerbic stays seemingly awake through marathon city council meetings (where he ditches his preferred attire of jeans and Pooka shells for more traditional business suits) and is known for his ability to maintain a laser focus. Still, his surfer-style haircut hints at where his mind could potentially wander. When this public servant isn’t in council meetings or in his corner office at City Hall, he might be found body surfing at The Wedge in Newport Beach, Calif., shopping at local comic book stores, or salvaging historic Las Vegas documents.

Jerbic’s office is not designed to impress or intimidate. It’s designed to amuse. Underneath a large painting of Superman, Jerbic keeps a red, 1970s “government hotline” telephone that while not in use makes for some interesting office gags. Batman figurines and other collectables decorate counters, and vintage covers of National Lampoon’s Mad magazine are neatly framed on the walls. From this auspicious space, Jerbic leads a staff of several dozen dedicated attorneys and city personnel.

Vegas Legal Magazine: I’ll start with the décor. Clearly you’re a man who knows his comic books.

Brad Jerbic: When I was 8 or 9, I had the measles and my mom went to the drugstore (back then it was Westgate Drug on the corner of Valley View and Charleston) and she just happened to pluck a comic book off the rack. It turned out to be an action comic of Superman. Back then, I was told [that] with the measles, you [had to] be in a dark room because you’re sensitive to light. I had this dim light next to the bed and I read the comic book 15 times. It was part two of a series, so I had to get the next part and that was it! It started everything and it’s never left me. Later on when I had kids, I realized that [my love for comic books] set me straight as a kid and taught me how to read.

VLM: Growing up in Las Vegas, was there anything that steered you in the direction of public service?

BJ: My dad had a jewelry shop Downtown that was kind of the “Floyds Barber” of jewelry shops. The clientele ran the gamut, from the people who worked at the casinos to the phone company. Metro was Downtown, so you’d see a lot of cops all the time, and lots of judges and lawyers. A mish mash of everybody would come into [my dad’s] store and they would sit around and tell stories of what happened that day. If I wanted to see my dad, I had to go there because he worked Saturday and Sunday. So I was [able to be] a fly on the wall and hear all this stuff. [My dad] had a wonderful custom. He had a Dixie cup dispenser, and at 4 o’clock every day he would count the number of people in the store and pull out a Dixie cup for each one of them. He would crack open the ice cube tray and put an ice cube in each one, and fill it full of Canadian whiskey. That’s what he called “tea time.” Everyone in his store did a shot every day at 4 o’clock.

VLM: The energy in that room…is that what attracted you to civic life?

BJ: Actually, it intimidated me. It intimidated the hell out of me. For someone to have a title in front of [their] name was just intimidating. If somebody was a judge or a lawyer or a captain in the police department, I was like, “Wow, my dad knows these people?” [That awe] changes later in life, but when you’re a kid it was just intimidating.

VLM: You have a pretty cool title as City Attorney for Las Vegas. Do you find that a lot of people, even attorneys, don’t really know what your job entails?

BJ: [Laughs] It’s funny. I admit I really didn’t know what the city attorney was and did until I got [the job.] I’m appointed to work for the citizens, and that’s the only thing I find a little bit overwhelming. My “client” is the citizens of the city of Las Vegas, and that is a big responsibility. I think everybody around [the office] understands that, too. When we go through contracts, lawsuits, whatever, it’s taxpayer money. [If] you lose a case, it’s the taxpayers who work hard for their money [who lose]. Then you have to spend money on something other than a park or public safety or whatever [the taxpayers need]. The main goal here is to not waste money.

VLM: In the last quarter century you’ve worked under three different mayors (Jan Jones, Oscar Goodman, Carolyn Goodman) and roughly 40 different city councilmembers. Which of the mayors was most challenging?

