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SPRING 2017 CONTENTS
Cover Story
LAW
PG. 42
13 // CASE IN BRIEF 16 // AVOIDING THE CRASH & BURN 20 // SOCIAL MEDIA EVIDENCE 22 // SOCIAL MEDIA: LAW & BUSINESS 24 // HIPAA COMPLIANCE FOR PI LAWYERS 26 // EXPERT REPORT 31 // MEET THE INCUMBENT 38 // GAMBLING DIVERSION PROGRAM 42 // VOTED MOST LIKELY TO SUCCEED
Supreme Beauty
BUSINESS
PG. 62
49 // STATE OF THE MARKET 53 // DEATH OF THE DEATH TAX 56 // AFFORDABLE LUXURY 58 // RAIDER NATION LOCATION 60 // VALUE OF OWNERSHIP 62 // SUPREME BEAUTY 64 // MONEY MATTERS
LIFESTYLE
66 // LAS VEGAS ICONS: RICH MACDONALD 70 // SPRING FASHIONS 77 // HIDDEN BEAUTY OF LIVE PERFORMANCE 79 // ANDIAMO STEAKHOUSE 80 // TIPS FOR SUCCESSFUL SURGICAL OUTCOME 84 // ADVICE FROM THE SURGEON 86 // STIGMA OF ADDICTION 90 // HUMOR
Andiamo Steakhouse PG. 79
Vegas Legal Magazine Spring 2017 | Pg. 3
EDITOR IN CHIEF PRESTON P. REZAEE, ESQ.
ADVERTISING INFO@VEGASLEGALMAGAZINE.COM CALL 702-222-3476
PUBLISHER TYLER MORGAN, ESQ.
CONTRIBUTORS
DIRECTOR OF OPERATIONS JEFFRY COLLINS CREATIVE DIRECTOR TIMOTHY HANCOCK MANAGING EDITOR JEN CHASE V.P. OF MARKETING CHARLOTTE EVANS
KENNETH M. BAHOORA, D.C. ANDREW CASH, M.D. ELENA CASTRIOTA DOUGLAS CRAWFORD, ESQ. J. MALCOLM DEVOY, ESQ. MARK FIERRO JULIO L. GARCIA, M.D., FACS NEDDA GHANDI, ESQ. KYLE LUM MARK MARTIAK MYRON MARTIN VALERIE MILLER RICK NELSON MALVIKA RAWAL, PH.D., JD SABRINA SIRACUSA STAN SMITH, PH.D MARK STUDIN, D.C. PATRICK SUNDBY DONOVAN THIESSEN, CPA GLENN H. TRUITT, ESQ.
CONFIDENCE.
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You have goals. Ours is helping you achieve them. To learn more, contact: Kyle Lum Financial Services Professional MassMutual Nevada 1140 N. Town Center Drive, Suite 350 Las Vegas, NV 89144 702-856-2341 kylelum@financialguide.com www.financialguide.com/Kyle-Lum LIFE INSURANCE + RETIREMENT/401(K) PLAN SERVICES + DISABILITY INCOME INSURANCE + LONG-TERM CARE INSURANCE + ANNUITIES
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LETTER FROM
THE EDITOR
Is
justice unquestionably blind? Are judges truly neutral arbiters of facts capable of indifferent judgment? Certainly, our judiciary is composed of elected officials possessing the education, experience, and judicial temperament to carry out the great responsibility with which they have been entrusted. While it is undoubtedly true that judges are more than capable of rendering judicial decisions based on an exhaustive understanding of the law and legal nuances, it would be a mistake to assume that they are immune to personal perspective. After all, judges are people too, and thus inherently fallible. Meet the Incumbent is a recurring segment wherein we interview a presiding judge in hopes of providing you with a lighthearted, yet insightful view from the bench. In response, we have received tremendous support from the judiciary and astounding feedback from legal professionals. We look forward to continued support. Preston P. Rezaee
Vegas Legal Magazine Spring 2017 | Pg. 5
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LETTER FROM
THE PUBLISHER
I’m very excited for our future as a publication and our expansion into multimedia platforms. In our efforts to keep providing our read-
ers with the full experience, efforts and convenience of our magazine, we began producing our podcast, Vegas Legal Magazine Podcast. It’s been a lot of fun and an eye opening experience. In a short amount of time we have covered a variety of stirring topics and had the opportunity to speak with several engaging guests. It has been great to get attorneys, community leaders and other business professionals on the show to give us their personal views and opinions on these exciting, impactful and thought provoking topics. Most importantly, we have been able to introduce you, the readers, to the real faces and personalities around our community. When I began this publication my goal was to connect attorneys with the rest of the business community through publication of topics covering law, business and lifestyle. It’s been two years and our editorial quality continually upgrades. Now, it’s time we expand into other areas of media and our podcast is setting the path. Our goal with the Vegas Legal Magazine Podcast is not only to discuss issues and news, but to provide the platform for conversations that will help to enrich and engage our listeners and readers. By having open dialogue about significant topics we have been able to educate ourselves and our listeners about issues that impact our businesses and personal lives. For example; we learned that a significant amount of legal work is unfortunately being sent out of state, a class action lawsuit against Facebook is being handled by a local attorney, we have a very generous and philanthropic legal community in Nevada and that gambling and drug addiction is greatly affecting the legal community but there is help. I want our readers and listeners to get to learn about law and everything related on a more personal level. You the readers have given us tremendous support and I am forever indebted to you with the responsibility of keeping you both informed and entertained. It’s an open format. Its raw. It’s all for you. I invite you to listen and contact us with topics you want us to cover and interesting, influential guests you want to hear from. We invite you to download episodes of the podcast at www.vegaslegalmagazine.com!
Vegas Legal Magazine Spring 2017 | Pg. 7
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King Of The Mountain
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Case In Brief The Incredible Shrinking Litigation Privilege Parties and Attorneys Still Have Protection for Statements Made Within Litigation— But Increasingly Few Places Elsewhere. – By J. Malcolm DeVoy, Esq.
Nevada’s absolute privilege for statements made by litigants and their
attorneys in the course of a dispute has been winnowed down in recent years. For many high-stakes cases, an attorney’s job extends beyond the courtroom, and reaches into the media. Skilled litigators are called upon to not only deal with the court and opposing counsel, but the media as well. Historically, these statements were protected by Nevada’s absolute privilege for communication made during or in connection with litigation. Today, after a trio of decisions—the latest of which was decided by the Nevada Supreme Court in February of 2017—whether an attorney’s statements to the press would be privileged is far less certain. The Litigation Privilege’s Recent History and Constriction by the Nevada Supreme Court. In Shapiro v. Welt,1 the Nevada Supreme Court revisited the issue of the litigation privilege, which it addressed during 2014, and at length, in Jacobs v. Adelson2 and Greenberg Traurig LLP v. Frias Holding Company.3 In Jacobs, the Supreme Court maintained that communications made by an attorney or party in the “litigation setting,” and which are “in some way pertinent to the subject of the controversy” are still absolutely privileged.
The Court, however, found that that statements made to someone who is not directly involved with the litigation is protected by the absolute privilege only if the recipient is “significantly interested” in the proceeding. Ultimately, the Supreme Court concluded that statements made to the Wall Street Journal regarding its coverage of ongoing litigation were not protected by the litigation privilege, and an action for defamation could proceed based upon that communication. Later in 2014, the Supreme Court recognized yet another limitation to the litigation privilege. Faced with the question of whether an action for legal malpractice based on an attorney’s statements during a dispute was barred by the litigation privilege, the Supreme Court recognized a legal malpractice exception to the litigation privilege.4 This was an issue of first impression for the Supreme Court, which ultimately decided that extending the litigation privilege to claims of legal malpractice made for “unsound policy.”5 Whatever the rationale, the decision’s result further winnowed of the protections afforded by the litigation privilege. The Shapiro Decision Adds New Uncertainty to the Litigation Privilege’s Application.
Vegas Legal Magazine Spring 2017 | Pg. 13
CASE IN BRIEF
The Shapiro decision, like Jacobs, left the litigation privilege unchanged: All that is required for statements to be protected is that they are contemplated in good faith6 and related to the litigation. Shapiro, like Jacobs before it, focused on the second prong of this test, specifically when—and whether— statements can qualify as “related to” the litigation. Rather than draw a bright line test, or give guidance at all, the Shapiro decision cautioned that the decision about the privilege’s application is fact-specific and must be made on a case-by-case basis.7 Although the litigation privilege’s shield against liability for parties and attorneys for statements made during litigation remains intact, its scope of applicability has shrunk. The Shapiro decision echoes Jacobs, noting that statements regarding litigation must be made to someone significantly interested in the dispute to enjoy the litigation privilege; following Jacobs, this relationship presumably requires ties closer than an interested member of the media. The Nevada Supreme Court declined to offer further guidance as to what will qualify as having a “significant interest” in the litigation’s outcome, which potentially is to the detriment of both attorneys and their clients alike. The Shapiro decision’s guiding dicta, cautioning that the application of the privilege is a case-by-case matter, potentially chills the speech of attorneys and makes them targets for nuisance lawsuits intended to stymie their progress in other litigation. While Nevada’s litigation privilege never provided talismanic immunity against parties and their lawyers being sued for their statements, recent decisions cast a shadow over attorneys’ ability to zealously represent their clients’ interests, particularly when they extend beyond the courtroom. Attorneys have never been fully immune from the consequences for their statements: The State Bar of Nevada can always discipline them for intemperate remarks, and no one is free from the social consequences of their statements or conduct. Lowering the bar to bringing lawsuits against attorneys and their clients for statements made to third parties during litigation, however, invites making them targets of collateral actions to obstruct, obfuscate, and obtain an advantage in the initial proceeding. As unlikely as this outcome is for less glamorous cases, the Shapiro decision’s affirmation of the litigation privilege’s fact-specific application adds a new dimension of intrigue and strategy to cases where millions are at stake— and inevitably covered by media—rendering negligible the incremental cost of an additional lawsuit to test the litigation privilege’s application. J. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, the Stark Law, and the Anti-Kickback Statute. References 1 133 Nev. Adv. Op. 6 (2017). 2 130 Nev. Adv. Op. 44, 325 P.3d 1282 (2014). 3 130 Nev. Adv. Op. 67, 331 P.3d 901 (2014). 4 130 Nev. Adv. Op. 67, 331 P.3d at 904. 5 Id. 6 Or, for matters not in pending litigation, made under serious consideration. Shapiro, 133 Nev. Adv. Op. 6 at 10. 7 Id.
