“Once more unto the breach, dear friends, once more.”
—King Henry, from Henry V
As you are reading this message, the 2025 Nebraska Unicameral session is now underway in earnest. By now, we have a clearer picture of the new threats being brought forward by the insurance and trucking industries. A call for help in pushing back against the latest round of tort reform efforts has almost certainly already gone out. In an ideal world, the looming threat of tort reform did not materialize, and this entire article is obsolete. Such is the slower nature of printed media in the modern world. Nevertheless, a King Henry rallying call to the cause remains appropriate out of an abundance of caution.
In many ways, this is nothing new. The Nebraska Association of Trial Attorneys has been fighting against the insurance industry for decades attempting to keep the playing field as level as possible for everyday Nebraska citizens. Decades ago, this was less of a combative endeavor and more of a cooperative effort by the two sides. In recent years, any cooperation appears to have vanished. This is particularly truly in light of what was attempted in the Unicameral last year and what has happened in state legislative bodies around the country.
Last year saw the introduction of the LB 912, a seemingly limited bill aimed at allowing insurance companies to alter the statute of limitations pertaining to underinsured motorist claims. The bill was assigned to the Banking, Commerce, and Insurance committee and a hearing set for January 22, 2024. It quickly became clear during the hearing that LB 912 was intended to be a trojan horse bill to effectuate broad tort reform exclusively favorable to the insurance industry and large commercial trucking companies. Representatives from the insurance industry and from the commercial trucking industry stepped forward to speak in favor of LB 912 and casually recommend the following be added to the bill:
• Placing a hard cap on commercial trucking cases.
• Reducing the statue of limitations across the board for all Nebraska personal injury cases.
• Reversing our current law on the billed vs. paid measure of damages for medical bills.
• Further restricting claims that could be brought under the State Tort Claim Act.
• Abolishing negligent hiring and supervision causes of action against commercial trucking companies.
• Abolishing the current seatbelt rule for personal injury cases.
This obviously was a coordinated effort. We were fortunate last year that this bill died in committee before these efforts came to further fruition.
Since last session, we have caught wind that there will be a more direct attempt to bring all of these issues back to the Unicameral. Again, as you are reading this, you almost certainly
2
PRESIDENT
Mark Richardson, Lincoln
PRESIDENT ELECT
Jennifer Turco Meyer, Omaha
SECRETARY
Elizabeth Govaerts, Lincoln
TREASURER
Cameron Guenzel, Lincoln
IMMEDIATE PAST PRESIDENT
Jonathan Urbom, Lincoln
Board Oversight Chair
Peter C. Wegman, Lincoln
NATA PAC Chair
Matt Lathrop, Omaha
DIRECTORS
Jason G. Ausman, Omaha
James C. Bocott, North Platte
Aaron Brown, Omaha
Eric Brown, Lincoln
Nathan Bruner, Kearney
John F. Carroll, Omaha
Gregory Coffey, Lincoln
Patrick Cooper, Omaha
Michael F. Coyle, Omaha
Tara DeCamp, Omaha
Joseph Dowding, Lincoln
Michelle Epstein, Omaha
Erin Fox, Omaha
Nancy Freburg, Kearney
Daniel Friedman, Lincoln
Mandy Gruhlkey, Omaha
Matthew Knowles, Omaha
Steven M. Lathrop, Omaha
Mandy L. Larson, Papillion
Danny Leavitt, Omaha
Kyle Long, Scottsbluff
Clarence Mock, Oakland
Robert R. Moodie, Lincoln
George H. Moyer, Jr., Madison
Michael Moyer, Madison
Kathleen M. Neary, Lincoln
Brody Ockander, Lincoln
Robert G. Pahlke, Scottsbluff
James Paloucek, North Platte
Ross Pesek, Omaha
Vincent M. Powers, Lincoln
Jeffrey Putnam, Omaha
Jon Rehm, Lincoln
Julie Shipman-Burns, Lincoln
Andrew D. Sibbernsen, Omaha
Terry Sibbernsen, Omaha
Mitchell Stehlik, Grand Island
Adam Tabor, Omaha
Julie Tabor, Omaha
Dan Thayer, Grand Island
Christopher P. Welsh, Omaha
Brock Wurl, North Platte
Executive Director
Deborah Neary
ASSOCIATE Director
Jane Jones
will have seen posts on the NATA Listserve soliciting help in defeating legislation of this nature.
The point of this message, that I’m just now finally getting to is – please answer the call! Please get involved in whatever way you can to help fight the good fight. Call past clients that would have had their claims abrogated by the new legislation. Call existing clients whose rights would be taken away. Ask them to testify. Offer to assist them in determining what they’ll say. Reach out to your own State Senator. Ask for a meeting with them as a constituent. We have research documents at-the-ready to help educate them. Volunteer to testify yourself.
The fates of our client’s legal rights often are decided in two places: the Nebraska Supreme Court and the Nebraska Unicameral. Several Supreme Court cases from the last five years have taken final case decisions out of the hands of Nebraska juries. (see State v. Moser (2021), Joshua M. v. State (2024), Clark v. Scheels All Sports, Inc. (2022), Christensen v. Broken Bow Public Schools (2022). NATA members across the State will continue to fight for the rights of injured Nebraskans as cases continue to come before the Court.
Our work in the Unicameral, however, can have a more immediate impact. We can take the Supreme Court up on its invitations to provide clear legislative intent on certain issues. Together, we can bat back legislation that seeks only to further increase the profit margins of large insurance companies and commercial trucking operations by shielding them from responsibility for their clients’ and drivers’ negligent conduct. Please take a moment to consider how you might be able to help. What have we not thought of that might be effective in getting our message to State Senators? What connections are out there through our NATA members that our Legislative Committee may not know about?