BJ: [Laughs] I would have to say that Mayor Oscar Goodman was probably the most challenging sometimes. He was so bright and so much fun, but he would spontaneously come up with ideas. And when somebody would ask him, “Is that legal?” his standard response would be, “I’ll get the city attorney working on it.” [Laughs] And if I didn’t know about it, I’d get a call from the press saying, “I understand you’re working on (fill in the blank) and so I found myself having to go to every press conference and every meeting where one of these kinds of ideas might come up so I could stay ahead of the power curve. But it was a great working relationship. It was a really, really great working relationship. I hope he feels the same way.

VLM: A lot of city leaders come to you for council. Are there recurring themes?

BJ: Legal advice is kind of tricky because sometimes it looks like political advice. And so when you try to explain, particularly to a new council member, “Here are the consequences of doing this,” you’re really telling them the legal consequences…but often they hear you’re talking about politics, which is not what we’re supposed to be talking about. And so there’s a little finesse sometimes in having to explain, “I’ve been down this road 10 times before, and Councilman, this is where it’s going. I am obligated to let you know that before you do it.”

VLM: Do you feel that once or twice you’ve been able to spare somebody getting into ethical hot water?

BJ: Yes. [Laughs] I won’t go into any more detail that that, but the answer is yes.

VLM: Is it normal for a city attorney to have the job as long as you’ve had it?

 

BJ: Not really. There are two kinds of city attorneys: appointed and elected. Elected city attorneys, if they’re doing their job, generally stay in office for a long time. They are [however] term limited now in Nevada. City attorneys in other states, who are elected, can. For instance, the city attorney of San Diego is a friend of mine and he was there for 30 years and did a fine job. The good ones do stay because the voters see their work and appreciate it. The appointed [city attorneys] are a bit more tricky. Some are appointed by [city] managers and some are appointed by [city] councils. I’m appointed by the city council. I think [that’s] the best form for a city attorney, because the city council is separate from management and is there to be a watchdog for all of government. If [as city attorney] you’re producing what you should be producing, you generally don’t get disturbed. But the fact is, it’s a very political job and there are a lot of [city attorneys] who don’t last very long.

VLM: You oversee a lot of people. Can you tell me about the work being handled from this office?

BJ: I think we’ve got about 25 attorneys in civil and criminal at all times. We have a wonderful fellow named Ed Poleski who’s the assistant city attorney in charge of the criminal division. He runs a number of attorneys who every day handle domestic violence cases, DUIs, petty larceny…all the misdemeanors in the city including speeding, traffic violations. Things like that. They are extremely busy. I think last year they processed over 40,000 cases. That’s an awful lot.

VLM: Is it tough for you to keep up?

BJ: Well, I’m very lucky. I’ve got good people. For the most part, I hire good people, I leave them alone and let them do their job. What I find myself now doing is making sure I’m aware of what’s happening with all the high-profile projects, and if there is going to be a decision where somebody is going to get blame, I make sure I’m the one who gets it. I don’t like to see the attorneys in the office all of a sudden get stuck with something that they feel might be career threatening. That’s what I’m here for. My job is to get a little into everything, to the extent that I need to.

VLM: Looking back over nearly 25 years as Las Vegas City Attorney, is there anything in the rearview mirror that you sort of wince at…that you wish you’d done differently?

BJ: Oh yeah. When I first started, the city got involved in doing the Fremont Street Experience, which was one of our very first redevelopment projects. It was imperative to Downtown to do something because the competition on the Strip was pretty high, and Downtown tourism was on a very steep decline. But, one of the things we did was we get involved in condemning property. I look back on that as one of the big regrets of my career. I followed the advice of my client at the time, [but] if I had known then what I know now I would have given much stronger advice and urged everybody to negotiate rather than take [anyone’s] property forcibly. Being relatively new, and not having as much confidence as I do now, I would have pushed that a lot harder.

VLM: How did it turn out for the property owners?

BJ: In the long run, they all got more than appraised value for their property. But I think you could argue [that] from a moral point of view, to turn to anybody and say you’re taking their property—and not for a road or a park or a public building [but for a private enterprise]—that’s a lot for someone to swallow. There have been changes to state law so we don’t do that anymore. But that would probably be [my] single biggest regret.