Vegas Legal Magazine Spring 2017 | Pg. 14
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AVOIDING THE CRASH & BURN A Q&A To Keep You (And Your Clients) Protected – By Patrick Sundby, Accident Investigator; Mark Studin DC, FASBE(C), DAAPM, DAAMLP; and Kenneth M. Bahoora, DC
In this month’s medico-legal feature, VLM brings you the voices of three professionals in their fields who are experienced in spinal biomechanics, and low-speed and catastrophic crashes. Below, they share answers and insights about some common questions they’re asked, including the topics of bodily injuries, crash dynamics and accident reconstruction. 1. “How do airbags work and why do they deploy in some cases and not others?” Almost all airbag-equipped vehicles contain an airbag control module. The module monitors various vehicle systems and has a predetermined threshold for deployment. (In simpler terms, this means the collision has to meet certain settings to deploy an airbag.) While each car brand’s system is different from the next, the concept is the same: The module constantly monitors a vehicle’s speed, and when a collision occurs, the module can tell the change in speed is happening faster than if the car was slowing by brakes alone. IF the collision, as calculated by the module, is extreme enough, it will deploy the appropriate airbag(s). (Note: The module having the final say in why an airbag is deployed is truly vehicle-specific, as well as module software and hardware dependent.) The module can know changes in the vehicle’s direction and speed via onboard accelerometers. The module constantly calculates these changes and when it “sees” a change beyond preset thresholds, it begins to monitor the changes very closely (this is called “algorithm enablement”). If the module determines the changes meet the criteria for airbag deployment, it will deploy the appropriate airbag(s). Many vehicles also have failsafe sensors mounted in the vehicle that are designed as a secondary mechanical and/or electrical triggering system. These sensors are mounted on the front of the vehicle, usually under the radiator. When crushed or damaged, they force an airbag
Vegas Legal Magazine Spring 2017 | Pg. 16
deployment. Occasionally, someone will ask how a vehicle knows that a seat is occupied. (The driver’s seat is obvious, but beyond this, the front passenger seat has a pressure sensor that can tell when a predetermined amount of weight is on it, and in most vehicles, the rest of the seats use the seatbelt latch.) When you are driving, the module also monitors the status of seatbelts and the pressure sensors, and uses that data to make the best decision possible about which airbags to deploy and when. 2. “I got this collision expert’s report but there doesn’t appear to be any explanation for his findings. Is this normal?” We are often asked about a specialist’s report, but the most common subset questions are about the lack of support for findings in the report. So we have chosen to address this question because it’s of personal and professional interest to us. The answer to the above is both yes and no: Yes, it happens; and no, it’s not acceptable standard. One of the reasons I (Patrick Sundby) have chosen to work with Dr. Bahoora and Dr. Studin is because of their tenacious commitment to research. If you have seen these doctors present, you know they have scholarly research to back up their points. Working with doctors that have been through accredited and standardized training based on a lot of scholarly research is imperative. All professional fields of post-primary education are based in accredited and scholarly formal standards. Collision reconstruction specialists are no different. While not necessarily part of an undergraduate or graduate program, the training and education they have is based on the same accredited and scholarly formal training and education. And because of this correlation, the same standard should be applied to collision reconstruction
specialists. Scholarly research is based on objective methods of testing and investigation, peer review, and rigorous scrutiny before being accepted. When an expert offers an opinion without citing supporting scholarly documentation, it’s not worthless, but rather it stands alone as opinion. Conversely, when an expert offers an opinion with appropriate supporting scholarly documentation, an opinion is accompanied by work, expertise, and research. 3. “Is the listed cost on the appraisal an accurate reflection of damage?” An appraisal for repairs is often used to justify “low speed” in a lowspeed crash by citing minimal costs; but there are a few points regarding them to consider. Regarding the above, the short and easy answer is “no,” and the long answer starts with understanding who did the appraisal, and the background of the appraiser. Usually, appraisers are trained by the insurance company for whom they work. As such, minimizing the costs and expenses of repair is in the insurance company’s interest. Second, most appraisers do not disassemble a vehicle to determine if there is any hidden damage, particularly in low-speed collisions. The next problem is that when replacement parts are needed, where should they come from? Original equipment manufacturer (OEM) parts cost substantially more than equal- or like-quality (ELQ) parts, which makes ELQ parts the preferred choice of insurance companies. Along this same line, the quality of paint also varies. Paint manufacturers offer paint systems to meet OEM specifications and are very durable paints; however, they also offer more economically friendly paint that is not as durable or as closely color matched to the original. And as expected, it costs less. The last problem to discuss is job downtime. The longer a vehicle is in for repairs, the more it costs the insurance company in rental fees. While a shop can, and will, have a minimum amount of time to fix the vehicle, the insurance company is going to keep it on a timeframe and constantly press for the vehicle to be completed. Sometimes that can create an environment where the repair facility will sacrifice quality of workmanship to complete the job faster for a better profit margin. The above variables greatly dictate the final number, making it too subjective for a reliable point to support the threshold of injury. In other words, the use of “low cost” as a justification for no injury is not appropriate, as no causality relationship exists. If a breakdown of the repair bill is provided, you could objectively price the repair parts and effectively show the bias toward reducing the cost of the repair. 4. It is a common finding that whiplash patients suffer injury to their discs. Determining whether the pathologic disc is causally related to the whiplash becomes a concern in the medico-legal arena…which means that a common question we receive is, “How can you tell if the pathological disc found on MR imaging is directly related to the whiplash?” Initially, the first step in determining the relationship between causal-
CRASH & BURN ity and bodily injury is to be certain that patients have a complete history taken, and that an examination is performed by a qualified health care provider that is trained in trauma care. Many practitioners are licensed to treat the trauma case, but many are ill equipped in training and experience and don’t have the credentials to ensure an accurate diagnosis as to determine proper relationship to causality. Beyond radiating symptomatology—as Del Grande, Maus and Carrino (2012) have reported as an accepted parameter for determining herniation causality—it is important to realize that radiating clinical symptoms arising out of injury to an intervertebral disc are dependent on the anatomical positioning of the injured and inflamed disc material. It is only when the disc herniation is of a lateralized nature that the segmental nerve root is compressed or inflamed, producing radiation of axial symptoms to the corresponding upper or lower extremity. To discuss radiation as a primary indicator of acute traumatic injury to the intervertebral disc omits central disc herniations, which alone do not typically produce extremity symptomology. When it comes to acute injury in the absence of radiating symptoms, local symptomatology should also be considered in approaching a mechanism and timing of the injury. Furthermore, one must also look at the morphology or architecture of the individual vertebrae as demonstrative evidence to age-date disc pathology inclusive of both herniations and traumatically induced directional, non-diffuse bulges as described by Fardon et al (2014). Wolf ’s Law, as described by Isaacson and Bloebaum (2010), is that “physical forces exerted on a bone alter bone architecture and is a well-established principle…” (p. 1271). This has been understood and accepted as a general principle since the late 1800s, and has been verified through the past century’s research inclusive of contemporary research. Simply put, if a bone has abnormal stresses, it will change morphology or shape within expected parameters. Since these changes are “expected,” the question becomes, “how does Wolf ’s Law apply to traumatic external forces and acute disc injury, and how does this relate to causality?” In order to fully understand the process, it is critical to understand the biochemical reaction (or functional adaptation) that occurs with abnormal stresses on bone…that centers on bioelectric changes that occur at the cellular level. According to Issacson and Bloebaum (2010), when tissue is damaged, the injury potential creates steady local electric fields that result from ion flux—positive and negative charges moving through local cellar membranes—which is an integral part in the regeneration/remodeling of bony tissue. Bone remodeling is a tightly coupled functional system and is strongly influenced by age, activity level and mechanical loading. This functional adaptation of bone demonstrates the unique ability of bone to alter its trabecular (structural bone tissue) orientation as a result of loading conditions. According to Frost (1994), bone remodeling is a direct response to mechanical influences and
Vegas Legal Magazine Spring 2017 | Pg. 17
