Although an appeal comes after the trial is over, you should be thinking about hiring an appellate attorney long before the trial phase of a case. In fact, an appellate attorney can be a valuable resource throughout the pendency of your case in the trial court. How, you ask? First, you cannot appeal an error that has not been properly preserved. Appellate counsel can assist (both before and during trial) [...]
1. A Fresh Set of Eyes Even the most gifted trial attorney can develop blind spots in a case. An appellate specialist brings a fresh set of eyes to your case and see issues you do not see. Appellate attorneys can also bring a new perspective to the case. An appellate attorney with no stake in the arguments made in the trial court can take a more objective and dispassionate [...]
The common fund doctrine is alive and well in Nebraska, according to the Nebraska Supreme Court. In Hauptman, O’Brien v Auto-Owners Ins. Co., 310 Neb. 147, - - N.W.2d - - (September 17, 2021), an injured plaintiff’s law firm sued Auto-Owners, the plaintiff’s automobile insurer. The insurer refused to reduce its $1,000 medical payment subrogation interest pursuant to the common fund doctrine. Standard Practice The common practice in Nebraska is [...]
Legal malpractice claims are an unfortunate part of the practice of law. Nebraska’s professional negligence statute is ‘occurrence based.’ See Neb. Rev. Stat. § 25-222. That means the two-year limitations period is triggered by, and begins to run from, the date of the alleged negligent act or omission. As straightforward that may sound, as with most things there are exceptions. So here are 5 things you should know: 1.The limitations [...]
Last week the Nebraska Supreme Court decided an interesting appellate jurisdictional question. In Picard v. P& C Group I, 306 Neb. 292, the Supreme Court confronted allocation in a worker’s compensation case. The plaintiff had twice suffered work-related injuries, each to a different body part. Both injuries resulted in permanent partial disability and loss of earning capacity. The question was whether the worker’s compensation court could apportion any loss of [...]
I was recently speaking with a member of the Nebraska Court of Appeals . During the discussion, the judge lamented how surprised he/she is that so few Nebraska attorneys file reply briefs. My jaw practically hit the floor. I simply could not believe attorneys forego a reply brief. Think about a reply brief the same way you would a rebuttal closing argument. As trial counsel, could you ever imagine yourself [...]
For some time, Nebraska case law on prejudgment interest has been a quagmire for both attorneys and litigants. Answers to whether, and under what circumstances, litigants could recover prejudgment interest on unliquidated breach-of-contract claims varied. Some cases said certain procedural processes had to be satisfied; others left the question open. It was also unclear how two statutes that both address prejudgment interest -- Neb. Rev. Stat. §§ 45-103.02 and [...]
This is the third installment of a three-part blog series on evidence that courts may consider when deciding motions to dismiss without converting the motion to one for summary judgment. Previous blog posts in this series discussed the admissibility of certain documents, matters of public records, and subjects of judicial notice. Concessions and Admissions The next type of evidence that courts may consider outside of the pleadings is any concession [...]
As discussed in the previous blog post regarding evidence admissible for motions to dismiss, courts can only consider limited types of evidence when deciding motions to dismiss. Public Records and Judicially Noticed Matters Public records, and subjects of judicial notice, are other forms of evidence defendants can properly rely upon on a motion to dismiss. Typically, all that is required is attaching the record since authenticity is not generally an [...]
Defense attorneys sometimes file motions to dismiss in lieu of answering complaints. To support these motions, defense attorneys may offer evidence, which is often objected to by opposing counsel on grounds that the admission of evidence would convert the motion to dismiss to a motion for summary judgment. If the trial court agrees, evidence that should be admissible is excluded. After months of discovery, the issue raised in the motion [...]
On Saturday, November 3, LDM Partner Bob Murray was inducted into the Nebraska State Soccer Association’s Hall of Fame! In the late 80’s, Creighton was in danger of losing its NCAA accreditation because it did not have at least 7 Division 1 programs for both men and women. Bob convened a group of individuals to approach Father Morrison (then President of Creighton University) to offer a solution to the NCAA [...]
Your client had a great case. Or so you thought – just before the jury came back and found for the opposing party. Your disgruntled client is now looking to you to make her whole. Are you on the hook for the disappointing results? Of course, the answer depends on whether you committed malpractice; that is, whether you used the same skill, prudence, and diligence as lawyers of ordinary [...]
We've all been there. Long days. Late nights. Slogging away for the benefit of your client. Then, when you send the bill to be paid for your time, nothing happens. Days, weeks and months go by, to no avail. Your follow up letters, emails and phone calls fare no better. The time has come to file suit to collect. Or has it? If you are contemplating filing an action to [...]
Almost two years ago I wrote about the "swamp" of appellate jurisdiction in family law cases. Unfortunately, the statutes have gone unchanged, and so the appellate courts continue to slog their way through the swamp, trying to explain why one order by the court is not final and another one is. It's a complicated dance. Just yesterday, in In re Interest of Jaydon W. & Ethan W., 25 Neb. App. [...]