VLM: This town is small in many respects, and grudges can be legendary. Have you dealt with that?

BJ: I know of people who do hold grudges. I’m not one of them. I recognized a long time ago that it’s absolutely pointless to burn anybody in life. It makes no sense from a practical point of view. You never know who’s going to appear back in your life again. And from a human point of view, what does it get you? A lot of anger? A lot of bitterness? [I’m always in favor of] putting bitterness aside and letting practicality take over. I think that that’s something I kind of learned from my dad. Just enjoy everybody and let the chips fall where they may.

VLM: If you were to give advice to the next person who has your job, what would you tell them?

BJ: Keep a low profile. Keep focused on what the job is all about. The number one thing I would tell them is you are not the 8th member of the city council. Those would be the first words out of my mouth. You sit next to them. You advise them. You are not elected. If you have a desire to have a political opinion, you ought to resign and put your name on a ballot and run for office. If you can’t put aside the fact that you’re not elected, you shouldn’t be doing the job. That would be my number one piece of advice.

VLM: I understand you’re a fan of preserving Las Vegas history?

BJ: [The city] had a vault. Rather than move everything they didn’t need any more, they just started throwing stuff away. So I kept some things, like the original city attorney stuff from the 50s. I saved [U.S. Senator Howard Cannon’s] original resignation letter to the city of Las Vegas. He was the city attorney when he was elected U.S. senator. I flagged a few [documents] just because they’re amazing bits of history. When I leave, I hope that whoever takes over is also as fond of historic documents as I am, because [they] really tell a story. I think they’re wonderful.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Let’s Restore Civility & Professionalism To The Practice Of Law

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

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 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.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Court Of Public Opinion

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

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 stumbled 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 situation 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.”

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.

“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?

“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 access, 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.”

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.

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.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

 

Don’t Get Caught With Your Hands In The Tip Jar

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

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.

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).

In fact, a common lawsuit is one that involves a tipped employee claiming that the restaurant employer “diluted” the tip pool by including non-tipped employees in the tip pool. By permitting non-tipped employees (who earn at least the normal minimum wage and do not engage in customer interaction), tipped employees are losing a portion of their hard-earned tips that would ordinarily only belong to them.

Another common lawsuit is when a restaurant employer requires his or her employees to perform nontipped duties at the reduced/tipped minimum wage. In every restaurant, there is some down time or a list of “side work” for tipped employees to complete. (For example, servers may be asked to assist in setting and/or wiping down tables, restocking supplies or silverware, etc., even though such work does not directly result in tips.). The DOL permits restaurant employers to continue to pay the reduced minimum wage to tipped employees while performing such side work so long as it is (1) minimal and no greater than 20 percent of the time and (2) related to the performance of tipped duties.

However, employers cannot pay their tipped employees the reduced minimum wage if they spend a significant amount of time performing non-tipped work (e.g. washing dishes, preparing food, mopping the floor, wiping down tables, etc.). In this scenario, the employer is improperly benefitting from paying its tipped employees the reduced/tipped minimum wage, while the employee is performing significant work that does not result in tips.

It’s important to note that each state has its own minimum wage and tipping requirements. Nevada (and in particular, Las Vegas) is the home of many popular restaurants found on the famous Las Vegas Strip. Recognizing the need to maintain quality service to cater to a tourist crowd, Nevada is one of a minority of states that provides equal treatment to tipped workers in terms of wages, meaning restaurants must pay their employees at least the regular minimum wage (rather than a reduced tipped minimum wage) per hour. Thus, Nevada employers may not take a tip credit for their employees and must pay at least the full minimum wage.

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.

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 dealers who previously had to share their tips with other employees. Wynn elected to maintain its policy as it awaits further appeal before the U.S. Supreme Court.

With all of the above said, here are five “tips” to avoid the tip-related audit or lawsuit in any state, including Nevada:

1. Understand that tips are the property of the employee and the employee is not required to share them with anyone. If your restaurant is permitted to take a tip credit on employees and does, make sure employees are notified and paid the appropriate tipped minimum wage.