If you are reading this and thinking “I know something that might help” please contact me, Jennifer Turco-Meyer, or any other member for our Legislative Committee. We look forward to continuing the good fight on behalf of our past, present, and future clients. Or as King Henry would say:
“I see you stand like greyhounds in the slips, straining upon the start. The game’s afoot.”
Mark Richardson, President
editor Deborah Neary
Nebraska Association of Trial Attorneys 6173 Center Street Omaha, NE 68106
NEBRASKA ADOPTS IMPORTANT DISCOVERY CHANGES—EVEN TO PENDING CASES
On November 13, 2024, the Nebraska Supreme Court adopted comprehensive amendments to the Nebraska Court Rules of Discovery in Civil Cases, effective January 1, 2025. If you have practiced in Federal Court or Iowa State Court, you will see similarities. These changes impact various aspects of discovery, including methods, scope, expert disclosures, and sanctions. The amendments apply to cases filed after January 1, 2025, and there is a presumption that they also apply to cases pending on that date. (The court may exercise discretion if application of the new rules would be impracticable, unreasonable or unjust). Here are the key updates to know.
GENERAL PROVISIONS GOVERNING DISCOVERY (§ 6-326)
Discovery Methods has now been expanded to include mandatory disclosures.
Also, our discovery rules are now modified, adopting proportionality as a ground for seeking protective orders. Several years ago, the federal rules implemented a proportionality rule for dis -
Prepared by Matt Lathrop, Law Office of Matthew A. Lathrop
covery requests. Nebraska now allows a party to resist discovery and seek a protective order, if the party feels the discovery requests are burdensome.
A brief overview of the proportionality principle indicates that, [T]he court considers “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” The party resisting discovery on proportionality grounds still bears the burden to support its objections. … The practical effect of the rule is that both parties must typically provide information pertinent to the proportionality analysis. … This is because [a] party claiming undue burden or expense ordinarily has far better information — perhaps the only information — with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. …
“No single factor is designed to outweigh the other factors in determining whether the discovery sought is proportional, and all proportionality determinations must be made on a case-by-case basis.”
Ad Astra Recovery Servs. v. Heath, No. 18-1145-JWB-ADM, 2019 U.S. Dist. LEXIS 160898, at 12-14 (D. Kan. Sep. 18, 2019) (Citations omitted).
Parties claiming material is protected by a privilege must expressly make the claim, and describe the nature of withheld documents to enable assessment of privilege claims. (Rule 26(b)(4)).
The new rules also address inadvertent disclosure of privileged materials. A party disclosing must notify the other side and request the documents back. The privilege is not waived. A party receiving materials the party knows or should know is privileged, should notify the disclosing party and return the material.
DISCOVERY FROM EXPERTS (§ 6-326(C))
The court has now adopted a mandatory expert disclosure process. Parties must disclose expert witnesses and provide detailed, signed reports for retained experts. Treating physicians are not required to provide written reports unless testifying outside the scope of treatment.
The report must include a complete statement of all opinions and the reasons for them; facts and data considered; any exhibits that will be used to summarize or support them; a list of publications the expert will rely upon; a curriculum vitae or a list of qualifications for the expert; and the “title, court, case number of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition, performed an independent medical examination, or otherwise provided evidence as an expert, and for each such case, the party who retained the witness;” and a statement of the compensation to be paid.
Disclosure of expert testimony is now tied to the pleadings. Disclosures must be made by both parties within 180 days after the first responsive pleading or 45 days after another party’s disclosure if intended to rebut.
Draft reports and communications between attorneys and experts are protected, except as to compensation, facts relied upon, and any assumptions the retaining attorney provided.
If the witness is of a type who is not required to provide a report by rule, the party’s disclosure of that witness must state the subject matter on which the witness will testify; provide a summary of the facts and opinions; state the qualifications of the witness or provide a c.v.; and state the compensation to be paid.
A treating physician retained specifically to provide expert testimony, must provide a written report under Rule 26(c)(1)(A). The committee notes to the new rule discuss treating physicians who will testify about causation. Are these “experts” under the “reports” rule, or just under the “disclosure” rule? The comments clarify that “a treating physician is not required to provide a written report solely because the physician’s testimony may discuss ‘the diagnosis, prognosis, or causation of the patient’s injuries.’”
If the physician is expected to testify consistent with the party’s medical chart, the rule states that the doctor will do so, even if that chart contains the records of other providers.
However, note carefully that if the treating physician is asked to provide opinions outside the course and scope of the treatment provided (or causation of the injuries necessitating the treatment) then the treating physician falls under the category of an expert requiring a report. Thought should be given to the possibility that a report may be required, if the expert is going to provide rebuttal opinions, addressing the conclusions of defendants paid medical examiner.
Discovery responses must be supplemented or corrected in a timely manner if the party learns that the original disclosure is no longer complete or correct. Importantly, this duty also extends to any expert who is required by rule to provide a report, the party is required to supplement disclosures regarding information in the report and testimony given during the expert’s deposition.
DEPOSITIONS (§ 6-330)
Depositions can be taken in person, by videoconferencing, by telephone, or a combination of these methods, without leave of court.
In the case of a deposition of an organization, the parties must confer in good faith about the matters for examination. The hope is that the discussion will lead to a clarification of topics to be discussed and better allow the organization to identify and designate the person or persons who will testify.
The rules now make clear that a person can not be excluded from attending the deposition of another witness, just because that person may be deposed later. The rule makes clear, if a party wishes to exclude anyone from attending, the requesting party must get a protective order.
The rule now provides that if a party engages in “misconduct that impedes, delays, or frustrates the fair examination of the deponent,” such as with repeated interruptions, repeated improper objections, or repeatedly instructing the witness not to answer, then the court has discretion to impose sanctions.