CRASH & BURN strains on the osseous system. This can occur as a normal process to strengthen bone, or as a response to altered anatomy, biomechanics or direct traumatic injury. Since this is a predicable scenario, we can identify specific factors that will help us to determine whether the response was present over time or is at the beginning phase of remodeling. That is the fundamental basis for putting a causally related date to the injury. 5. Individuals suffer significant injury in crashes where there is low car damage. In such cases, it is common for MR imaging to detect significant disc pathology following these low-damage crash scenarios. A question for us then becomes: “How do low-damage crashes cause disc injury?” Gathering a proper medical and crash-mechanism history is the initial step. In addition, forming a risk and causation analysis is essential in determining causality relative to bodily injury. This will also assist in determining the threshold some individuals hold for being injured with less trauma. Additionally, human risk factors for injury—which are quite extrinsic to the crash metrics—can often be more important predictors of occupant injury than the crash metrics themselves. It is not uncommon for one person in a crash to be injured and another person in the same vehicle to walk away unscathed. Clearly, both were exposed to the same crash metrics in terms of the vehicle’s speed change, impact, etc. But those factors by themselves are not sufficient to predict occupant risk. What we question in order to reasonably assess risk in a crash is position in the vehicle, the use of restraints, the role of awareness, age, sex, physical strength, size, health, prior injuries, and other factors. Analyzing risk in all cases is imperative, as it can confirm why significant injury can occur with fewer traumas. With respect to causation and its relationship to disc injury with minor damage car crashes, a crash-related injury causation analysis for a specific individual should also be performed by assessing the risk of injury from the collision and comparing it to the probability that the injuries or conditions would have been present at the same point in time if the collision had not occurred. This is called a relative or comparative risk analysis—also known as a “differential etiology” approach to causation—in which the most probable cause is selected among all competing causes. The analysis is accomplished via the application of crash reconstruction, biomechanical, medical, and epidemiologic (risk assessment) principles. The methodology for assessing causation of disc injury following low damage traffic crashes used here has been described in peer-reviewed literature, and has been deemed generally accepted by U.S. courts. The three fundamental elements of an injury causation analysis are as follows: 1. Whether the injury mechanism had the potential to cause the injury in question; 2. The degree of temporal proximity between the injury mechanism and the onset of the symptoms reasonably indicating the
Vegas Legal Magazine Spring 2017 | Pg. 18
presence of the injury; and 3. Whether there is a more likely alternative explanation for the occurrence of the symptoms at the same point in time. Michael D. Freeman, Ph.D., MPH DC, a forensic epidemiologist, has documented that spinal disk injuries have been described in peer-reviewed literature as occurring at load levels similar to 3-4 mph rear impact collisions. (15,16) He goes on to state that studies of real-world (epidemiologic) crashes compared with medical findings indicate that at a 5-7 mph delta V (change in velocity); 35-47 percent of occupants will receive some degree of injury; 3.5-6.4 percent will develop long lasting (as in greater than 6 months) symptoms; and 2.5 -3.7 percent—or between 1 in 27 or 1 in 40— will demonstrate symptoms of a cervical spine disk derangement. (14) An assumption is that insurance carriers simply don’t understand the concept of risk and causation, and will assume that an individual involved in a low-damage crash scenario simply can’t endure a spinal disc injury. The above-mentioned concepts confirm that this couldn’t be further from the truth. We answer questions like the above every day and are available for your questions at any time. Our contact information can be accessed below. Dr. Kenneth Bahoora has been a treating physician in Nevada for 18 years. He graduated from Life University in Atlanta, Geo., where he received his diploma as a doctor of chiropractic. He has received specialized knowledge with post graduate education in accident reconstruction, spinal biomechanical engineering, spinal MRI interpretation, MRI physics, providing impairment ratings utilizing AMA Guides 5th & 6th Edition, examining, and triaging the trauma patient, and neurodiagnostic interpretation protocols. He lectures to doctors and the legal community on subjects including but not limited to trauma and injury protocols and crash dynamics and the trauma victim. He can be reached for further explanation at kmbdc@elitechiro.net or 702.204.4240. Patrick Sundby has decades of experience in the automotive industry including several years in law enforcement collision investigation. He has also been a driver training and firearms instructor in law enforcement, and a police officer for 9 years before specializing in accident investigations. He has had the privilege of participating in both learning and teaching at Prince William County Criminal Justice Training Academy in Virginia and studied at the Federal Law Enforcement Training Center in Georgia. His specialty is low-speed and catastrophic crashes and has testified over 500 times at various levels. He can be reached at 571.265.8076 or patrick.sundby@gmail.com Dr. Mark Studin teaches at the doctoral level as an adjunct assistant professor of Chiropractic at the University of Bridgeport, College of Chiropractic, and an adjunct assistant professor of Clinical Sciences at Texas Chiropractic College. He also teaches at the graduate medical level as a clinical presenter credentialed by the Accreditation Council for Continuing Medical Education in Joint Sponsorship with the State University of New York at Buffalo, School of Medicine and Biomedical Sciences, along with being credentialed nationally for chiropractic post-doctoral education in a broad range of clinical subjects. References: 1. Fardon, D. F., & Milette, P. C. (2001). Nomenclature and classification of lumbar disc pathology: Recommendations of the combined task forces
of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 26(5), E93–E113. 2. Fardon, D. F., Williams, A. L., Dohring, E. J., Murtagh, F. R., Rothman, S. L. G., & Sze, G. K. (2014). Lumbar Disc Nomenclature: Version 2.0: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 14(11), 2525-2545. 3. Brault J. R., Wheeler J. B., Siegmund, G. P., & Brault, E. J. (1998). Clinical response of human subjects to rear-end automobile collisions. Archives of Physical Medicine and Rehabilitation, 79(1), 72-80. 4. Krafft, M., Kullgren, A., Malm, S., and Ydenius, A. (2002). Influence of crash severity on various whiplash injury symptoms: A study based on real life rear end crashes with recorded crash pulses. In Proc. 19th Int. Techn. Conf. on ESV, Paper No. 05-0363, 1-7 5. Del Grande F., Maus T. P., & Carrino J. A. (2012). Imaging the intervertebral disc: Age-related changes, herniations and radicular pain. Radiological Clinic of North America 50(4), 629-649 6. Issacson, B. M., & Bloebaum, R. D. (2010). Bone electricity: What have we learned in the past 160 years? Journal of Biomedical Research, 95A(4), 1270-1279. 7. Frost, H. M. (1994). Wolff ’s Law and bone’s structural adaptations to mechanical usage: an overview for clinicians. The Angle Orthodontist, 64(3), 175-188. 8. He, G., & Xinghua, Z. (2006). The numerical simulation of osteophyte formation on the edge of the vertebral body using quantitative bone remodeling theory. Joint Bone Spine 73(1), 95-101. 9. Koehler S, Freeman MD. Forensic epidemiology; a methodology for investigating and quantifying specific causation. Forens Sci Med Path 2014 Jun;10(2):217-22 10. Freeman MD. Medicolegal causation analysis of a lumbar spine fracture following a low speed rear impact traffic crash. J Case Rep Prac 2015; 3(2): 23-29. 11. Freeman MD, Kohles SS. An Evaluation of Applied Biomechanics as an adjunct to systematic specific causation in forensic medicine. Wien Med Wochenschr 2011;161:1-11 12. Freeman MD, Centeno CJ, Kohles SS. A systematic approach to clinical determinations of causation in symptomatic spinal disc injury following motor vehicle crash trauma. PM R 2009;1(10):951-6. 13. 35 F.Supp.3d 1360 United States District Court, D. Colorado. Donald L. Etherton, Plaintiff, v. Owners Insurance Company, a Michigan Insurance Company, Defendant. Civil Action No. 10–cv–00892– PAB–KLM 14. Brinckmann P, Porter RW. A Laboratory Model of Lumbar Disc Protrusion. Spine 1994;19(2):228-35. . 15. Freeman MD, Croft AC, Nicodemus CN, Centeno CJ, Welkins WL. Significant spinal injury resulting from low-level accelerations: A case series of roller coaster injuries. Arch Phys Med Rehab November 2005;86:2126-30. 16. Oppenheim JS, Spitzer DE, Segal DH. Nonvascular complications following spinal manipulation. Spine J. 2005;5(6):660-6. 17. Reliability is a metric based on epidemiologic study, from which the true and false positive rate of a test is derived. 18. Manchikanti L, et al. An update of the systematic appraisal of the accuracy and utility of lumbar discography in chronic low back pain. Pain Physician. 2013 Apr;16(2 Suppl):SE55-95. Review. 19. Carroll LJ et al. Course and prognostic factors for neck pain in whiplash-associated disorders (WAD): results of the Bone and Joint Decade 20002010 Task Force on Neck Pain and Its Associated Disorders. Spine. 2008;33(4 Suppl):S83-92. 20. Freeman MD, Centeno CJ. A fatal case of secondary gain; a cautionary tale. Amer J Case Reports 2008;9:97-103
LAW +
#SOCIALMEDIA
Social Media Evidence
The Family Lawyer’s Double-Edged Sword –By Nedda Ghandi, Esq.
A party’s online activities can be the divorce attorney’s best asset
or worst nightmare. Going through a divorce or custody battle has always been emotionally difficult, but the parties have not always had social media available to broadcast their frustrations to the world. People tend to be more impulsive during times of personal crisis, and for better or worse, this lack of discretion may now include posting emotionally charged updates via social media. And evidence obtained from social media evidence can have a substantial impact on a divorce or custody case. According to USA Today, 78 percent of the U.S. population uses some form of social media. Whether it is Facebook, Twitter, Instagram, Snapchat, YouTube, or Tumblr, social media can create a virtual trail of all who use it, from where they go and who they spend time with, to their upcoming adventures and new possessions. While a user may see social media as a source of comfort during a stressful time or as a way to fulfill his or her need for socialization, communication, empathy, or love, a divorce attorney views social media as a potential trap sprung by the user’s own hand—an easy way for a client to unwittingly hand compromising information to the opposing side. On the other hand, a divorce attorney also sees social media as a possible bounty of ways to expose the lies of the opposing party through their discoverable online activity.