2. If your restaurant has a tip pool, maintain and enforce a strict policy that only permits employees who “customarily and regularly” receive tips to participate in the tip pool. Never allow non-tipped employees to participate in the tip pool.

3. Maintain adequate and accurate time-keeping records. If your “tipped employee” is performing non-tipped work, make sure it is related to the tipped position and only for a very limited amount of time. Otherwise, the employee must be paid the full minimum wage for time spent on non-tipped work.

4. Constantly monitor compensation and tip distribution to ensure employees are paid appropriately and timely.

5. Keep your employees happy. Retaining happy employees is the number one way to avoid a workplace-related lawsuit.

Adam D. Kemper, Esq., is senior counsel for Greenspoon Marder, P.A., a full-service law firm with offices in Florida, Nevada, California, New York, and Colorado. He practices in the area of labor and employment law where he regularly counsels employers on a variety of workplace issues including but not limited to interviewing; hiring; employee discipline and discharge; workplace discrimination; harassment; retaliation, wage and hour (including tipping practices); whistleblowers; unemployment; restrictive covenants; non-compete, non-solicitation and non-disclosure agreements; separation agreements; and workplace policies and employee handbooks.

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

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Advocates Arena: Tort Reform

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Leonard Fink, Esq.

Affirming View

No two words in civil litigation are more divisive than “tort reform.” While you can always point to outliers, generally, plaintiff attorneys and consumer lobby groups advocate a hands-free approach to litigation emphasizing that if someone has caused another person harm, the offender should pay for it. And while the defense industry generally agrees that an injured party should be compensated, there need to be limits in place so that commerce and free enterprise are not choked out by runaway jury verdicts.

The risk is very real that without tort reform, unlimited damages awards can burden businesses with liabilities they cannot afford to pay and, consequently, there will not be any affordable insurance available for businesses or individuals to compensate injured parties. While this argument has always struck me as somewhat reptilian, in and of itself, it is compelling when we consider what can happen without adequate safeguards. To avoid this scenario, every potential plaintiff (which is all of us) must be willing to take a step back, take a society-wide view, and agree that reasonable limits must be put in place on what they are legally entitled to recover. As the price for insurance rises, so does the cost of doing business as a whole. In order to continue making a profit and thus preserve their existence (because without profits there is no business), businesses are forced to push those increased costs to their customers. In the end, therefore, it is the consumer that pays, and the consumer, after all, is all of us, even injured plaintiffs. So, for every multi-million dollar verdict that a jury awards, there are costs that we all must pay

Taking this scenario further, once a few multi-million dollar judgments begin to pile up, we can see the real possibility that the cost to insure an individual or business can become so outrageous (because even insurance companies have to make a profit), the individual or business can no longer afford it. When that happens, we lose necessary service providers…even good ones. This was exactly the situation that Nevada faced in 2002 concerning the rising cost of malpractice insurance for OBGYNs. Due in no small part to litigation and increasingly large damages awards, in 2002, many insurers began to charge unaffordable skyrocketing premiums (or declined to continue to write medical malpractice insurance altogether). As a result, many OBGYNs considered leaving the state, which would have created a public health crisis: If expectant mothers were suddenly unable to get proper treatment during their pregnancies, no doubt the number of birth complications would rise, placing further stress on health insurance and other tangential businesses in addition to the personal costs that would be incurred by the women, children, and families negatively impacted by a correctable problem. Ultimately, reason won the day and the Nevada Legislature passed an emergency bill to address these concerns, including instituting the 2004 caps on medical malpractice damages awards, largely averting the crisis. Nothing is ever perfect!