If production of documents is requested in connection with a deposition, by document request (Rule 6-334) or by subpoena duces tecum (§ 25-1224), the rule clarifies that the response time for either method is 30 days. This avoids trying to shorten the response time to 14 by using a subpoena for production connected with a deposition.
USING DEPOSITIONS IN COURT PROCEEDINGS (§ 6-332)
The rule clarifies the conditions for use of depositions at trial. Depositions taken by audio, or audiovisual means must be presented in such format to a jury if any party requests. However, this does not apply to the use of deposition testimony used for impeachment purposes only.
Any objection to competency or relevance of any testimony in are waived if not raised during a deposition, if the defect could have been corrected. Also, and new to the rule, if a deposition was recorded by audio or audiovisual means only, the objection is waived by the failure to make the objection to the court before the hearing or trial. Consistent with this, then, the party planning to use the audio or audiovisual format to present testimony at trial, must provide advanced notice to the court and all other parties. If the deposition is recorded only by audio or audiovisual means, the
party is required to provide the court with a written transcript of the deposition, for hearings and for trial.
INTERROGATORIES
(§ 6-333)
Parties are limited to 50 interrogatories (including discreet subparts) unless the court permits more for good cause. The rule does not guide a party on how to count the interrogatories. However, the comments indicate that in interpreting the same rule, federal courts indicate that the interrogatory is counted as a single request if the “subparts are logically or factually subsumed within and necessarily related to the primary question.” (Cite to case omitted).
Upon request, interrogatories must be provided in a readily editable electronic format.
The only significant change to the § 6-333 has to do with objections. The new rule is specifically going after the use of “boilerplate objections.” Now, objections must state specific grounds and reasons for the objection. It is important enough to quote the committee notes here:
[No longer permitted, are] objections that state objections in a conclusory way (for example, “burdensome, oppressive, and irrelevant”) without explaining the specific reasons for the objection. Requiring parties to state the specific reasons for the objection may discourage the parties from making baseless objections and may also help them resolve discovery disputes informally by identifying the specific problems that the objecting party has with the interrogatory.
There are numerous federal cases decrying the use of “boilerplate objections” and instructing lawyers on the requirement to state the grounds and explain the objections. Perhaps one of the more in-depth discussions is found in Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 184 (N.D. Iowa 2017).
REQUESTS FOR PRODUCTION
(§ 6-334)
As with interrogatories, requests must be provided in a readily editable electronic format upon request. And again, objections to production must first be to a specific request (rather than blanket objections) and then state specific grounds and reasons, and indicate if any materials are withheld. This would include withholding of part of a large batch or group of documents. Any objection not stated in a timely manner is waived.
If an objection is made to part of a request, the objection must specify which part and produce the rest.
Production Options: Responding parties can produce documents as kept in the usual course of business or organized to correspond with the request.
NONPARTY DISCOVERY
(§ 6-334(A))
Under the new rule, subpoenaes duces tecum require production. The recipient is only given the option to allow inspection, instead, if the requesting party indicates in the subpoena. Requests to produce under Rule 34, still allow the option as a right. The time frames for compliance are now set in 7-day increments. So the minimum time to comply is now 14 days, rather than 10.
Objections to subpoenaes (6-334(A)) are required within 14 days. Objections to motions to produce (6-334) are required with-
in 30. Failure to make the objections such as relevance or undue burden, within these time frames is deemed a waiver, unless based on a privilege or work product objection.
Parties must now give 14 days’ notice before issuing a subpoena.
PHYSICAL AND MENTAL EXAMINATIONS
(§ 6-335)
The only substantive change to the rule, now requires that proposed examinations must be conducted by suitably licensed or certified examiners. Courts now have the discretion to asses the proposed examiner’s credentials “to ensure that the examiner has the expertise necessary to perform the proposed examination.”
REQUESTS FOR ADMISSION (§ 6-336)
Requests now can not only seek admission of facts, or the application of law to a fact (often improperly used as a basis for objecting to the request), but also now, opinions about either. In addition, requests for the admission to the genuineness of a document are still allowed.
Responding parties must specifically deny each individual request, or explain “in detail” why the matter cannot be admitted or denied.
SANCTIONS (§ 6-337)
Prior to filing a motion to compel, parties must attempt to resolve disputes informally.
A motion for sanctions by a party must include a certification that the moving party has made a good faith effort to confer and cure the discovery defect. The rule now specifically eliminates, as an excuse, any argument that the discovery request was objectionable, unless there is a motion for protective order pending. Courts can impose sanctions on parties, attorneys, and their law firms for failing to comply with discovery orders.
The court has added specific sanctions for failing to preserve electronically stored information, including measures to cure prejudice and severe sanctions for intentional deprivation including presumption that the information was unfavorable, instruction to the jury that they may presume it was unfavorable, or dismissal of the action.
CONCLUSION
Overall, these amendments aim to streamline discovery processes, enhance clarity, and ensure fairness in civil litigation. They bring Nebraska’s discovery rules more in harmony with long-standing and effective federal discovery procedures. Becoming familiar with these changes will help to effectively navigate the updated rules, avoid inadvertent discovery missteps, and even potentially avoid potential sanctions.
REGISTER NOW
PRACTICE POINTERS
For more information on the Rules Changes, John P. Lenich, J.D., from the UNL College of Law, will be presenting on this topic at the MCLE Seminar February 21. Find the full agenda and register at www.nebraskatrial.com .
NATa PAC by Matt Lathrop
Bringing the Pain and Suffering
I apologize if this column lacks my usual flair; I am rushing it to press to address an urgent matter.
This legislative session, two significant bills—LB199 and LB205—have been introduced in the Nebraska Legislature. If enacted, these bills will profoundly affect our ability to secure justice for our clients in personal injury cases.
