 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Canterino v. Mirage Casino-Hotel3/19/2002
the jury or a request for a mistrial. The record below suggests that defense counsel could have reasonably concluded that the histrionics of Canterino's counsel were having a negative rather than a positive effect on the jury. This, however, turned out not to be the case. The jury verdict in this case was the result of a calculated risk taken by an experienced attorney retained at the election of the client. We should not intervene to disturb this kind of dynamic in civil cases.*fn17"
Thus, my decision that a full trial on liability and damages is necessary is not at all based upon the allegations of misconduct made against Canterino's trial counsel. Rather, it is based upon the fact that we should have adopted the rule on the jury communication issue adopted by the Arizona Supreme Court.
AGOSTI, J., concurring:
I concur with the majority. I write separately to respond to the concurrences of Chief Justice Maupin and Justice Rose. Rehearing was granted in this case pursuant to NRAP 40(c)(2), which states: "The court may consider rehearings in the following circumstances: (i) When the court has overlooked or misapprehended a . . . material question of law in the case . . . ." As the majority notes, we relied in our original opinion on Perkins v. Komarnyckyj, an Arizona case, but failed to apply its holding to the question of whether all jurors must participate in all deliberations. We granted rehearing for the limited purpose of examining Perkins to determine whether we should adopt its reasoning for Nevada. The concurring justices, however, have now taken the opportunity to discuss matters not on the table for rehearing and have rendered advisory opinions on an issue not currently before the court.
Chief Justice Maupin "weighs in" with an opinion on the legal principle he would have adopted in a case from which he recused himself, DeJesus v. Flick. He reminds us all that DeJesus was a four-to-three split decision and that the fourth majority vote was a district judge sitting by designation in his place.
I suggest that it may be inappropriate to gratuitously remark about how one would vote on an issue not before the court for resolution. We do not know whether the identical issue is pending in a case awaiting resolution before us or in any court. I think the better course is to decide a case in controversy when it is presented.
ROSE, J., concurring:
I initially applied DeJesus v. Flick to the facts of this case, as I felt obligated to do. In doing so, I determined that the attorney misconduct here is similar to that cited in DeJesus, and under the DeJesus standard, the damages here are clearly excessive when compared to the proven injuries. Therefore, I felt that the entire judgment should be reversed, as we are now voting to do on a different basis on rehearing.
However, in applying the DeJesus test, one aspect of it presented a major problem—the search for an objective standard in determining whether damages were appropriate or excessive. The DeJesus majority used the medical expenses to gauge whether the damages for pain and suffering and permanent injury were excessive. But great damages can result from an injury that requires minimal medical expenses—as is often the case with mild to moderate brain injuries. We are attempting to apply some objective standard to injuries that are proven largely by subjective testimony. If we are to continue with the DeJesus analysis, I would eliminate the "objectively reasonable" standard when reviewing damages, and instead, review the damages awarded to see if substantial evidence supports their award.
The concurrence of Chief Justice Maupin on rehearing voices
Page 1 2 3 4 5 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|