Young Man Says Local Attorney Saved His Life

A twenty-five-year-old young family man and manager of a local fast food restaurant was charged with a felony non-violent crime.  He did not have a lot of money to hire a private attorney and therefore was appointed a public defender.  He eventually had two public defenders on his case who negotiated what he thought was a good deal for him. 

This young man is a lawful permanent resident of the United States and he repeatedly asked if he would be deported to El Salvador, a place he had not been to since he was a young child.  One of his friends was recently deported to El Salvador and was promptly killed by the MS-13 gang there.

The public defenders said that he may be deported but they were not sure and that he would have to consult with an immigration attorney.  They suggested he take the plea deal because it meant that he would not get any prison time, even though it would be a felony conviction.  He took the deal and was returned to his family and his job.

Three months later, immigration officials arrested him and put him in lock-up for deportation to El Salvador.  This young man knew no one in El Salvador and faced the prospect of being killed or joining a vicious gang to survive.  Likely, he would never see his newborn child again.

While he was in lock-up, his family looked for an attorney to help him and found my friend attorney David Jacks.  David tried many procedures and filed documents with both federal immigration court and criminal court in Las Vegas.  His task was daunting and many criminal defense attorneys he turned to for guidance, including me, were skeptical that he could get results.  Over the next three months David optimistically worked every week on the case until he was able to get the Nevada criminal court in Las Vegas to reopen the case and overturn the conviction.  This post-conviction relief is a very difficult criminal procedure in Nevada and rarely is accomplished. 

To David’s credit, owing to hard and persistent work on the case, he succeeded in getting the conviction overturned and the crime reduced to a non-deportable offense -- a misdemeanor.  Once Las Vegas, or the State of Nevada, reduced the charge, the federal immigration court had no choice but to release the young man.  

After three months being locked up and facing almost certain deportation to a country where death or horror awaited, David Jacks’ work returned the young man to his waiting family.  Moreover, because the conviction was reversed, this young man can pursue US Citizenship, after which he will never face deportation again.

Later, the young man gave David a big hug and said, "You saved my life." 

Attorney David Jacks with happy client

CIVIL: Nevada Supreme Court Sides with Cigarette Company--and I Agree with Them

A man named Joe lost his wife in 1999 to brain cancer. The wife, Pam, had smoked for thirty years, starting in 1969, until she got lung cancer, which lead to her brain cancer. Back when Pam started smoking, cancer-stick companies only had to put general health warnings on the packages. It wasn’t until the 1980s that the warning labels had to include the threat of cancer.

Joe then did the American thing; he sued the manufacturer of Pam’s particular brand of coffin nails, Phillip Morris, in a Nevada federal court. He, or his attorney, told the court that Phillip Morris is strictly liable for Pam’s death. Strict liability is a lawsuit claim used when a business sells a dangerous product. If Joe can prove that Phillip Morris caused Pam’s death, Phillip Morris will have to pay. But Joe did not want to have to prove his case. Instead, he wanted the Court to make Phillip Morris prove that they did not cause her death. Usually a Plaintiff has to prove his case, but here, Joe figured the wicked Phillip Morris must disprove its case without Joe having to prove the normally required element of causation.

Joe basically wanted the court to tell the jury that the jury could presume that if the cigarette packages had the cancer warning when Pam started smoking, she would not have started smoking. In other words, Joe wanted the jury to assume from the beginning that Phillip Morris is in the wrong and Phillip Morris then had to prove that it was not in the wrong. Somehow, Phillip Morris would have to provide evidence that Pam would have smoked their cigarettes even if the cancer warning label had been on the packages--clear back in the 1960s. Come on now, that was the 1960s, dude. Do you really think a lot of the young people back then would have listened to warnings? I mean, gosh, wasn’t that the time of experimental drug use. Also, wasn’t the military actually handing out packs of cigarettes to the soldiers?

Anyway, Phillip Morris did not want to have to try to prove to a jury that Pam would have ignored the warning labels. They told the federal judge that this “heeding presumption” should not apply in this case. A heeding presumption is what I’ve been talking about--a jury may presume that a person would have heeded a warning if a warning had been given and the defendant then has to try to prove that the person would not have heeded the warning. It’s almost like a religious person asking an atheist to prove that God does not exist.