Even when insurance remains available and a business or individual can afford the increased premiums, sometimes the insurance product or coverage is not as great as it was before. In the construction defect industry, we saw many insurers leave Nevada in the mid-2000s, with others coming in and writing policies that offered much less coverage than what was previously available, leaving contractors unprotected. Consequently, a homeowner might not be able to recover any damages for real issues, especially when an insured business ceased operations and there are no remaining assets to look to for compensation other than that insurance policy

Although I certainly agree that an aggrieved party should be entitled to be compensated by the person that harmed them, that must not come without risk or the willingness to compromise. Without tort reform, the first plaintiffs will get all, and maybe more than they otherwise deserve, but at the expense of society at large (including future plaintiffs). While I do not claim to know the best answer to achieve an appropriate balance between a party’s ability to be compensated without overburdening commerce, I do know that tort reform is necessary to a healthy economy and that it will take the concerted efforts of a lot of people to look past their seemingly different agendas to come up with a compromise that compensates fairly but does not put the overall system in crisis.

Glenn Truitt, Esq.

Dissenting View

Tort Reform. The name alone represents a successful reframing-by-renaming effort on the part of the insurance lobby. What “tort reform” really means is medical malpractice reform. After all, medical malpractice only represents a small fraction of the overall tort legal market, and yet, when reform is called for, they simply assume the mantle. And the reforms contemplated amount to nothing more than capping payouts. In that way, it’s not unlike how San Francisco insists on being called “The City” in a metropolitan area where it is the third largest of the three major cities comprising it. Nevertheless, we can all agree that, unlike San Francisco, the MedMal system is one that is deeply in need of improvement.

In 2015, nearly four billion dollars were paid from Medical Malpractice actions, and Nevada represented the second largest growth in payouts, increasing 73% over the previous year. Medical malpractice payouts declined for a decade from 2003 to 2012, before again rising in 2013 and every year since. Whatever we thought might be working is not, and now, with awards on the rise, and the associated insurance premiums rising with them, the calls have resumed for “tort reform.

The stakes for physicians are, quite literally, life and death. As a result of the unique and important part that healthcare plays in human life, the economy that has evolved around medicine is both mature and sophisticated in dealing with the risks associated with it. Malpractice jurisprudence serves important public policy objectives: holding physicians accountable for a recognized standard of care and punishing failures to meet that standard which result in substantial and often permanent harm (including death). What’s more, the malpractice insurance market has developed to help physicians manage and quantify the risk associated with potential malpractice. By employing extraordinary amounts of data and actuarial analysis, malpractice carriers pool the economic risk of malpractice across populations of physicians, at a fraction of the cost to the offending practitioner that he/she would have otherwise been liable for.

These carriers constantly warn of the dangers of increasing awards and payouts, noting that they will be forced to pass along these costs on to clients in the form of increase premiums, dropped clients and perhaps ceasing operations altogether. Further, many physicians decry the increasing cost of malpractice insurance premiums, noting that the concurrent downward pressure on reimbursement makes private practice all but impossible.

Of course, insurance carriers are not public utilities. They are profit-seeking enterprises with stockholders, partners and other principals who seek to benefit handsomely if the insurance company can lower its expenditures (e.g. payouts) without a corresponding reduction in premiums.

However, the proposed “tort reform” (i.e. capping payouts) is a profoundly reductive and myopic solution – placing the burden on the parties least capable of bearing it: the actual victims of negligence and malpractice. There certainly is reform needed, after all, no one wants private practitioners to be priced out of the market before they’re even in it. However, addressing compensation is a derivative concern; the real reform needed is in the practice of medicine, itself.

Initial American medical licensure is widely-considered to be the most challenging in the world. The course of study, performance and testing required to become a medical doctor in the U.S. is rigorous, demanding and prohibitively lengthy and expensive. Unfortunately, continuing licensure for domestic medical doctors is woefully asymmetrical to its academic counterpart. Dazed attendance at CME (Continuing Medical Education), administrative form filling and nominal annual fee payments are nearly all that’s required to maintain a medical license. Little, if any, actual testing is required. Nevertheless, we expect a physician’s training to endure so substantially as to never require refreshment until retirement.