LB199: COMPRESSING TIME, INCREASING PRESSURE
Introduced by freshman Sen. Tony Sorentino, LB199 proposes reducing the statute of limitations for personal injury claims from four years to two years for actions accruing after the bill’s effective date. It also expands the Nonrecourse Civil Litigation Act to include administrative proceedings, requiring mandatory disclosures of litigation funding to opposing parties.
This reduction in the statute of limitations will place immense pressure on plaintiffs and their counsel. The shorter timeline will force earlier filing of lawsuits, leaving little room to build strong cases in complex claims
companies.
• Medical care and vehicle repair have outpaced inflation over the last 25 years, while minimum insurance levels have stagnated.
• When auto insurance fails to cover property damage or medical bills, 23% of the costs are borne by the victims, and the rest falls to taxpayers, local government, health care providers, and even charities.
• Raising minimums does not lead to higher premiums for consumers. In fact, states that raised their minimums actually saw a lower increase in insurance cost – 1.47% on average – than the country as a whole at 1.95%.
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• Raising minimums does not lead to more uninsured drivers. Data shows that states with higher minimum auto insurance levels have lower rates of uninsured drivers.
Auto insurance minimums dictate the lowest amount of coverage an insurer must provide to protect drivers and the public at large. Set by state law, many auto insurance minimums were established in the 1970s and have not been updated, leaving the amount abysmally inadequate for today’s needs.
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For example, first established in 1974, Pennsylvania’s minimum covers only $5,000 of property damage in a car crash. If a person is injured or dies in a crash, the minimum amount covered is just $15,000. That amount rises to $30,000 if two or more people are injured or die.
• Complimentary travel within the state of Nebraska
“When auto insurers only cover half of the expenses from car crashes, drivers and taxpayers are left holding the bag. To better
continued from page 6
requiring extensive investigation. Compounding this burden are the mandatory expert disclosure deadlines recently imposed by the Nebraska Supreme Court’s discovery rules. Together, these changes create a system that compels plaintiffs’ attorneys to “shoot first, ask questions later,” risking incomplete or premature litigation.
Identifying, suing, and serving the correct parties within the abbreviated timeline will necessitate filing lawsuits before fully understanding the case’s scope. This will likely lead to more defendants being named initially, resulting in skyrocketing litigation costs for insurance companies and corporate defendants. Plaintiffs, too, will bear the brunt, as the reduced timeline forces them into early, preemptive lawsuits—potentially disrupting alternative dispute resolution efforts.
LB205: UNDERMINING FAIR COMPENSATION
Introduced by Legislative Committee Chair Sen. Carolyn Bosn, LB205 imposes caps on noneconomic damages and restricts evidence related to medical expenses.
The bill seeks to alter longstanding case law and statutes governing the admissibility of medical expense evidence. By limiting recoverable medical expenses to the amounts actually paid or standardized rates (e.g., Medicare or Medicaid), LB205 eliminates the “collateral source rule.” This change unfairly benefits negligent defendants, allowing them to exploit insurance payments they neither secured nor funded.
Moreover, the bill neglects to address the financial burden plaintiffs endure from insurance premiums or the insurance industry’s right to first-dollar recovery under ERISA subrogation claims. Our clients are, in effect, victimized multiple times—first by negligence, then by the legal system’s failure to ensure full accountability.
LB205 also caps noneconomic damages in cases involving commercial motor vehicles at $1 million, a move that blatantly devalues Nebraskans’ pain and suffering. Why are the losses to Nebraskans injured or killed by drunk, high, sleep-deprived, unqualified truckers, worth less than if the same damages were caused by any other drunk, high, sleep-deprived driver? This cap disproportionately affects individuals with catastrophic injuries or wrongful death claims, including stay-at-home parents, children, and the elderly, who may have significant noneconomic damages but limited economic losses.
Statutory caps violate the constitutional right to trial by jury, stripping juries of their ability to fully assess and award damages based on case-specific facts. They also infringe on plaintiffs’ due process rights, limiting access to fair remedies for harm caused by negligence.
THE BROADER IMPLICATIONS
Both LB199 and LB205 undermine fundamental principles of justice and accountability. By limiting access to fair compensation, these bills erode equal access to the courts and diminish the rights of injured Nebraskans.
CALL TO ACTION
Time is short, and the stakes are high. I urge each of you to:
• Engage with legislators and share the real-world impacts these proposals will have on your clients.
• Educate the public about the dangers of limiting access to justice.
• Collaborate with advocacy organizations to safeguard the rights of injured individuals.
Finally, I ask for your continued support of the NATA PAC. Your contributions enable us to recruit and support candidates who prioritize full access to the courts and a fair justice system. Together, we can protect the rights of all Nebraskans and ensure that justice prevails.
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Lifetime Achievement Award Event
December 2024
Friday, February 21
LIVE AND WEBINAR
Nebraska and Iowa
MCLE Credit
6 Hours Including 1 Hour of Ethics
8 a.m. Registration
Serving continental breakfast. Sponsored by Great Plains Reporting
MORNING
8:30 a.m.
8:45 a.m.
9:30 a.m.
6450 Pine Str.
Omaha
SESSION
Welcome and Opening Remarks
MANDY GRUHLKEY, J.D., Program Chair The Advocates Injury Attorneys
Crash Reconstruction – What Types of Analysis and Data Can a Reconstructionist Provide?
CHRIS MANNEL, ACTAR
Nebraska Accident Reconstruction, LLC
Structured Settlements 101
CHRIS HARLAN, CEO, CSSC
Summit Structured Settlements
10:30 a.m. BREAK
10:45 a.m.
Estimating Economic Losses
DAVID ROSENBAUM, Ph.D.