Vegas Legal Magazine Spring 2017 | Pg.20
In a 2010 survey by the American Academy of Matrimonial Lawyers, 81 percent of divorce attorneys reported seeing an increase in the use of social media evidence in divorce litigation. The use of social media and the number of available platforms have only increased over the last several years, and the family lawyer must be increasingly vigilant as to the many pitfalls and treasure troves that await. Unfortunately, many users of social media operate under the incorrect assumption that what they post is “private.” It must be remembered that anything posted “privately” can be re-posted or sent to anyone else in the world, by any of the designated “friends” who received the “private” message in the first instance. Often, divorce and custody clients are surprised to learn that their social media pages, including their “private” communications, as well as anything that had previously been deleted, can be accessed and used against them in court. In practice, social media evidence is typically more harmful than helpful to the posting client in divorce and custody cases, and clients should generally be quickly advised to stop posting on any social media platforms, if not deactivate their accounts for the duration of the litigation. Courts have generally held that social media evidence falls under the duty to preserve, which requires parties to cease any
#SOCIALMEDIA
alteration or destruction of evidence that is found relevant to pending litigation. Information posted to social media websites is not privileged information, making it potentially discoverable in a court of law. Moreover, there exists no reasonable expectation of privacy for anything posted to the Internet, despite the user’s privacy settings. In Rosario v. Clark County School District, 2013 WL 3679375 (D. Nev. July 3, 2013), the court held that users who have their privacy settings set to “public” have the intent to allow anyone on the Internet to view their posts, and therefore can have no expectation of privacy. Moreover, users who have their profiles set to “private” may share their posts with a smaller audience, but users have no control over what their friends re-post or share or discuss amongst themselves, therefore cannot expect to keep their information truly private. Thus, there is no expectation of privacy and no Fourth Amendment protection. Facebook, the current leader among the social media outlets, is often the vector providing incriminating evidence produced during discovery. Many users are unaware that every piece of information ever shared on their profiles, even posts and pictures that are deleted, is archived and may be discoverable by the opposing side. Thus, when a party’s Facebook profile information is obtained during discovery, the entirety of the user’s history is downloaded. For example, a party’s status update viciously castigating the ex that was posted in the heat of the moment and deleted only minutes after it was posted can resurface and inflict damage to the case. If that isn’t enough heat, Facebook administrators hold that even deactivated and deleted accounts can be recovered upon proper request from law enforcement or recognized legal process.1 Information a user may have believed would never be seen again can re-emerge and inflict irreparable harm to a case. Twitter and Instagram administrators have the similar abilities to produce vast amounts of information from a user’s profile, and deleted information is preserved for roughly 90 days. Think about that: Every status update, every picture, every message, anything that was ever posted to a Facebook profile either by the user, or a friend of the user, can be recovered and disclosed during litigation. In connection with that sobering thought, the current technology in smartphones, computers and tablets allows for a person’s location to be published with a status update or picture, showing where the person was when the update was posted. A common example involves a party that states he or she does not have income, but shows a lavish lifestyle on their social media channel–showing purchases of designer items, extravagant vacations, new cars and the like. One particular case dealt with a
business being valued and split, with the husband being in control of the business. The husband claimed he did not have income at all, in fact he was negative each month and having to take out loans and borrow from family to survive. However, social media painted a completely different picture, including his own admissions of being on dating websites, where he was claiming to be millionaire, having signed up for a millionaire dating website. If there is any information on the dating profile that is contrary to what has been presented in a case, a client like the husband could potentially be held liable for perjury. Overall, social media sites should be completely avoided during the divorce or custody process, because it often does and can come into the case to be used against the party participating in social media posts. What is the solution to this? The divorce attorney should immediately instruct the client to deactivate, but not delete, all of their social media accounts, even those that are not often used. Many attorneys are now adding social media clauses to their retainer agreements, requiring clients to sign an agreement stating they will not use social media in any way during the entirety of their case. At the very least, it must be emphasized to the client that it is important to not post about personal matters on social media, even if it seems harmless, and that nothing posted online is ever truly “private.” Just like the golden rule of “think before you speak,” it is important to think twice—maybe even three times before posting a status update—asking yourself, “If a judge were to see this post, how would it affect my client’s case?” A divorce judge’s perception of a case can of course be affected by evidence showing one party living a lavish lifestyle, going on five-star vacations to exotic locales and purchasing luxury vehicles, while the other party in the case is struggling to make ends meet. Even if a client cannot see the harm, they must be convinced, or even commanded, that it is in their best interest to refrain from using social media during the pendency of a divorce case. Nedda Ghandi, Esq. is the founding partner of Ghandi Deeter Blackham Law Offices. A Nevada native, Ghandi is a graduate of the University of Nevada, Las Vegas William S. Boyd School of Law and has practiced law in Las Vegas for 9 years. Ghandi has written numerous articles for publication concerning interesting developments in the law, and has been selected as a member of Nevada’s Legal Elite and as a Super Lawyer every year since 2013. Ghandi Deeter Blackham specializes in family law, bankruptcy, guardianship, and probate. Consultations may be scheduled by calling 702.878.1115 or visiting www.ghandilaw.com. 1 Facebook’s policy is to decline responding to civil subpoenas, although it will respond to requests authorized by the Facebook account holder. An attorney may seek to compel the account holder to provide such authorization to Facebook in discovery.
Vegas Legal Magazine Spring 2017 | Pg.21
Social Media’s Impact On
#SOCIALMEDIA
The Law & Business By Ethan Wall, Esq.
Social media is destroying the legal system. It is tearing at the fabric of
our laws. Manipulating our fundamental rights. And eroding our justice system. In five years it will cause the downfall of society, trigger the apocalypse, and set forth a series of catastrophic events that will destroy our planet. Okay, maybe that was a little dramatic. But hopefully it got your attention. What I mean to say is that social media has a profound effect on the law. And that it is critical for businesses, entrepreneurs, and executives to understand how social media affects the laws governing their industry and business activities in order to succeed in our social marketplace and avoid serious legal trouble. So let’s explore how social media affects the law and what you can do about it. Be Wary: Social Media Advances Faster than the Law Can Adapt When our forefathers gathered around to hammer our United States Constitution, guess what? MySpace didn’t exist. George Washington wasn’t a Facebook friend of James Madison. Thomas Jefferson didn’t live tweet the drafting of the Declaration of Independence. And John Hancock didn’t SnapChat a selfie with his quill. Of course, social media (and the internet for that matter) was never even contemplated (much less used) at the time our basic fundamental rights were formed. But that’s not all. Nearly all state and federal laws that govern our ability to conduct business, manage employees, and promote products and services on social media were created long before social media was commonplace. We therefore must apply “old” laws to new technology – and most of the time – it’s like trying to fit a square peg into a round hole. But just because it’s difficult to understand the laws regarding social media, doesn’t mean you can ignore them. It will only be a matter of time until your company, your employees, or someone working on your behalf posts something online that violates these laws and YOU are held responsible. So what can you do?
ing Act, and the Federal Financial Examinations Council. To learn more about the laws applying to your industry, check out your local law library’s copy of corpus juris secundum or call a social media attorney. Once you know the law, what’s the most important step to prevent social media from destroying your business? Be Proactive: Prevent Serious Lawsuits with Simple Risk Management Solutions There is no bigger waste of time and money then to pay a bunch of lawyers thousands upon thousands of dollars to argue about insignificant things. So put that money back in your bank account and spend more time focusing on building your business empire by setting up a simple risk management program that is designed to avoid lawsuits in the first place. Sounds simple, right? Here three easy, peasy steps to setting one up: Step One: Identify the laws and regulations that effect your company’s social media activities. These laws can be industry specific (like financial services) or activity specific (like online contests or sweepstakes). Step Two: Audit your current risk management activities to determine whether you are fully compliant with these laws and regulations. Conducting an internal audit will help you determine what additional risk management, if any, are needed to protect your company. Step Three: Implement a social media risk management program that includes social media related policies, internal compliance procedures, and employee training to ensure that you minimize serious legal risk that could destroy your business and drain your profits. Be Smart: Consult with a Social Media Attorney when Needed Experienced social media attorneys can assist your company in assessing applicable laws, conducting a risk assessment audit, and implementing your risk management program in a compliant manner.
Be Informed: Learn How the Law Applies to Your Social Media Activities
Still have social media law questions? Twitter’s got answers: You can tweet to me at http://www.twitter.com/ethanwall and use the #socialmedialaw
No matter what industry you’re in, you need to know the laws that apply to your social media use and how to comply with them. Don’t know what laws apply? No problem. Here are a few examples:
Now that you know the effect of social media on the law, you can focus on what’s really important: Saving the world from social media, of course. Our founding fathers will thank you.