Further, as physicians mature in their careers, most rely less and less on team-based medicine, and are increasingly expected to have superior judgment based almost wholly on experience. This approach ignores the value of both continued instruction and, more importantly, innovation, which becomes all but inaccessible to aging practitioners. One study showed that by the age of 65 years, 75% of physicians in low-risk specialties and 99% of those in high-risk specialties were projected to face a malpractice claim.

So, if we all agree that the astronomical amounts of money spent on medical malpractice payouts deserve reform, we should all be able to similarly agree that there are at least two ways to address this problem: reducing the amount paid per claim (the “traditional tort reform” solution) or reducing the number of claims. Addressing the root cause, rather than a secondary outcome, is economically and ethically preferable.

The good news about this approach is not having to tell the victims of medical malpractice or their families, to make due with less money, despite the horrors inflicted upon them, and rather, focuses on avoiding those circumstances in greater numbers.

The even better news is that many of these reform efforts are already underway with leadership from the insurance industry

Public and private payors are increasingly turning to outcome-based reimbursement models to provide economic incentives to practitioners to undertake the best possible treatments for their patients and not simply the most valuable ones. As government payors seek innovative tools to manage their costs and ensure their survival as a matter of vital public importance, they have aggressively pursued data analysis, information technology and coordination of care to make this model not only possible but practical. It is estimated that implementation of these structures could reach fifty percent in the next two to three years, and result in an overall cost savings of more than ten percent.

Tort reform? That’s a special interest trope. We’ve got plenty of reform taking place in healthcare already, and it will undoubtedly result, in the near term, in a lower total Medical Malpractice payouts because it will result in fewer actionable outcomes. The only difference is we won’t be handing those gains over solely to insurance carriers.

Glenn H. Truitt, Esq. is a founding and managing partner of iDeal Business Partners in Las Vegas, NV, and has been practicing law for over 11 years. Licensed in Nevada and California, Glenn represents healthcare clients in a wide variety of transactional, business and compliance matters. He is a frequent contributor to local scholarship regarding healthcare law and policy and consults with industry leaders nationwide. Glenn his bachelor’s degree in Mathematics from the United States Naval Academy in Annapolis, MD, and following submarine service aboard the USS Tennessee (B), received his Juris Doctorate from Stanford Law School in Palo Alto, CA.

Leonard T. Fink, is a founding partner of Springel & Fink, LLC in Las Vegas, Nev., and has been practicing law for more than 20 years. Licensed in Nevada, California, Arizona, Washington, and Idaho, Fink represents a variety of different clients in all types of civil and business-related litigation matters. He is a frequent speaker at MCLE events and, at times, a guest lecturer at the University of Nevada, Las Vegas. Fink received his Juris Doctor degree from the University Of San Diego School Of Law and received his bachelor’s degree from Arizona State University.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Advice From The Surgeon: Doctor: I Don’t Like The Way I Look!

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Doctor, I don’t like the way I look. What do I need done? I think that is the most frequent question I hear from my patients. They have gone through all of the wonderful things in life and are starting to see some changes in their face, but they can’t quite put their finger on it. This is usually the case with what I call “tweeners,” or people who see something happening but are left guessing what they need to have done because the changes are so subtle. When people see large problems such as loose-hanging skin, they can pretty much decide they likely need surgery…but what about the “tweeners?”

One thing I find very educational as I handle these questions and suggest options is to look at pictures of the patient from years ago. I prefer candid shots, as they show the patient in a relaxed pose and are more realistic. (In planned photos, the patient is warned when to smile and in so doing, they all lift up their eyebrows and cheeks to look happy…yet, that is not the way they see themselves since that pose is only held for a minute.) There are times when a plastic surgeon can look at a face and take an educated guess as to what has occurred. We see lines in a certain direction that point to a subconscious attempt to raise something that has fallen, or we see a depression where, normally, there should be a smoother surface. Yet, we cannot always count on that. That is why old photos coupled with strong communication between surgeon and patient prior to surgery is so crucial. With it, the proper option can be chosen together to achieve the desired effect.