Professor of Emeritus of Economics
UNL College of Business
11:45 a.m. LUNCH BREAK
Sponsored by Minnesota Lawyers Mutual
THE NEBRASKA ASSOCIATION OF TRIAL ATTORNEYS SEMINAR
PRACTICE POINTERS
AFTERNOON SESSION
12:30 p.m. Pleading Pivots: Key Updates to Nebraska’s Pleading Rules for 2025
JENNIFER TURCO MEYER, J.D. Turco Meyer Law
1 p.m. Substantive Changes to Nebraska Discovery Rules Effective January 1, 2025
JOHN P. LENICH, J.D. UNL College of Law
2 p.m. BREAK Sponsored by Precision Life Care Planning & Medical Analysis
2:15 p.m. Navigating the Complexities of Medical Malpractice: Ethical Considerations and Best Practices
JOHN CARROLL, J.D., R.N. Watson & Carroll
3:15 p.m. Motivations for Staying Aggressive in the Face of Challenging Political Prevailing Winds
MARK RICHARDSON, J.D.
Rembolt Ludtke
4 p.m. Closing Remarks
MANDY GRUHLKEY, J.D., Program Chair The Advocates Injury Attorneys
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PRACTICE POINTERS
There is a new development which complicates our work.
GOOD TIPS FROM ELIZABETH A. GOVAERTS:
by Vince Powers
From now on when we have clients who are Medicare beneficiaries, we need to be sure to open claims with BOTH CMS and Optum. Now all the supplemental plans are being administered through Optum, including United Healthcare and AARP, which are our most common ones. Additionally, they now have most of the Nebraska Medicaid plans as well. They seem to take a long time to respond, so we need to do it at the beginning of the case. The same rules apply to their subrogation claims as any Medicare subro, including penalties. Here is the link to the subrogation portal: https://subroreferrals.com/home
The actual practice of law, by which we help our clients and earn a living, remains very much the same as ever. Below are some easy to understand guidelines and rules for a successful practice, some of those which I consider to be significant, in no particular order:
1 Show up at work
2 Return your phone calls
3 Read the advance sheets
4 Avoid unnecessary conflicts with opposing counsel
5 Do not procrastinate. Recognize that your work will not be perfect and that it does not have to be perfect, but it does have to be done on time
6 Treat each opposing counsel in the manner you wish to be treated
7 Never forget the judges recognize that half the people who come before them will lose their case. It’s not personal, it’s just reality. Someone will win and someone will lose. It is likely in 2025 that each of us will lose cases that we strongly believe we should have won. But if you focus on the loss rather than on your next case you will likely be unhappy
8 Never, ever borrow from the Internal Revenue Service. If you cannot pay your employees’ withholding to the IRS, then you should let that employee go find another job. The idea that you will be able to make some money quickly to pay the IRS is probably not realistic. What will happen is that there will be interest and penalties and stress and anxiety and unhappiness if you borrow from the IRS.
9 Keep your overhead low, but do not deprive yourself of an office which is comfortable and roomy as you will spend a significant part of your life in that office. Put a painting on the wall if you like art, play music in the background if it relaxes you. Make sure that when your client enters your office, she or he will recognize that you have been successful in your chosen field. It’s not necessary to have an opulent workspace, but do have a comfortable workspace
10 Admit your mistakes rather than try to camouflage them
11 Fire the client who gives you the headache. Some folks are never going to appreciate your work and your skill so there is no reason to represent them
12 In the courtroom unless you do criminal defense work, dress neutral. By that I mean where appropriate clothing but not garish outfits that call attention to yourself because it is not about you, it really is about your client
13 Even in this age of emails and text messages, the 24 hour rule remains very important, do not hit send on an e-mail that you have composed after reading an incendiary e-mail for text rom opposing counsel. Wait 24 hours and then decide if you really need to send that clever, crafty but ultimately insulting e-mail to your adversary. Ask yourself if you’re sending the e-mail to help resolve the dispute or if it is to make you feel good that you have responded in kind to a condescending or insulting e-mail. Never forget that you will not be paid for that e-mail but if you engage in that string of communications all you’re doing is making your adversary money because she or he builds by the hour and you don’t.
14 Never ever and I mean never, repeat the phrase “independent medical examination” in a civil suit. There is no such thing as an IME in a tort case.. If you are using that phrase you are telling defense counsel that you are inexperienced and will be taking $0.50 on the dollar to resolve the case. The defense upon a showing of good cause may be able to have your client undergo a defense medical examination. These examinations are not automatic as the Nebraska Supreme Court has held may only be ordered only upon a showing of good cause by defense counsel
15 The weakest person in the room is the one who yells the loudest.
16 After you finish reading this article book your vacation for the summer and the fall.
17 Always remember that regardless of the jury verdict you are a better lawyer when you walk out of the courtroom after your closing argument and then when you began your opening statement
18 Judges prefer that the lawyers who practice in front of them are good at their craft as it makes their job easier and more enjoyable. As a result if you ask a judge to critique you during your trial, she or he will would be happy to do so. Judges are a great reservoir of knowledge and information because generally they were good at trials before they became judges and once on the bench they have sat through numerous trials and thus can give you tips and advice after the after the trial
19 Understand that for some insurance companies, mediation is just the first offer so be prepared to walk out without the case being settled
20 As a part of a mediated settlement, ask to have your opponent’s mediation statement be given to you along with the check and release. Inevitably that statement will be well written and detailed with respect to the liability issues and importantly to the medical issues. When it is time to negotiate liens, having that statement available to transmit to the lien holder will make it easier to explain why you are unable to make your client whole and why there was a great risk at trial that your client would not obtain a fair result
21 Don’t chase the big verdict or the record verdict, when it comes, it will be unexpected and you will be surprised.
22 Remember that the case most likely to get called up for trial is the one that you did sufficiently prepare for trial
23 I have been involved in focus groups that have ranged in cost from $500 to over $100,000 and every single focus group has been worth the time and money
24 Be a giver not a taker-- make sure you contribute to the NATA PAC
25 Base you’re projected personal overhead on your income from your worst month not your best month.
26 Review last year’s top 5 cases based upon the fees earned and determine why that client came to you. Was it through marketing on the Internet, advertising on television or newspaper or radio or was it by client referral or lawyer referral? Whichever was the source, focus on that path going forward.
