Court slams attorney for attacking frivolous suits
Nevada Supreme Court
CARSON CITY -- The Nevada Supreme Court has hauled over the coals an attorney who criticized frivolous litigation during several lawsuit trials involving insurers in 2004.
The high court almost unanimously ruled last week that Las Vegas attorney Philip Emerson should be fined heavily and disciplined by the State Bar of Nevada for his statements deemed contrary to plaintiffs' interests. Only one of its seven members - Justice Ron D. Parraguirre - disagreed with imposing sanctions on Emerson.
The court ruled that the language Emerson used in each of four closing arguments during civil lawsuit cases constituted "attorney misconduct."
A common theme of Emerson's contentious summations was the following: "People must take responsibility for their lives and not blame others for challenges and setbacks. People must stop wasting taxpayers' money and jurors' valuable time on cases like this."
But the Supreme Court ruled such sentences to be "impermissible jury nullification," or statements aimed at swaying the jury to decide the case not on its merits but to make a wider social statement.
On another issue, the justices singled out Emerson's statement: "Because it's cases like this that make people skeptical and distrustful of lawyers and their clients who bring legitimate personal injury suits." The court called this statement an example of Emerson "impermissibly injecting his personal opinion about the justness of a case."
They also objected to Emerson stating in another case after asking jurors to imagine their child injured: "Is that an opportunity, does that mean you just go out and sue-negligence? It's an accident."
The Supreme Court ruled that statements like these "amounted to an impermissible golden rule argument," which asks that jurors place themselves in the position of one party. The bar forbids such arguments in civil cases.
In none of the cases were Emerson's statements objected to at the time. In three of the cases the plaintiff lodged an objection to Emerson's statements after the court initially ruled against the plaintiff.
The Supreme Court's decision that Emerson be fined and disciplined ruffled some feathers in his home town.
An editorial yesterday in the Las Vegas Review described the decision to fine Emerson all attorneys' costs in the cases as "appalling," stating: "Attorneys deserve the widest latitude in making the best possible arguments on behalf of their clients."
"The court should have congratulated Mr. Emerson for speaking the plain truth, meantime asking the lower courts why we haven't yet seen more judges sanctioning members of the plaintiffs' bar for attempting to reach into the 'deep pockets,' milking their 'marks' with frivolous lawsuits," the paper concluded.
Nevada trial lawyers weren't so sympathetic to Emerson. Steven J. Klearman, editor of trial lawyer-focused blog injuryboard.com, wrote that the decision reflected poorly on Allstate, the defendant in each case.
"For years, Allstate has managed to anger trial attorneys and others with its practices," Klearman wrote yesterday on his blog. "Now, the Nevada judiciary has given Allstate special dubious recognition."
An e-mail on the blogsite referred to Emerson as an "Allstate 'captive' attorney."
The current Nevada Supreme Court first alienated conservatives in 2003 when it ruled 6-3 that funding public education took precedence over a requirement for a two-thirds majority for the legislature to raise taxes. After alienating them even further by removing the Tax and Spending Control (TASC) initiative from the ballot last October, one political observer predicted "a conservative backlash."
In the November election, voters responded by kicking out Justice Nancy Becker, the first of the judges in the 2003 majority decision to stand for re-election. Becker lost to former District Court Judge Nancy Saitta by a margin of 49 percent to 38 percent.