Surgery can do wonderful things. For example, it can tighten skin by moving the tissue below its surface into a more youthful position. But surgery performed when something else would have been a better option can leave the person looking different…looking as if “something was done” rather than achieving the rested appearance they actually sought.

In many cases, since one of the early changes of the face is loss of volume (which causes things to look less plump and as if features have fallen), the use of fillers is all that is needed. I know it might sound strange to hear from a surgeon that I might endorse and encourage things besides surgery, but my philosophy is to get the patient to where they want to go with the least possible intervention. We can always do more, but if too much is done right away, it can take years to look better and natural. The options suggested should not be cookie cutter. They must be customized to the patient…to their hopes and desires, as well as what is reasonable and safe.

Fillers such as Restylane, Perlane, Juvederm, Voluma, and Sculptra are great volumizing fillers in my armamentarium of options for the “tweener” who needs volume to achieve their goal. These fillers can also extend the time between facial surgeries by correcting small areas that can make a large difference on the face. If you think you’re a “tweener” and are wondering what is making you look less like “you,” come in for a consultation and explore the options at your disposal. It might surprise you that you don’t need as much as you thought!

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 http://www.lvcosmeticsurgery.com and http://www.rminlasvegas.com, or contact his office by calling 1-888- FACES-89 or (702) 870-0058.

This feature was previously published in The Ridges Magazine, limited distribution to residents of The Ridges, Las Vegas

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

What Is A Wife Worth? A Comprehensive Overview: Economic Damages

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

The full value of what a wife is worth is indeed a provocative and difficult question, and one that often arises in Nevada courts. Many women are effectively the chief executive officer of a complex organization known as a household, in addition to whatever work they may perform at an outside job. When a woman is injured or killed, in addition to lost income, the household loses a large variety of irreplaceable household family management services, not just the execution of physical chores.

Juries are asked to place a value on these services in personal injury and wrongful death claims…but how can they possibly do that? Further, what guidance can an economist give them?

Evaluating Physical vs. Nonphysical Chores

While most think of household services in terms of physical chores such as housecleaning, cooking, laundry, etc., what makes the wife’s CEO job complex is that women also provide tangible advice, counsel and accompaniment services akin to that provided by coaches, advisors, home aides, or companions to the elderly. Economists have traditionally only valued the physical chores and have ignored the non-physical duties and responsibilities, yet these, too, can be valued based on comparable market alternatives (obviously, exclusive of love and affection).

For an injured woman in her 30s (including those fatally injured) who can no longer provide such services, the loss of housekeeping alone typically exceeds $1 million; however, the loss of advice and accompaniment typically exceeds that amount to the husband alone. Advice and accompaniment is also lost to children, siblings, parents, etc., thus this value can quickly multiply and eclipse the loss of the value of physical chores as well as income. For full and fair recovery to claimants, these additional components of household services must also be valued.

The methods I and other economists use to value the loss of the intangible love and affection component of society and companionship, or consortium, was discussed in my the last article for Vegas Legal Magazine (VLM). (The loss of quality or enjoyment of life to the injured person is another separate component, to be discussed in a forthcoming article.) Courts have long recognized claims for the value of tangible household family services as an element of damages in personal injury and wrongful death cases. However, women are not the only ones to provide such services: so do men, and to some degree, children, as well. These services are provided without charge or cost. The family members who may receive such services can include spouses, children, parents, or siblings. (Such family members do not necessarily have to reside in the same household to receive such services.)

Economists and courts have also long recognized that an appropriate method in valuing such tangible services is to look at market equivalents from which an economic standard can be established. This approach was set forth in the 1913 U.S. Supreme Court Decision, Michigan Central Railroad Company v. Vreeland, 227 U.S. 59 (1913). The Supreme Court’s suggesting in valuing compensable services in Vreeland is a standard that is not rigid, but actually rather general: “[The] pecuniary loss or damage must be one which can be measured by some standard….Compensation for such loss manifestly does not include damages by way of recompense for grief or wounded feelings.”