27 Remember generally that the plaintiffs personal injury lawyers who make the most money have the fewest cases.
28 State and federal progression orders are treacherous for plaintiffs lawyers as they have deadlines that can become a death penalty for your case
29 Do not wait until the end of the year to contribute to your retirement account. Fund it monthly so that it will be maxed out every year.
30 When the unexpected large fee comes into your office do not treat it as a windfall but instead invest in VOO or another Index ETF.
31 Always keep your eyes open for an opportunity to buy a building to locate your law office. No one’s going to buy your law practice because there’s nothing to sell, the client owns the file not you. If you own real estate you have something for income when you retire.
32 Never forget that the code of professional responsibility which requires you to zealously represent your client also applies to defense counsel
33 How you conduct yourself in your private life will reflect on whether persons will refer clients to you. No one is going to send a case to the crazy parent who screams at the referee in a grade school basketball game or soccer game.
34 A good way to calm your nerves before trial is to drive through a cemetery on the way to Court
35 As a lawyer from Florida told me in response to comments about verdicts being low in Nebraska, “that just means you guys up there don’t ask for enough money from the juries”
36 Don’t allow the defense bar to control your environment and psyche, don’t let them set the parameters for civil litigation and importantly for the value of your clients case
37 Don’t be the lawyer who views other lawyers as competitors and therefore refuses to participate on list serves or share his or her knowledge. Understand that all boats big and small rise on the same tide
38 Celebrate the successes of your fellow Nebraska plaintiffs lawyers. It’s not easy out here.
39 Read Blue Cross and Blue Shield v Dailey, 268 Neb. 733 (Neb. 2004) every year. “In the case at bar, the subrogation and right to recovery provisions of the insurance policy are contrary to Nebraska law, which requires that an insurer cannot recover under subrogation unless the insured has been made whole.”
It is likely the most important case for our clients in the 21st century. As the dissent stated: “As I understand the reasoning of the majority, if an injured party settles for 99 percent of full compensation, a subrogated health insurance carrier could recover nothing from the settlement and its rights against the tort-feasor would be extinguished.”
40 In the end, your income and quality of life will be determined in large part by your case selection. “Choose wisely”.
THE PRAIRIE BARRISTER
by Ross Pesek
The Circle of Justice
In the bustling corridors of the Douglas County Courthouse, the busiest courthouse in Nebraska, the Prairie Barrister encountered an old adversary—a seasoned prosecutor known for their sharp wit and unwavering dedication to justice. The courthouse, with its grand rotunda ringed by murals and the sacred aura of its courtrooms, felt like a place where history and justice intertwined.
The prosecutor, recognizing the Prairie Barrister, approached with a playful smile. “Well, well, if it isn’t the Prairie Barrister. I seem to recall having the upper hand in our last courtroom battle.”
The Prairie Barrister returned the smile, their eyes reflecting memories of past legal skirmishes. “Ah, yes, those were the days. But you know, things have changed. Believe it or not, as a civil plaintiff lawyer now, I feel more like a prosecutor myself.”
Intrigued, the prosecutor raised an eyebrow. “Really? What brought about the change?”
The Prairie Barrister leaned against the hallway wall, reflecting on their journey. “In criminal defense, it often felt like drawing the short stick. Representing clients who were clearly guilty—some of those jury trials were what we called ‘slow pleas.’ You know, defending someone on their fifth DUI who hit a motorcyclist and was arrested on the spot. It is tough when the truth isn’t on our side.”
Photo Credit: Omaha World Herald
The prosecutor nodded, understanding the sentiment. “I remember those cases. You fought hard, but sometimes it was clear before the trial even started that you had drawn the short stick.”
“Exactly,” the Prairie Barrister agreed. “But moving to civil cases allowed me to choose my battles. I get to pick clients and causes I believe in, maybe with even more freedom than you do as a prosecutor. And if I am choosing sides, I’m choosing the side that has the truth as an ally!”
The prosecutor smiled, a knowing glint of respect in their eyes. “And how has that been for you?”
“Remarkably satisfying,” the Prairie Barrister replied. “Now, I represent victims of negligence. For example, instead of having the drunk driver who hit the motorcyclist as my client at trial, I get to represent the motorcyclist who got hit by the drunk driver. Just that makes all the difference in the world. It’s ironic—civil defense lawyers now find themselves in the position I used to be in as a criminal defense lawyer, defending the indefensible because someone has to do it!”
The prosecutor laughed, then said with seriousness, “Everyone deserves a defense. And it is best when you know your opponent has a good defense. An honorable trial lawyer wants to win fair and square when they know their opponent had every opportunity to defend themselves.”
They both acknowledged the weight of their responsibilities. “It’s about more than just winning cases,” the Prairie Barrister mused. “It’s about fighting for what’s right, for seeking truth and justice in a world that often feels unjust.”
The prosecutor agreed, “It does. And regardless of which side of the courtroom we find ourselves on, I respect the commitment to justice that drives you.”
The Prairie Barrister continued, their tone thoughtful. “You know, working these civil cases, I’ve come to see how civil
justice complements criminal justice. Civil justice can’t impose punishment or jail time, but it can provide direct benefit to victims. On the other hand, criminal justice can punish offenders but can’t offer direct relief to those harmed. Often, civil defendants are also criminal defendants. Our work, in a way, completes the circle of justice.”