In an unpublished opinion, the Nebraska Court of Appeals recently remanded a case back to the trial court and ordered that the defendant be re-sentenced by a new judge. The opinion arose out of the conviction of 21 year old Taylor W. Welty-Hackett ("Welty"). He pled no contest to attempted first degree sexual assault. The plea agreement stemmed from Welty's intercourse with a 12 year old girl -- who he claimed said she [...]
When you practices in the area of legal malpractice defense, you get to see all of the creative ways attorneys get themselves in trouble, or find themselves on the receiving end of a malpractice suit or disciplinary proceedings. Most recently, I came across the story of an Ohio attorney who was indefinitely suspended by the Ohio Supreme Court after being convicted of unauthorized use of his client's property (a fourth degree [...]
Today, in its only published opinion (a 35-pager to boot), the Nebraska Court of Appeals reminded attorneys of the importance of preserving your trial court record for appellate review. That constitutional argument, no matter how brilliant, will mean nothing unless you raise it at the trial court level, and give the trial court an opportunity to pass judgment on it. Also, if evidence is excluded, and you believe the exclusion [...]
If you track the periodic Lawsuit Climate Survey, published by the U.S. Chamber of Commerce’s Institute for Legal Reform, you know the 2017 rankings were issued last month. The 2017 Survey constitutes the 11th fielding of the survey since the Institute for Legal Reform first began conducting its survey in 2002. The Survey This year’s survey was based on telephone and online surveys of 1,321 in-house counsel, senior litigators or [...]
One of the challenges of being an attorney is keeping up on the law. Not the case law –the Nebraska Court of Appeals and Supreme Court publish their opinions weekly, here and here. The day before the opinions are published, they even post advanced notice of their anticipated opinions, here and here. To make sure you don’t miss out on new developments, the Courts will even send you a list [...]
This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department. This is Part II of her two part post. Welcome to Part II. If you’ve found your way to Part II, chances are you’ve received notice from the Court of Appeals, at one time or another, notifying you that the Court has elected to forego oral argument in your case. As you learned in Part I, the Supreme [...]
This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department. Imagine stepping up to the plate, preparing to hit your first baseball of the season. You’ve been looking forward to this moment for months, picturing it in your mind and practicing for what seems like forever. Just as the pitcher gets ready to wind up, the heavenly floodgates open and a torrential downpour ensues. Worse yet, the [...]
LDM Partner Cathy Trent-Vilim continues her discussion of her recent case in this post. You read in Part I of Werner v. Platte County how the Nebraska Supreme Court affirmed the trial court’s ruling that statements by Mr. Werner made to the EMT while at the scene of the accident qualified for the excited utterance exception to the hearsay rule. The purpose of this post is to discuss why [...]
LDM attorneys Cathy Trent-Vilim and Bill Lamson recently received a decision from the Nebraska Supreme Court affirming the maximum $1 million judgment obtained on behalf of Brian Werner in a suit against Platte County, Nebraska, arising from injuries Mr. Werner suffered while a passenger in a vehicle being pursued by a Platte County deputy. LDM Partner Cathy Trent-Vilim discusses her recent case in this post. In appealing the judgment, Platte County [...]
This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department. By Cathy Trent-Vilim: The use of social media has become so prevalent that oftentimes users do not think through the consequences of their posts. In some instances, a social media misstep can be the beginning of the end of a promising career. Take for instance Anya Cintron Stern, 31, a Miami-Dade public defender. She was defending her [...]
This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department. By Cathy Trent-Vilim: As a practicing litigation attorney, you have probably noticed the courts’ growing reliance on technology to manage litigation files, including the filing of court documents. Are you familiar with Nebraska’s rules for electronic court filing, Neb. Ct. R. §§ 6-401-419? If not, you might unwittingly be committing malpractice. The potential downside of court-utilized technology [...]
This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department. By Cathy Trent-Vilim: We’ve all been there before. Gazing at the foot-high stack of transcripts and bill of exceptions, you decide to put them aside and work on something else that day. Then that day turns into a week, which turns into two weeks, and before you know it, you’re scrambling to meet your appeal brief deadline. [...]
Failing to meet the Worker's Compensation Act requirement as outlined in Part I can result in some serious repercussions. A Nebraska producer who fails to comply with even one of the Worker's Compensation Act's requirements can lose his/her exempt status and become liable under the Act. If you do become liable under the Act, and have a worker’s compensation policy in place, the Act provides the employee’s exclusive remedy. This means, among other things, that the employee cannot [...]
If you operate a small farm or livestock operation in Nebraska, you are probably used tobeing exempt from providing worker’s compensation coverage to your employees. But in 2003, the Nebraska legislature changed the law. Although most small producers continue to be exempt under the 2003 amendments, the law imposes certain requirements that must be followed in order to keep exempt status. In particular, producers who only employ relatives, or employ less than ten full-time, non-related employees, can typically [...]