Examples of lost household services that used to be performed by persons (whether fatally or nonfatally injured) include physical chores such as mowing the lawn, painting the house, cleaning the windows, doing the laundry, washing and repairing the car, preparing the meals and doing the dishes, among others. But since economists recognize that in addition to the physical chores, “tangible services” to family members include services well beyond the physical housekeeping chores, it is important that a complete analysis of all services performed by family members include much more than the physical housekeeping chores. This supported by my own research and that of others that is published in peer-reviewed, scientific, economic journal articles that I, and others, have authored.

The Human Factor

Every family member acts as a companion to other family members. And it is common for family members to act as counselors for one another. Women typically provide advice and counsel on important personal, family, medical, financial, career or other issues. The marketplace can and does value such items of loss. If the person cannot provide these services, or does so at a reduced capacity or rate, there is a distinct and definite loss to the other family members. These losses have a definite and easily measurable pecuniary value. Vreeland requires only that a “reasonable expectation” of loss of services be proven, and that such loss be valued by some standard—presumably a reasonably based economic standard—to allow recovery.

The economic literature on recovery of loss of services discusses an estimated, market-oriented valuation cost method to assess the pecuniary value advice, guidance and counsel services, as well as the loss of accompaniment services that family members provide to one another, within a broadly defined scope of household family management services.

According to Chief Justice Robert Wilentz of the Supreme Court of New Jersey, in Green v. Bittner, 85 NJ 1, 1980, pp. 12, accompaniment services, to be compensable, must be that which would have provided services substantially equivalent to those provided by the home companions often hired today by the aged or infirm, or substantially equivalent to services provided by home health aides; and their value must be confined to what the marketplace would pay a stranger with similar qualifications to spend social time with another for performing such services.

Both the U.S. and the New Jersey Supreme Courts discuss looking at labor markets for the equivalent value of such services…an identical methodology to the traditional approach that economists have been using for over four decades that uses market rates paid to housekeepers; child care providers; waitstaff; private household cooks; laundry and dry cleaning workers; maids and housekeepers, etc., which averages approximately $20 an hour. The number of hours expended can depend on family size. While standard tables provide such hours, and interviews with family members can also establish estimates, at three hours a day (a typical measure), the value exceeds $20,000 per year, which for a young wife can exceed $1 million over a lifetime.

The Emotional Factor

The value of advice and counsel services is also measured using market rates paid to people who work as family counselors, social workers, clergy, coaches, teachers, etc., which averages approximately $35 an hour. Again, the number of hours expended can depend on family size, but at one hour per day for the husband (a typical measure), the value exceeds $12,000 per year, which for a young wife can exceed $500,000. Children, siblings and parents who receive such services often lose in aggregate an amount equal to or exceeding this figure.

The value of accompaniment, or social time spent with family members, is again measured using market rates paid to home companions which averages approximately $15 an hour. On average, at three hours per day for the husband, the value exceeds $15,000 per year, which for a young wife can also exceed $500,000

When added together, the injury to a wife can result in household family management services that can be a multiple of the traditional housekeeping chores alone. (And, naturally, the same approach outlined above can be used when measuring the loss of husbands.) Regardless of which parent is no longer a part of the family, when such testimony is provided to a jury through family members and an economist, a full and fair recovery can be achieved.

Stan V. Smith, Ph. D., is president of Smith Economics Group, Ltd. 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), Smith has also taught at the university and co-authored the first textbook on the topic of economic damages. A nationally renowned expert in economics who has testified 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. To that end, Smith also developed the first course in forensic economics at DePaul University, and pioneered the concept of “hedonic damages,” testifying about the topic it in landmark cases. His work has been featured in the ABA Journal, National Law Journal, and on the front page of The Wall Street Journal.

Smith Economics Group, Ltd., is located at 1165 N. Clark Street, Suite 600, Chicago, IL 60610. Dr. Smith may be reached at 312-943-1551 and at Stan@SmithEconomics.com. – 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

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.