“That’s a good point,” the prosecutor said. “And what you say about having the truth as an ally in the court is correct as well — the truth works like a protective aura in the courtroom. It shields its ally from all manner of false attacks. Jurors can see through the smoke and mirrors when they are presented with clear, honest facts.”
“Exactly,” the Prairie Barrister agreed. “And it’s our job to ensure that truth shines through, so the jurors can deliver a just verdict.”
As they stood there, two advocates on different sides of the legal spectrum, the respect between them was palpable. “You know,” the prosecutor said, “regardless of our roles, it’s clear we both aim for the same thing—justice.”
The Prairie Barrister nodded, their conviction unwavering. “Indeed. And as long as we stay true to that, we’re doing our part to make the world a little bit better, one case at a time.”
With a final handshake and a nod of mutual respect, the Prairie Barrister and the prosecutor parted ways, each returning to their duties with renewed purpose. In the hallowed halls of the Douglas County Courthouse, their paths might differ, but their shared dedication to justice remained a guiding light. As the Prairie Barrister walked back to their office, they felt a sense of fulfillment, knowing they had chosen a path where they could truly make a difference—standing up for truth and justice, and transforming lives through the power of the law.
verdicts & settlements
verdict
$489,600.00
Farm Equipment and Pedestrian Collision
Saline County
Date of Verdict: December 19, 2025
Plaintiff Attorneys: Francis Younes and Justin High
On November 4, 2014, Plaintiff was walking down a gravel county road about 2 miles outside of Friend, Nebraska, at night while wearing dark colored clothing. Defendants had finished harvest and were returning to their shop driving their farm equipment which included two combines. The driver of the leading combine did not observe Plaintiff and hit him with the head of the combine. Plaintiff was transported to a local hospital by ambulance and then helicoptered to a trauma center in Lincoln where he was in-patient care for 10 days. Plaintiff suffered a fractured cervical spine at the C6/C7 and some nerve damage.
A settlement was offered of $55,000.00. An accident reconstruction expert and a neurologist was used during the trial.
NATA YOUNG LAWYERS
by Sam D. Colwell
Being Nebraska Nice
As the holiday season ends, I hope all readers had the opportunity to cherish time with family and friends. One of my favorite parts of the holiday season is the palpable kindness that tends to radiate throughout all aspects of life—at the office, at home, or at stores as you’re completing your definitely not last-minute holiday shopping. It feels good to be kind, and it feels good to be treated kindly.
Being kind can make you a better and happier lawyer. In November, I had the opportunity to travel to Scottsbluff for the Bob Chaloupka Kick Ass Trial Skills Seminar. If you haven’t had the chance to make your way to this annual seminar, do it next year. It may be a long drive for easterners like me, but you will be greeted in Scottsbluff by fantastic trial attorneys from across the country presenting interesting and relevant topics to our practice. This year, Andy Delaney, past president of the Vermont Association of Justice, presented on the power of radical empathy in an adversarial setting. Despite his noted irony of an east coast lawyer presenting to predominantly Nebraska attorneys about the power of kindness, he delivered a message that attorneys young and old should take to heart.
Be Kind to Your Adversary. I’m grateful to be a part of a Nebraska bar that is generally kind and professional to fellow attorneys. While litigation is intentionally adversarial, members of our bar understand that kindness does not mean capitulation. You can still be a zealous advocate for your client while being a good person and treating your adversary as you would want to be treated. Still, we’ve all been there—you get a frustrating email from opposing counsel or an adjuster and want to fire back the snarkiest response that will surely cause the recipient to recalibrate their position. Kindness in these situations requires intentionality.
Unfortunately, there will be times when you are not treated with kindness or respect. In those moments, I find it even more important to be kind and gracious. You cannot control how your adversary chooses to practice law or handle your client’s claim. As Andy Delaney reminded attendees at the Kick Ass Trial Skills Seminar, be understanding, be gracious, and be accommodating to the extent it doesn’t harm your client. By all means, feel your feelings—if you’re upset at your adversary, feel upset. However, take a beat to breath, talk to a trusted colleague or mentor, and accept the situation before responding. As a young attorney, your reputation is in its infancy, and all it takes is one lapse in judgment (or one rude and snarky email) to ruin your reputation.
Be Kind to Your Colleagues and Staff. I’ve quickly learned that practicing law is more enjoyable when you are around people you like. Our work is demanding—requiring untold hours of research,
drafting, client contact, depositions, or demand drafting. Occasionally, the office can be a stressful environment. You have the agency to facilitate an environment at work that is full of gratitude, kindness, and fun.
Small acts of kindness or gratitude can go a long way. A simple “thank you” or “great work” on a job well done by a paralegal may brighten their day and confirm your appreciation for what they bring to the table. Bring coffee into the office. Take your staff to lunch. Get to know your staff—their interests, sense of humor, favorite TV shows, etc. Have a yearly retreat. This is by no means an exhaustive list; but the takeaway should be that a happy staff is a happy office.
Be Kind to Yourself. It is easy for the practice of law to become all consuming. I’ve previously written about taking time off to decompress, but there may be daily habits you can adopt to increase your happiness.
• Exercise. Take time away from the office to exercise, whether it be running, lifting weights, swimming, yoga, pickleball, or any other physical activity. Beyond the physical benefits, exercise can help you stay focused and relieve stress.
• Sleep and Meditation. I hear that sleeping is important. I will admit that I am horrible at sticking to a sleep routine. One of my resolutions for the new year is to develop some sort of routine so that my mind and body are rested. In a similar vein, some attorneys find benefit from morning meditation.