If you have employees that use social media personally or professionally, then your company is subject to the National Labor Relations Act. If you promote products or services on social media, then the Federal Trade Commission regulates your posts. If you are in the financial services, banking, or credit industry, then your company is governed by a whole lot of laws, including Regulation Z, the Truth in Lending Act, the Fair Hous-
Ethan Wall is an attorney in Miami, Florida. He is the founder of Social Media Law and Order and the author of the Social Media Guide for Lawyers. He is a nationally recognized expert in social media and the law. Ethan has delivered speeches to thousands of attorneys, financial institution executives, and human resource professionals worldwide through his live and online multi-media programs. Ethan can be contacted at ethan@socialmedialawandorder.com
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PREVENTING HIPAA INSULT TO PERSONAL INJURY HIPAA COMPLIANCE FOR PI LAWYERS
(What You Don’t Know, What You Should Know & What You Can Do About It)
– By Glenn H. Truitt, Esq., & Malvika Rawal, Ph.D., JD
The Health Insurance Portability and Accountability Act of 1996, best
known as “HIPAA,” is sweeping legislation that was originally passed to ensure health insurance coverage for workers and their families when they change or lose their jobs, but has become widely known for establishing national standards for the privacy and security of personal health information. HIPAA represents one of the largest sources of regulatory liability, and has expanded as the data infrastructure in the healthcare industry has developed. For those businesses and professionals wholly in healthcare, HIPAA is an omnipresent and familiar reality. For many others, including personal injury attorneys, HIPAA represents a material, but often overlooked, liability. This feature elucidates the duties and associated liabilities of personal injury (PI) attorneys under HIPAA and other, similar regulations. Health Records Held By PI Attorneys Are Protected Health Information PI attorneys collect and review evidence to determine the nature and extent of their clients’ injuries caused by a specific incident. This evidence includes the injured party’s medical records. Medical records are considered individually identifiable protected health information (PHI). These medical records, stored in the law offices, can therefore be classified as PHI under the definitions of 45 CFR §160.103. PI Attorneys Are Business Associates If They Represent a Covered Entity/ Business Associate When a covered entity (CE) shares PHI with PI attorneys during lawsuits involving medical/other professional malpractice (accounting for 15 percent of all such suits)1, it makes them business associates (BA) under 45 CFR §160.103. While some may argue that the confidentiality of the PHI is maintained under the attorney-client privilege, guidance from the Department of Health and Human Services (HHS) requires the CE/BA put a Business Associate Agreement (BAA)2 in place with its attorneys before revealing any PHI.3
Vegas Legal Magazine Spring 2017 | Pg. 24
The 2013 Final Rule and Business Associate Agreements Prior to the Final Rule, implemented in 2013, a CE was held liable for civil money penalties for the actions of its agent (the BA), acting under the scope of its agency.4 However, under the Final Rule, if a BA and CE sign a BAA, it changes the agency relationship to a contractual one.5 Therefore, in the event of a breach by the attorney (as an agent of the CE), all liability for civil money penalties would still shift to the CE except when the attorney breaches the BAA and does not take all the required precautions, resulting in the unauthorized disclosure of PHI, where the liability then remains with the attorney. Duties Under Security Rule The first duty imposed on both CEs and BAs under the Security Rule is to ensure the confidentiality, integrity, and availability of all electronic protected health information (ePHI) they create, receive, maintain, or transmit.6 This rule requires an entity to implement a plan for security risk management after conducting a cost benefit analysis, of its ability to protect the ePHI.7 The firm must periodically review and modify this plan to continue to provide adequate protection for ePHI.8 The firm must appropriately sanction its employees who fail to comply with the security risk management plan.9 In addition, the firm must appoint a Security Officer who is responsible for the development and implementation of the security risk management plan.10 Employees who have access to the ePHI must only be given the minimum access necessary to complete their jobs.11 Finally, the firm must implement electronic safeguards like password monitoring, anti-virus software, remote/cloud server backups etc. which would assist in protecting the ePHI from cyber-attacks.12 Duties Under the Privacy Rule The Privacy Rule requires a CE to obtain assurances from its BAs, in the form of a BAA, that they will appropriately safeguard the PHI in their possession.13 This Rule requires the BA to implement physical safeguards, data safeguards, and a ‘minimum necessary’ policy. A “minimum necessary”
policy ensures that any use or disclosure of PHI must involve only the ‘minimum necessary’ PHI to fulfill the required task.
HIPAA FOR LAWYERS
Duties Under The Breach Notification Rule A BA, like a PI firm, must notify the affected persons, the media, the covered entity, and the Secretary of the HHS, in the event of a breach of PHI/ ePHI. 45 C.F.R. §164.402 defines “breach” as an unintended or inadvertent disclosure of PHI by a workforce member which compromises the security and/or privacy of the PHI.14 Unauthorized disclosure of the PHI is presumed to be a breach, unless the breached firm can show a “low probability that the PHI has been compromised.” Enforcement Of Duties A violation of HIPAA Rules invites an audit by the HHS. If the firm fails the audit, then the HHS proceeds to impose civil money penalties. In the past, civil money penalties were only imposed on CEs, despite the implementation of the Final Rule. On June 29, 2016, OCR announced that it settled potential HIPAA Security Rule violations with Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS), a BA of nursing homes. The alleged violations stemmed from the theft of a mobile device, affecting the electronic protected health information (ePHI) of 412 individuals. The BA agreed to pay a $650,000 resolution amount, and enter a corrective action plan. This settlement is expected to be the first in a long line of enforcement cases from the OCR, in its crackdown on negligent conduct by BAs which has led to widespread PHI breaches in 2016. PI Attorneys Representing Individuals Are Responsible for Protecting PHI Under State Law and Model Rules of Professional Conduct PI attorneys who are performing services on the behalf of the patient (here, the personal injury plaintiff (“PIP”)) are not considered business associates under HIPAA/HITECH15, but they are still governed by the Nevada Revised Statues (NRS) and the Model Code of Professional Conduct. Attorneys representing PIPs typically receive PHI from the PIP after the PIP has authorized such disclosure by signing a comprehensive retainer agreement and a HIPAA authorization form.16 Duties of PI Attorneys Under the NRS As PI attorneys are data collectors under NRS §603A.030, they have a duty to protect the PHI from unauthorized access, acquisition, destruction, use, modification, or disclosure.17 PI attorneys also have the duty to implement reasonable security measures to protect PHI from bad actors.18 If PI attorneys use an outside resource for their data storage, the outside resource must also be contractually obligated to the PI attorneys to implement similar security measures for protection of the PHI.19 The NRS requires that ePHI be encrypted before electronic transmission to ensure its security.20 The PI attorney is liable if the PHI’s security/privacy is breached, either due to their gross negligence or intentional misconduct.21 In the event of a breach, the PI attorney may be liable for civil damages.22 If the PI attorney was either involved in the breach, or profited from it, they may also be liable for restitution.23 Duties Under The Model Rules of Professional Conduct Both the NRS and the Model Rules of Professional Conduct place an affirmative duty on the PI attorney to not just protect their clients’ PHI, but also to take reasonable steps, including encryption, to prevent unautho-
rized access to the PHI when it is either at rest, or in transmission. If the attorney is either negligent or malicious, he or she stands to face penalties under both regulations, including disciplinary action levied by the Office of Bar Counsel. Conclusion Most attorneys to whom these restrictions apply are wholly unaware of their responsibilities, their risk of breaching them and the penalties and liabilities for doing so. Parsing the black-letter law can be challenging for the PI practitioner. If you have identified liability in the quick summary provided here, or if you are unsure about your liability, a quick chat with healthcare counsel who works on these matters daily will help you understand the scope of your obligations and whether you have any compliance work to do. Glenn H. Truitt, Esq. is a managing partner at Ideal Business Partners (www.idealbusinesspartners.com), a multidisciplinary professional services firm serving healthcare professionals with state-of-the-art legal, financial, compliance and strategic advice, working together to lift up their practices. IBP consults with ComplyPro (www. mycomplypro.com), a HIPAA compliance services company, serving Nevada and southern California, and employing both traditional and digital compliance tools to develop comprehensive, customized compliance solution for any size practice. Malvika Rawal, Ph.D., J.D., is a law clerk at Ideal Business Partners. She received her Master of Science at the University of Delhi in Biomedical Sciences and her doctorate degree in Free Radical and Radiation Biology at the University of Iowa. She then received her Juris Doctor at the University of Iowa College of Law in May 2016. Rawal is deeply involved with ComplyPro, a HIPAA compliance services company. 1 Demetrius Cheeks, 10 Things You Want to Know About Medical Malpractice, Forbes, May 16, 2013, http://www.forbes.com/sites/learnvest/2013/05/16/10-things-you-want-to-know-aboutmedical-malpractice/#1d3ce3a32323 2 A business associate agreement (BAA) is a written contract between a CE and a BA, which helps to assign specific duties and liabilities to the BA. 3 Per a complaint investigated by the Office of Civil Rights (OCR), there was an allegation of unauthorized disclosure of PHI to a law firm during its representation of a pharmacy in an administrative proceeding. The OCR, in its investigation, did not find any impermissible disclosure of PHI, but determined that the pharmacy chain and law firm had not signed a Business Associate Agreement, as required by the Privacy Rule of HIPAA. The OCR required the pharmacy chain and the law firm to enter into a BAA. http://www.hhs.gov/hipaa/for-professionals/ compliance-enforcement/examples/all-cases/index.html#case20; See Dicta from Wooten v. United States HHS Office of Civil Rights 2011 WL 536448, at 6-7 (S.D.N.Y. February 15, 2011). 4 42 U.S.C. § 1128A(l) 5 78 Fed. Reg. 5565, 5581 (Jan. 25, 2013) 6 45 C.F.R. §164.306(a)(1) 7 45 C.F.R. §164.306(b) 8 45 C.F.R. §164.306(e) 9 45 C.F.R. §164.308 (a)(1)(C) 10 45 C.F.R. §164.308(a)(2) 11 45 C.F.R. §164.308(a)(3) 12 45 C.F.R. §164.308(a)(5) 13 U.S. Department of Health and Human Services: National Institute of Health. HIPAA Privacy Rules: Information for Researchers. To Whom Does the Privacy Rule Apply and Whom Will It Affect? https://privacyruleandresearch.nih.gov/pr_06.asp 14 45 C.F.R. §164.402(1) 15 65 FR 82462, 82476 16 A Sample HIPAA Authorization Form, https://www.athenaeum.edu/pdf/free-hipaa-releaseform.pdf. 17 NRS §603A.210.1 18 Id. 19 NRS §603A.210.2 20 NRS §603A.215.2(a) 21 NRS §603A.215.3 22 NRS 603A.900 23 NRS §603A.901
Vegas Legal Magazine Spring 2017 | Pg. 25
Expert REPORT
WHAT IS YOUR EARNING CAPACITY?: (It May Be More Than You Think!)
In Nevada courts, personal injury attorneys frequently ask juries to assess
–By Stan V. Smith, PhD
the loss of earnings capacity for a plaintiff that has been injured or killed; however, this is not an easy assessment because one’s past earnings are not necessarily a guide. For example, what if the plaintiff was only 13 years old (or 13 months old), had no prior earnings history, and an incomplete education (or none at all)? And what of tech masterminds like Steve Jobs and Michael Dell…two men who didn’t finish college yet whose future earnings would’ve been hard to fathom when they left school? Or imagine if Bill Gates had sustained a fatal injury during his sophomore year at Harvard?
In even simpler terms:
These are complicated situations, but they illuminate the difficult job of a jury to place a value on potential earnings in wrongful death and personal injury claims when measurable values are moving targets. How do juries approach it? A forensic economic evaluation may illustrate various future realistic scenarios for their consideration. But before that evaluation, it’s important to understand and distinguish between earnings capacity and expected earnings.
• Earnings capacity is based on what a person would have been capable of earning….and is different than what a person would have been expected to earn.
