I am happy to report the latest developments on the short trial program.

A brief history is in order.

Several years ago, I was concerned about how to balance the need for a right to jury trial, versus the strain that putting a 4-day jury trial puts upon tax payers, and plaintiffs, in those situations involving a relatively small personal injury case. It was, at the time, apparent to me that some of the carriers were using the threat of a 4-day jury trial over an $8,500.00 whiplash case as a "hammer" to drive down settlement values. Because plaintiffs could not afford the out-of-pocket costs necessary to bring doctors to court and so forth, this caused an injustice. Just as importantly, there was a flood of "de novo" cases making their way to District Court jury trials, and this was putting a strain on limited District Court resources (not to mention a cost of $5,000.00 a day or so to taxpayers.) I had heard about a one-day jury trial program that was being done in Arizona, and I obtained some basic materials on how it was run. I mentioned the idea to some insurance attorneys, and most seemed very positive about having exploring this option .

Initially, myself, and insurance defense attorneys Bill Turner, and Halina Jones met several times. . We reviewed the Arizona rules and formulated our own proposed system.

From that point forward, Bill Turner took over the project. I cannot say enough good things about how much effort and diplomacy Bill has used in bringing the project into fruition.

After the initial proposal was made, Bill formed a committee of several people, from the North and South, and from both the plaintiff and defense sides, to review the proposal. Even though myself, Bill, and Halina all thought that the program would work best

if it was mandatory (and as I recall, the District Court Judges who were involved also had that

opinion), the committee that was formed by Bill (wisely allowing all sides to participate) had some on it who would not vote in favor of the proposal if it was mandatory. Therefore, the short trial program, as adopted at that time, was done on a voluntary, not mandatory basis.

Unfortunately, the voluntary nature of the program did not seem to work as well as envisioned. To-date, I think something less than 40 short trials have been held in Clark County (this over a period of a few years); and less than 5 in Reno. However, despite these numbers, the jurors who participated in the program gave uniformly rave reviews; the District Court Judges who could transfer cases to the program were very happy to free up their courtrooms for more important cases; and the tax payers of this State saved hundreds of thousands of dollars. The plaintiffs who participated in the cases were able to put on trials without incurring thousands and thousands of dollars in taxable costs; and the defense side was able to put on a case, before a jury, without running up large litigation expenses. Despite these positive outcomes, there still was a reluctance for people to stipulate to the short trial program, mostly, I think, because it was something foreign and new.

At the urging of Chief Justice Gibbons in the Nevada Supreme Court, and several of the District Court Judges, Bill put together another committee to reformulate the rules for the short trial program. As usual, Bill did the heavy lifting. Arbitration Commissioner Beecroft was also very involved in all phases, and provided us with intelligent insight, statistics and insider perpective; and kept us from formulating rules that would have had negative results the rest of us could not foresee. Court Administrator Chuck Short gave us invaluable input on the logistics of making the program work "in the real world." i There was a generous sampling of members from both the plaintiff and defense bar on the committee, and many compromises were made to protect the interest of each side.

We have now come up with a final version, which Bill will be submitting to the Nevada Supreme Court for review. No doubt, the Nevada Supreme Court will improve upon the draft; so, I cannot guarantee that what I am setting forth in this column will in fact be what the Nevada Supreme Court will pass as a rule. But, I think it is interesting to know about the draft proposal at this stage.

The first and most important change is that the short trial program will become mandatory for all civil cases with a value of less than $50,000.00. This means that all the "de novo" PI cases will go into the short trial program, not to District Court "regular" jury trial.

The program will apply not only to District Court, but to p.i. cases in Justice Civil Court as well. (Apparently, a bill was passed in the final days of the state legislature, the final version of which I have not seen, that reputedly will limit the cases from Justice Court to one half day. Again, I have not seen the final bill, so this is more gossip than fact at this stage.)

The proposal currently is that the new rule will kick into effect for cases filed on or after January 1, 2004. Of course, all parties are encouraged to stipulate that currently pending cases be put into the one-day jury trial program, but it will only be mandatory for those cases filed after January 1.

And, as to cases filed after January 1, there will be the option to go directly into the short trial program without an arbitration if the parties stipulate. Absent stipulation, however, the smaller civil cases will still go into the "regular" mandatory arbitration program . However, once those cases are into that program, either side may request that, instead of arbitration, the case be sent into a mandatory mediation after discovery is sufficiently completed, with a panel of mediators to be selected in a manner similar to how the current panel of one-day jury trial judges are selected. These mediators, if they are unable to get the case settled, will issue an opinion as to value; that opinion will then serve as somewhat of a "offer of judgment" standard, that is, if either side does not agree to this amount, and if they do not "beat" this amount, then they will be liable for attorney’s fees and costs as though it was an offer of judgment. However, the amount of attorney’s fees that they will be liable for will be limited to $3,000.00, in accordance with the current rules on attorney fee awards in arbitration cases. This is similar to what is currently being done with settlement conferences on medical malpractice cases.

Although some members of the committee were in favor of abolishing the mandatory arbitration program entirely, Commissioner Beecroft made the point that statistically the arbitration program has a rate of resolving cases at a rate of nearly 70% one way or the other, and it was felt that totally abolishing the system would risk losing the benefit of a 70% "kill rate" on cases that are filed.

The mediation process will have a mandatory requirement that an adjuster with checkbook authority be present.

Some concern was raised about what if plaintiffs attorneys request mediation, and they’ re unsuccessful; would not that be a waste of time?

Personally, I think that this will not be a problem, because the experienced plaintiff’s attorney will know not to request mediation for cases that are "hopeless" for being resolved in that form. There are a few insurance carriers that just do not want to settle anything, and I think those carriers are well known, or should be well known, to the experienced plaintiffs attorney. Plus, even if the mediation is unsuccessful, the parties will at least obtain an objective third party observer’s opinion as to the value of the case, which will be helpful in getting it settled, hopefully.