Well, since this is a federal case in Nevada and the federal judge did not know what to do, the judge decided to ask the Nevada Supreme Court what it thought. Does Nevada condone “heeding presumptions” like some other States do? The Nevada Supreme Court answered, “No!” Phillip Morris therefore won this little skirmish. Joe would have to prove causation.

You might ask why the Nevada Supreme Court would side with the manufacturers of death on this issue. Well, our scholars in black robes said that a heeding presumption is contrary to Nevada law and public policy. The Nevada Supreme Court is correct on the law issue. Nevada has never allowed heeding presumptions. And, I believe their point about public policy is sound too.

Joe said that other States have heeding presumptions because it forces companies to better label their products, and therefore heeding presumptions are good for the public, so they are good public policy. If companies knew they could be sued for not properly labeling their dangerous goods, then they would label them better.

Nevada is smarter than those other States, though, because we tell the companies that sell stuff here to make sure the stuff isn’t dangerous in the first place. If it’s not dangerous, then why would you have to warn? In other words, the public is safer when companies can be sued for strict liability. Warning labels do not make us safer, safer products do. I’ll end this with a Supreme Court Justice’s quote from the case:

[…] we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products.

If you still want to read this long, boring Nevada Supreme Court decision after I have taken all the trouble of explaining it, you may. The decision is called Rivera v. Phillip Morris, and it was decided in June 2009.

Copyright: August 23, 2009
By: Anthony M. Wright, Juris Doctor

FAMILY: Removing Your Child From Nevada

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If you have primary custody of your child and wish to move out of Nevada, you must first give notice to the other parent of your intention to move. If the other parent consents, then you may move without court intervention.

However, if the other parent does not consent, Nevada law requires the moving parent to file a "Petition for Removal". The non-moving parent can then file an answer arguing the moving is not in the best interest of the child and a difficult court battle will ensue.

The moving parent will have to prove that there is a "good faith reason" for the move. Nevada Supreme Court cases have declared that moving to pursue a romantic relationship is a good faith reason, so is moving to better one's occupation. The moving parent should also present evidence to show the following:

(1) The extent to which the move is likely to improve the quality of life for both the child and the custodial parent;

(2) Whether the custodial parent's motives are honorable, and designed to frustrate or defeat visitation rights accorded to the non-custodial parent;

(3) whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;

(4) whether the noncustodian's motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;

(5) whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the noncustodial parent. Schwartz v. Schwartz, 107 Nev.378, 383 (1991).

Once the moving parent has proven a good faith reason to move, the objecting parent must prove that the move is not in the best interest of the child, otherwise the court will grant the move.

Conclusion

It is advised that a contested removal should be handled by an attorney because if the petition is not completed correctly and the evidence not presented adequately, the constitutionally protected right to move can be hampered when balanced against the other parent's constitution right to raise his or her child.

FAMILY: Las Vegas Divorce in Two Months

Las Vegas is the town of quick marriages and quick divorces. Many States in the United States require a person to have resided in that State anywhere from six months to several years before a divorce court will exercise jurisdiction over a divorce.

Not so in Nevada. You need only have lived here for six weeks before you can file a Petition for Divorce. Once the petition is filed, the actual divorce date will depend on several factors including whether the spouse will cooperate, the court's calendar, and amount of property in dispute, and disputes over child custody. However, if both spouses can agree on everything, then a divorce decree could be filed within a couple of months.

However, there are a few caveats regarding the six-week residency rule. For instance, Nevada law requires that a person reside continually in the State for the six weeks. This means that one cannot go to Vegas, leave immediately for several weeks, then come back and claim to be a resident for purposes of jurisdiction.

Another caveat is that you must have the intent to remain indefinitely. This means you have to show that you intend to really make Nevada your home. One can do this by getting a Nevada's Driver's License, renting a place (I recommend month to month leases). and getting a job.

You must also provide a witness who will testify that you have lived in Vegas for six weeks.

I always recommend that a Nevada attorney handle a divorce. However, fast, easy divorces, such as the ones contemplated in this article, should not be expensive. An attorney should charge between $1600 and $2500. More would be expensive for the work involved.