ACTUAL, EXPECTED AND CAPACITY EARNINGS: LEARNING THE DIFFERENCE In Nevada (as in most states), “earnings capacity” is the measure of loss. In your past, you may not have earned as much as you were capable of earning, but Nevada allows you to claim what you were capable of earning. Imagine a villager who has a 10-gallon jug who goes to the river daily to fill it with only seven gallons, since that’s all her family needs. If someone breaks the villager’s jug, what size jug should replace it…a seven-gallon jug since that was the average amount carried, or a 10-gallon jug, since that is the actual capacity of the broken jug? Nevada allows the claim for a 10-gallon jug replacement since that is the jug’s capacity. Similarly, a person’s actual earnings, and their earnings capacity, are established in labor markets as a result of supply and demand based on what a person was able and willing to do, and based on employers’ need for that work.
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• Actual past earnings is based on what a person did earn in the past. We can look a person’s W-2s or social security earnings statements to determine these. • Expected earnings is based on what a person might be expected to earn in the future and involves the probability that a person would generate earnings.
Frequently, earnings capacity exceeds expected earnings. Past earnings can be an absolute floor for earnings capacity, but earnings capacity can certainly be much higher than the actual past earnings. And earnings capacity can increase through planned future training and education. UNDERSTANDING EARNINGS CAPACITY In order to generate future earnings, a person has to be participating in the labor force, and has to be employed. The labor force (i.e., those participating) includes the employed and the unemployed. Participation means a person is available for work. You can be participating, and yet not employed; yet since you are seeking and hoping to find work, you are in fact participating in the labor force. There are factors that preclude participation. Some of these factors are involuntary, such as injury or illness. Now: A person is not participating in the labor force if they are sick and cannot work or if they are voluntarily opting out to take time off to care for a newborn or sick family member, or if they’re going back to school for additional education. Bottom line: If you are not available to be employed, you are not participating.
But it gets more nuanced than that… because even if you are participating in the work force, you may not be employed. You may have been laid off, or you quit your job and are seeking another position. Maybe you moved from one state to another, or your employer moved out of state. To generate actual earnings, a person must be participating and must be employed. But having an earnings capacity does not require either participation or employment, in the past or in the future. It requires the capacity to be participating (i.e., not injured) and capacity to work (i.e., with sought after skills). It does not require that we know an actual employer or identify an actual job. It only requires that there are employers and that there are jobs. You can’t have an earnings capacity in the desert. UNDERLYING ASSUMPTIONS OF EARNINGS CAPACITY Let’s review some examples of how the realistic assumptions of earnings capacity will differ depending on the plaintiff: If a child is injured, realistic assumptions must be made about the child’s future level of education—which can be influenced by the level of education of the parents, but on average, is greater than their parents’ education. Since the average level of education today for young people who enter the labor force is “some college,” a jury might be shown several education scenarios for an injured child: high school graduate; some college; and college graduate. (Note: If the parents are both college graduates, the likelihood of the child completing college does increase.) Let’s imagine someone in college. What are the realistic assumptions? College completion? Graduate school? This will depend on the actual testimony of what the plans were prior to the injury. Some people know during their second year in college that they want to become a doctor. Others may not know their future desired occupation until they leave college and work for some time. They may return to graduate school. Plans for young people may not be particularly precise or set in stone, and thus several scenarios are useful. What about someone early in his or her career in sales, finance or law? Typical entry-level earnings are not a significant factor in determining midto late-career earnings. An entry-level college graduate may start out at $40k a year, in a career that may allow them to double or quadruple their earnings between ages 30-40. And these earnings may double or more in the next decade or two, when they are 50-60 years old. Again, a forensic economist can show multiple scenarios that a jury can weigh, along with career plans, employment evaluations, etc. PREPARING JURIES TO EVALUATE EXPECTED EARNINGS A jury must be educated to understand that potential or expected earnings are not the same as earnings capacity. Imagine a 55-year-old female attorney who is making $100k annually, with three daughters who are beginning to have children of their own. She may inform her husband, who also makes an excellent living, that she has decided to quit her job, and as grandma, intends to provide care for the grandchildren at her home. This retirement move will allow her daughters to pursue their careers, and it will place the grandchildren in a family environment rather than with strangers at a
daycare facility. Were this woman to become injured the day she announces that she will have zero expected earnings in the future, her earnings capacity would still be $100k per year. In evaluating earnings capacity, for many employed people, the most recent year is their highest year of earnings, as earnings generally increase over time. But sometimes, one past recently high year is not necessarily the best indicator of earnings capacity. Earnings of a real estate agent, for example, can vary depending on economic climate, referrals, etc. Referrals may come in clumps, and the economics conditions may vary. In such a situation, averaging more than one prior year may be a reasonable approach. Another example regarding earnings capacity that I sometimes share with a jury is that a car’s upper speed limit (its capacity) is much greater than its average speed. In Chicago, I might average 10 miles an hour during the year. But if I were to take my car to a dealer for a trade, I would expect him to consider that it can go 90 miles per hour or more down the freeway (in Montana, legally!) and not offer me the price of a clunker. EARNINGS CAPACITY OUTLIERS Courts have not given clear guidance on all assumptions about earnings capacity, which has made some assumptions seem unrealistic. For example, anyone could take a second job, part time, and it’s something that is within the capacity of most. Most people don’t exercise that capacity, but if they have in the past, it should certainly be considered. Yet if they haven’t, it may be a stretch to ask a jury to consider that possibility (although it could be shown as an additional scenario if there is some chance it might have happened). Additionally, many people could earn more if they increased their level of education, but again…if they are mid-career, it may be a stretch to consider this to be realistic. When forensic economic testimony is provided to a jury showing the various alternative earnings capacity scenarios, along with testimony about education and work plans from family members and others, a full and fair recovery can be achieved. The economist can produce information that serves as a tool, an aid and a guide for the jury. Stan V. Smith, Ph. D., is VLM’s Quarterly Economics Columnist and president of Smith Economics Group, Ltd. Trained at the University of Chicago (one of the world’s pre-eminent institutions for the study of economics and the home of the law and economics movement), Smith has also taught at the university and co-authored the first textbook on the topic of economic damages. A nationally renowned expert in economics who has testified nationwide in personal injury, wrongful death and commercial damages cases, Smith has assisted thousands of law firms in successful results for both plaintiffs and defendants, including the U.S. Department of Justice. Smith also developed the first course in forensic economics at DePaul University, and pioneered the concept of “hedonic damages,” testifying about the topic it in landmark cases. His work has been featured in the ABA Journal, National Law Journal, and on the front page of The Wall Street Journal. Smith Economics Group, Ltd., is located at 1165 N. Clark Street, Suite 600, Chicago, IL 60610. Dr. Smith may be reached at 312-943-1551 and at Stan@SmithEconomics. com.
Vegas Legal Magazine Spring 2017 | Pg.27
THE PREMIER GALLERY OF FINE ART IN LAS VEGAS
Warhol, Picasso, Chagall, Dalí, Miró, Erté, Murakami, Lichtenstein
Martin•Lawrence Galleries The Forum Shops at Caesars Palace
Celebrating Forty Years of Fine Art
M A R T I N L AW R E N C E .C O M • V E G A S @ M A R T I N L AW R E N C E .C O M • ( 702) 9 9 1- 59 9 0 Marc Chagall, Couple in Mimosa (Nice et la Côte d'Azur, CS.32), hand-signed lithograph, 24 x 18 inches
MEET THE
INCUMBENT – Judge Richard Scotti In this edition of Meet the Incumbent, VLM interviews Judge Richard Scotti, a judge in the Nevada Sixth Judicial Court.
Fairness, courtesy and careful deliberation. Since Judge Richard Scotti was elected in November 2014 to a 6-year term as District Court Judge, Department 2, those are the tenets he’s leaned on to preside over the legal community’s civil and criminal cases about which he is so passionate. In 1984, after graduating with honors from the University of Southern California with degrees in political science and international relations, Judge Scotti earned his law degree from Hastings College of the Law where he graduated in the top 10 percent of his class. Admitted to practice law in Nevada and California (and a 25-year Nevada resident), he practiced complex business, construction, and general civil litigation for 26 years before joining the bench serving two terms on the Nevada State Bar’s Board of Governors (2010-2014) where he was devoted to projects that advanced civility, diversity and education among Las Vegas’ legal community. Over the years Judge Scotti’s work has also included service as an arbitrator, mediator and regional coordinator for the Fee Dispute Program of the State Bar of Nevada (1999-2014), and the Nevada State Contractor’s Board (201314); a mediator for the Nevada Foreclosure Mediation Program (2009-2010); a settlement judge for the Nevada Supreme Court (1999-2009); a member of the Clients Security Fund Committee of the State Bar (1997-2002); and a writer/editor for the “Ask A Lawyer” column in the Las Vegas Review Journal (1994-95). Arguably his biggest non-work passion has been handling pro bono cases and participating beside students of all ages in various mock trial and moot court programs. An avid family man and lover of political history, poker and chess, Judge Scotti has been married for 30 years and has two grown children. For his contribution to the Las Vegas legal landscape, VLM is honored to step into the mind of this issue’s Meet The Incumbent.
Vegas Legal Magazine: What in your childhood or young adulthood could you look back on and view as a sign of what was ahead for you in your law career? Did you have a moment when you knew what you wanted to do? Judge Scotti: My pre-teen years were spent living in a poor community in Carson, Calif., behind an oil refinery, and surrounded by frequent robberies, drug deals and murders. My elementary school had gangs, drugs and knife fights. As such, I came to recognize at an early age that all was not well in the world. Fortunately, I had loving and attentive parents who directed my thoughts toward compassion for the victims, justice for the criminals and correction of the conditions that promoted such havoc in our community. My parents encouraged me to read at an early age. A favorite book of mine was Meet Abraham Lincoln. I was struck by the president’s perseverance in overcoming all odds to become a lawyer and great leader. Then, in fourth grade, I served on a “legal team” to prosecute a student for disruptive talking in class. I found the exercise of assembling evidence and presenting our case to be fascinating. In fifth grade, my mother had me read an abridged version of Victor Hugo’s Les Miserables. Handed down from my French grandmother, this tale identified many issues surrounding human dignity and compassion, and instilled within me the concept that just laws require just application and enforcement. Finally, for career week in sixth grade, I had to select a probable career and a path to get there. By then, and without hesitation, I knew my future would be in law, and my law school would be Hastings College of Law. And so it was.