• Take a Vacation. The recent holiday season provided a great opportunity to step away from the office and spend time with family. I am lucky to have family in Southern California, so I spent a week out of the office and near the beach in mid-December. I tried my best to unplug—shutting the laptop and turning off the phone. I succeeded on some days, failed on others, but I made a conscious effort to relax and take my mind off the cases waiting for me when I returned home. I came back to the office rested and reinvigorated.
• Focus on
Relationships
Outside
of the Office.
I hope all readers have close relationships with friends and family outside of the office. These relationships require time and effort just like the practice of law. If you remain stuck in your office, your relationships will deteriorate. Throughout your career, you will have success and failures, and every case will eventually come to an end. However, your relationships outside the office will continue. Be kind to yourself and nurture those relationships. As a young attorney, there is a misconception that we must grind at all hours of the day to be a successful attorney. While you should be committing yourself to hard work, you should also keep in mind what you work hard for.
Being kind in all facets of your work life allows you to focus on your clients’ cases and the issues that matter instead of getting bogged down in personal grievances or disputes with opposing counsel. We lower our stress when we’re kind. We are happier at the office and at home. We reduce burnout associated with adversarial proceedings. Most importantly, being kind is just the right thing to do. Cheers to the new year and being kind in 2025.
NATA SUMMER BOARD MEETING
July 9-12, 2025
Chicago Athletic Club
Members and families welcome.
The Chicago Athletic Club is centrally located steps from Michigan Avenue, Millennium Park, the Chicago Riverwalk, Navy Pier, Chicago Art Institute, Skydeck Chicago and more!
WASHINGTON UPDATE
JANUARY 2025
By Linda Lipsen, CEO American Association for Justice
In response to the horrific fires burning vast swaths of southern California, AAJ’s Trial Lawyers Care® program is coordinating with and supporting the efforts of our friends and family at the Consumer Attorneys of California (CAOC) and Consumer Attorney Association of Los Angeles (CAALA).
We’re also in communication with the Los Angeles Trial Lawyers’ Charities (LATLC) for updates on what is needed the most. Working with LATLC, our Trial Lawyers Care Committee cochairs created an Amazon wish list . Please use it to shop and send supplies to help first responders and displaced residents.
For links related to providing pro bono legal help and making financial contributions for essential supplies for firefighters and fire survivors, please visit our Trial Lawyers Care page.
NEW YEAR, NEW BATTLES AHEAD
The start of a new Congress feels like the first day of school. It will be important for us to build relationships with new members from both sides of the aisle, especially since we will be playing defense for the next two years.
This month, Congress is largely focused on hearings related to new cabinet posts. And while our principal issue and mission—preserving the right to trial by jury—is not targeted in Project 2025, we have many areas of concern, chief among them, elimination of trial lawyers’ cases via preemption.
Last Congress, the pesticide industry lobbied for immunity for all harm related to any pesticide, which was inserted into two appropriations bills. AAJ worked tirelessly to help defeat such efforts.
These attempts to limit accountability for corporate wrongdoing are happening on the federal and state levels. Last year, Bayer supported legislation in three states that would give complete immunity to pesticide corporations when their products sicken or kill citizens or cause destruction of crops. Bayer’s efforts failed. However, it has indicated interest in expanding the immunity campaign to many more states in 2025. We know that Bayer will also try again to include immunity provisions in federal legislation regulations.
The U.S. Chamber also laid out its priorities for the new year in state legislatures, Congress, and before the Advisory Committee, and chief among them is the mandatory disclosure of litigation financing agreements to corporate defendants. This is a one-sided mandate whose only purpose is to provide powerful corporate defendants with a strategic advantage in litigation to the severe detriment of workers, patients, consumers, victims, and survivors.
The U.S. Chamber, which is only one of our opponents, spent $142 million on lobbying in the 118th Congress (compared to AAJ’s $10 million). We anticipate they will continue this level of spending in the new Congress.
We are also ready for the trucking industry’s indicated priorities—caps on noneconomic damages; establishing a bifurcated trial process in truck crash litigation; limiting scrutiny of a company’s dangerous hiring, supervision, and training practices by attributing responsibility solely to the driver; the admissibility of seatbelt use; and eliminating design defect cases against truck and trailer manufacturers.
We are tracking and actively working to counter Uber’s legislative efforts to rewrite the rules on agency and vicarious liability, eliminate UIM coverage, and undermine emerging product liability claims. Uber has invested millions in a campaign to cap attorney fees at 20% in Nevada—a precedent it will seek to replicate nationwide if successful.
AAJ is working on a comprehensive strategy to fight all these battles wherever and whenever they arise. While the temptation, especially after a grueling election cycle, is to tune out or tap out in exhaustion—AAJ cannot and will not. The rights of Americans to seek justice and accountability are at stake and AAJ will not back down.
CONTACT
AAJ Advocacy
Email: advocacy@justice.org
we are stronger together
JOIN US IN THE FIGHT FOR JUSTICE
The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA®), is an organization committed to promoting accountability and safety, advocating for a balanced civil justice system, improving our communities, and educating lawyers to provide excellent advocacy for their clients.
As a member of AAJ, you will play a meaningful role in the fight to protect the Seventh Amendment while accessing the tools you need to most effectively represent your clients against even the most powerful corporations and industries.
AAJ is the only national plaintiff lawyer association working as an advocate for trial lawyers on a broad range of issues, using lobbying, litigation, and public education to promote a fair and effective civil justice system.
JOIN THE AMERICAN ASSOCIATION FOR JUSTICE
Join us online at justice.org/Join or by contacting us at 1-800-424-2727.
Membership in the Circle of Advocates at an annual dues of $2,000 and Sustaining Membership at an annual dues of $1250 provide needed financial support for NATA’s work in service to its members, their clients, and the public.