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MEET THE INCUMBENT VLM: What do you love most about being involved in the law community in Las Vegas? Does it differ from practicing law or sitting on the bench elsewhere? JS: I practiced law in Los Angeles for 5 years before moving to Las Vegas. Due to the relatively large number of lawyers there, attorneys remained mostly anonymous to each other. This anonymity begat incivility. Las Vegas is different. Because our legal community is relatively small, we get to know each other, care about each other, and follow each other’s lives. We recognize that our behavior has consequences because we will all see each other again. I recognized this difference almost immediately when I began working for Mort Galane in Las Vegas in 1992. I was surprised to learn that attorneys often served papers by hand delivery, with opposing counsel signing an acknowledgment of receipt. In my recollection, most attorneys in Los Angeles would never think of acknowledging receipt of anything, unless under court order to do so. Even then, there would likely have been several preceding motions for sanctions. It is gratifying to note that in the past 25 years, while the size of our legal community has grown, the general level of civility has remained a constant. VLM: What is the most memorable case you tried as an attorney before taking the bench? JS: When I was a senior associate at Kemp, Jones & Coulthard, I was encouraged to handle pro-bono cases. As such, I accepted a case from the Legal Aid Center of Southern Nevada to represent a woman whose daughter had been placed into an in-patient drug rehabilitation center after abandoning her mentally impaired son. The grandmother felt hopeless, dealing with problems that seemed insurmountable. She was unable to get her grandson enrolled in a school for special needs persons. Nor was she able to make his health care decisions. Also, she was having trouble feeding the family due to her inability to obtain his previous government assistance payments.
ory. I hope that will someday change. But in the meantime, I am haunted by the murder of a sweet young woman, a beloved Clark County elementary school teacher, who was brutally beaten to death with a baseball bat. The jury found her estranged husband guilty of this crime. The woman’s 14-year-old son awoke to her screams and called police, while the 18-year-old-daughter climbed out her window, running to a neighbor’s house for help. But the police could not arrive in time to save the woman, not to mention the lifelong trauma for the children. Amidst the extreme good in this world exists too much evil. And this evil is often difficult to spot in advance. Despite the tough cases and the bad memories they create, I fully appreciate my role advancing justice for all. One of the most awesome responsibilities that I have is to exercise my discretion to mete out punishment for the guilty. The sentences I give are engrained into my memory because they have such profound impact— positive and negative—on so many lives. VLM: What is the most challenging thing about sitting on the bench versus trying cases as an attorney? And was there something in your transition that took some getting used to? JS: As a judge, it is not my role to instruct attorneys on how to present their case. But it is often difficult to resist the urge to jump in when an attorney misses a critical question, or when I believe the jury may not understand a critical fact. In private practice I questioned witnesses in thousands of hours of depositions and I served as a Supreme Court Settlement Judge, a State Bar Fee Dispute Arbitrator, and a Foreclosure Mediator. These experiences have left me with a strong desire to ask questions in every case, and to obtain as much information as realistically possible to uncover the truth. I understand, however, that this is not my role as part of the judiciary. Although court rules do permit the judge to ask an occasional question to help the jury to understand the testimony better, it must be done in a completely neutral manner. In any event, I continue working on how to resist the urge to ask, and let the attorneys try their own cases.
I facilitated this woman’s desire to become the legal guardian of her grandson, thus opening the doors for the solutions to her problems.
VLM: Describe a situation where you had to support a legal position that conflicted with your personal beliefs, and how you handled it.
This case was not memorable due to the hours I worked, nor the results I was able to obtain. It was memorable because when I told the woman what I had done, she cried. She cried because an institution and a group of people actually cared, and helped her without asking for anything in return.
JS: In one case, I had to invalidate a murder suspect’s confession of guilt after concluding that the suspect had not been given an appropriate Miranda warning. However, having read the confession, my personal belief was that probable cause existed to believe the defendant was guilty. My task was to follow the law, as delineated by the United States and Nevada Supreme Courts.
This is what makes our profession in law so special. We are in a position to help so many people. VLM: What is the most memorable case you have presided over as a judge... and why? JS: Unfortunately, my most memorable case as a judge is not a good mem-
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I was guided by the analysis in recent decisions from United States District Court Judges Richard Boulware and Jennifer Dorsey. These judges aptly explained the importance of police warning a suspect that he/she has the right to consult with an attorney prior to the commencement of questioning, as opposed to merely advising the suspect that he/she has the
JUDGE RICHARD SCOTTI right to the presence of an attorney during questioning. This important distinction could result in the defendant getting legal advice to not speak with officers at all. As it turned out, the jury found the defendant guilty of murder without the confession. This situation served as a reminder to me of the judiciary’s role in safeguarding the constitutional rights of defendants.
VLM: Describe a court situation that tested the limits of your patience. How did you respond? And in hindsight, would you have done anything differently? JS: Two years ago, I chaired the State Bar Civility Task Force, working with the Bar to amend the Attorney Oath. This oath requires attorneys to act civilly with the public, the court, and each other. It seems that a few attorneys may not have studied the new language. Discourteous behavior can test the court’s patience. Every so often, there is a pairing of attorneys who lose composure. They may yell at each other, interrupt, engage in name calling, threaten sanctions, and exaggerate facts in the process. I once found it necessary to position my marshal directly between two attorneys to avoid the risk of violence. When faced with such disruption, I remind the parties of the Clark County Pledge of Professionalism, and sometimes direct them to read the ABA 2011 Resolution on Civility. For their convenience, I keep copies of these documents behind the bench, dispensing them free of charge as necessary (occasionally to the recipient’s chagrin). Civility helps us all—on both sides of the bench, aisle, gallery, or other—to resolve conflict with respect and integrity. VLM: Biggest pet peeve triggered by attorneys that appear in your courtroom? JS: My primary peeve is when attorneys, in both civil and criminal cases, unnecessarily waste jurors’ time due to their lack of concern, unpreparedness, or incompetence. Examples include being late for the start of trial, or late in coming back from lunch or shorter recesses. Some attorneys take extra long breaks to fix their disarray of exhibits. Sometimes, they do not have witnesses ready to testify on time. Attorneys may use breaks to make frivolous or weak motions, without giving the court the benefit of a written brief. Attorneys may cause delays by not resolving equipment and technology issues before the start of trial. Also, some attorneys delay in submitting jury instructions, thus forcing the court to settle them at inconvenient times. Our judicial system relies on a group of fair and impartial jurors who depart from their daily routine, family life and commitments to perform the extremely daunting task— unfamiliar to them—of sitting in judgment. While I am sympathetic of unforeseen problems that arise during trial, we must all work diligently to respect the value of jurors’ time in service to our community.
VLM: What is your best piece of advice for litigants and/or attorneys that appear in your courtroom? JS: When walking into my court, litigants and attorneys should feel that they know more about the facts of the case, and the applicable law, than anyone else in the building. They should begin their argument with a summary of the issues, the applicable rule of law, and the relief sought. They should be prepared to discuss any relevant precedents and nuances, and be able to tell the court their understanding of the opposing counsel’s position, and why it is wrong. And in the likely event I interrupt oral argument . . . be prepared to answer the court’s questions. VLM: Knowing what you now know about your work, what advice would you go back and give your younger self about practicing law, or sitting on the bench? JS: Whether practicing law, sitting on the bench, or driving a truck . . . we are all a work in progress. Every victory, every loss, every mistake, every failed argument, every misspoken word, and every road taken, leaves a mark in our memory and changes us. If we pay attention and remain receptive in the face of adversity, these moments help us become better people, better advocates for others, and better decision makers. So, celebrate your advances and learn from your setbacks. If I had to offer my younger self any advice about the practice of law, it would be to recognize that every time you are knocked down, you have earned an opportunity to learn and grow. I would also tell my past self to better express appreciation for the opportunities you will be given, and to say “thank you” more often to those who help you along the way. VLM: What has being a judge meant to you? JS: I am both fortunate and grateful that I was born in America, the finest country in the world. Being a judge allows me the opportunity to express that gratitude through service to our community. I take this opportunity very seriously. My path to becoming a judge did not happen in a vacuum. I was fortunate to have had fine parents, teachers, mentors, and co-workers. I was even more fortunate to have a very supportive family, including my wonderful wife of 30 years, and my two fine children, all of whom I am quite proud. My pride in America is prominently displayed in my courtroom. My courtroom displays a full-size framed copy the Constitution of the United States, reminding all of us why America has the finest system of law and governance in the world. Directly behind the witness stand, a large picture of the Statue of Liberty is displayed for all to view. The message is to remind everyone that the American justice system applies equally to all who enter my court. Being a judge emboldens me to search for more compassion, more time to study, more insights on how to be fair, and more wisdom to find the right answers. Thank you all for allowing me to serve you.
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PRESENTS
WINTER LAUNCH PARTY DECEMBER 2, 2016
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THE GAMBLING DIVERSION PROGRAM IS A WIN-WIN FOR NEVADA’S CITIZENS By Douglas Crawford, Esq.
In October 2008, I was appointed to the Subcommittee on Legal
Issues of the Governor’s Advisory Committee on Problem Gambling. Together, we drafted Assembly Bill 102, giving authority to any individual judge to create a tailored Gambling Diversion Program for problem gamblers who commit crime(s) in furtherance of their addiction. Myself and others testified for the passage of the bill in the Assembly Judiciary Committee, and in 2009 it was passed into law as NRS 458A.200. Ironically, I was the first person in Southern Nevada to be granted diversion under the very statute I helped pass into law. I report with great humility that on Feb. 1, 2017, the court found that I had successfully completed the program, and my felony case was dismissed. Additionally, full restitution in the amount of $304k was paid to the innocent persons I victimized while in the throes of gambling addiction. In my case, the diversion program functioned precisely as the legislature intended: victims received full restitution; and Nevada taxpayers did not pay a nickel for my treatment program (or alternatively, the extremely high cost of incarcerating me). The people of Nevada gave me a successful and just punishment, and I have kept my progressive, incurable and often deadly disease in remission for almost 10 years. The victims won, the state of Nevada won, and I won by achieving recovery from a horrible addiction. The stated goals of the statute are: • To assure that victims of criminal acts committed by a problem gambler are made whole through restitution; • To avoid any burden on Nevada taxpayers;
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• Preventing persons who are not problem gamblers from receiving the benefits of the statute; • Assuring that only certain problem gamblers are qualified to receive diversion; • Getting treatment for the problem gambler solely at his, her or their expense; and, • To allow a problem gambler who successfully completes the program, and pays restitution to dismiss and seal the conviction so they can become a successful, tax-paying citizen without being a burden on the state. NRS 458A.200 allows “a court” to “establish a program for the treatment of problem gambling.” Nothing in the law requires a “brick and mortar” gambling court, which would pass on costs to the taxpayer. It also requires the court to set forth “terms and conditions” for completion of the program, thus allowing the court to tailor the program to the specific offense or the specific needs of a particular problem gambler. The gambler must agree to pay restitution to victims; must present periodic reports of progress to the court; and must comply with terms of the program administered by a “qualified mental health professional” at his, her or their own expense. In the event the problem gambler does not have financial resources, the court is mandated—to the extent practicable—to refer to a treatment provider that receives federal or state funding to offset costs not born by the gambler. NRS 458A.210 protects the public by making certain persons ineligible for diversion. If the problem gambler has previously committed a felony or gross misdemeanor against a vulnerable victim, a crime against a child, a sexual offense, an act constituting domes-
tic violence, two or more prior felony convictions, or other felony criminal proceedings are pending, they do not qualify for diversion. NRS 458A.220 and 230 mandate that a qualified mental health professional (appointed by the court, not selected by the defendant) must determine that the person seeking diversion is a problem gambler and that he, she or they committed the crime in furtherance of their addiction. This prevents defendants from “faking” gambling addiction to obtain benefits of diversion. It also assures that the crime committed by the gambler was related to the addiction and not just motivated by greed or intentional dishonesty. NRS 458A.240 benefits defendants who successfully complete the program by mandating the court to “set aside” the conviction if the qualified mental health professional certifies to the court that the person has satisfactorily completed the program of treatment and the court determines that the terms of diversion have been satisfied. This benefits society by allowing the problem gambler to avoid the stigma of a felony conviction, thus encouraging gainful employment and payment of taxes. However, if the court determines that the gambler has not successfully completed the program, the court may sentence the person and give punishment up to and including prison time. NRS 458A.260 clearly provides that the diversion program does “not require this State or any of its political subdivisions to establish or finance any program for the treatment of problem gam-
bling.” Nevada taxpayers do not bear any financial burden for the diversion program. This well-conceived diversion program benefits all parties involved. First and foremost, victims get paid! Second, justice is given to Nevada citizens. Finally, gambling addicts receive treatment that benefits society as a whole. Additionally, these benefits are provided at no cost to taxpayers…just one more reason that illuminates how well diversion programs work! And where the reasoning stated above also applies to drug and alcohol programs, in short, everybody wins! Douglas C. Crawford, Esq., was honorably discharged from the United States Army in 1976 as a Vietnam-era veteran. He completed his undergraduate degree in political science from Southern Oregon State College (now Southern Oregon University) in 1981 and graduated from University of the Pacific, McGeorge School of Law in 1984. Crawford was admitted to the Nevada bar in Las Vegas in 1985 and started his own firm in 1989, practicing in criminal defense and family law. He is a founding member of the Nevada Attorneys for Criminal Justice and the 2001 recipient of the Louis Wiener pro bono award for representing victims of domestic violence in family law matters. In 2008, Crawford was appointed to the Subcommittee on Legal Issues of the Governor’s Advisory Committee on Problem Gambling. He participated in the drafting of NRS 458A.200, which created diversion for gambling addicts who commit crimes in furtherance of their addiction, and testified for its passage in the Assembly Judiciary Committee of the Nevada State Legislature. The statute has saved lives and assured that victims of gambling addicts who commit crimes receive restitution. On Feb. 1, 2017, the court ruled that Crawford had successfully completed the gambling diversion program and his case was dismissed. On June 19, 2017, Crawford will open his solo practice doing family law, criminal defense and personal injury cases. www.douglascrawfordlaw.com
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V
COVER STORY
OTED
MOST LIKELY TO
SUCCEED —By Valerie Miller
Many people look back on high school with mixed emotions. Nostalgia, humor, recollections, longing, and sometimes regrets may color memories of teenage days gone by. But for two Nevada women, their time at Clark High was the start of something big.
Now the Chief Judge of the Nevada Court of Appeals—the first woman to hold this seat in the Silver State—Abbi Silver sits beside me, thumbing through her Clark High School yearbooks. The daughter of prominent Las Vegas surgeon Frank Silver, she recalls the lifelong bonds formed in those school days in the early 1980s; in particular, then- teenage Silver struck up a friendship with another student with a prominent dad: Catherine Cortez, daughter of the former head of the Las Vegas Convention and Visitors Authority—the late Manuel “Manny” Cortez. Silver’s own father, Frank, had opened the Boulder City Hospital, and the two high school girls met after Frank Silver transplanted his family to Las Vegas from what Silver remembers as a very happy life in the small Nevada town of Boulder City. “I had a nice childhood, growing up there in Boulder City,” Silver
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recalls. “My dog followed me to school half the time. It is just a really nice place to grow up. I had a pretty idyllic childhood.” But Frank Silver wanted to practice medicine in Las Vegas hospitals. Then a sophomore, Abbi transferred to Clark High School where she met Catherine, and the two teens did everything from work on the yearbook together to play on the powder-puff football team. “[At Clark] I met a lot of my friends that remain my friends to this day, including Nevada’s own U.S. Senator Catherine Cortez Masto. I knew her as ‘Catherine Cortez,’” Silver reminisces, turning the pages of her senior yearbook for the class of 1982. “We [did] yearbook together. And, as you can see, she signed my yearbook right here on the first page. “One of the things she told me was, ‘I hope … you have a great life,’” points Silver. “That is Catherine’s entry right there. It was really sweet.” While the two young women parted ways after graduation, they stayed in touch over the years and found themselves on similar paths. Both graduated from separate law schools and became attorneys. One started out working for the Clark County prosecutors’ office (Silver) while one went on to become Nevada’s attorney general before being elected as Nevada’s first female senator last November, as well as the first Latina in the United States Senate (Cortez Masto). And after voters passed a measure in November 2014 creating the Nevada appellate
a katz / Shutterstock.com
With a history binding them to the same hallowed Clark County halls, Nevada’s top female politicos share their passion for improving the Silver State…one example-setting measure at a time.
court, Cortez Masto gave Silver a reference for the latter’s appointment to the new appeals court…the first woman to hold the seat. You could say it’s been something of a tag-team, mutual admiration society between the two former high school classmates. “I have known Abbi for so long, and I am proud of her,” Cortez Masto says in an interview where she was all too happy to discuss her old friend. “[I’m] proud of what she has done after high school…and now she is one of our appellate judges.” In an age of raised eyebrows and cynicism over some of our elected officials, Cortez Masto says she still sees that friendly teenager she first met more than 35 years ago in the woman Silver is today. “Abbi has not changed, and that is a good thing in the sense that she is so full of life. Everybody she has ever met just loves her.” Alternately, Silver volleys back. “We have watched each other’s careers build,” says Silver. “It is really pretty neat that she is our U.S. senator now. I am really proud of her.” There were other famous (and sometimes infamous) people who went to Clark High at the same time as Silver and Cortez Masto. “Lance Malone was our student body president and our senior ball king,” says Silver reaching for her 1980 yearbook—her first year at Clark. “And when I show you the senior ball picture, you are going to see Rory Reid was also on the homecoming court, which is kind of fun. So, I had some really interesting characters there.” Indeed, Clark High School’s early 80s’ classes had their share of stars in Nevada history: Rory Reid, the son of former Senate Majority Leader Harry Reid, would go on to head the County Commission and would also launch an unsuccessful bid for Nevada governor in 2010, losing to now-Gov. Brian Sandoval. (In an ironic twist, Cortez Masto filled Harry Reid’s senate seat when he retired in January.) The student body also included people who would go on to become well known for some of the wrong reasons. Former Senior Ball King Lance Malone, who attended Clark and graduated before Silver and Cortez Masto, became a country commissioner and lobbyist but later became ensnarled in the infamous “strippergate” scandal of a decade ago, and was convicted of being the “bagman” in the Cheetah’s stripclub scheme involving influence peddling and county commissioners. In 2005, Malone was sentenced to 36 months in prison. (He has since been released and lives in the valley). Malone graduated in the Clark High class of 1980…a class that was also not immune to senseless tragedies.
As Silver admires Malone’s photo—her high school crush—she points to a beautiful girl who was part of that same royal court. “That young lady was murdered,” says Silver. “Her name was Jamey Walker. That was a cold case. She was murdered the year after high school in ’81. She was raped and murdered out by Lake Mead. And they just found her killer through DNA.” The story, which had hung over the class for more than 30 years, involved a ransom demand for Jamey Walker’s safe return. As daughter of the late past president of the local NAACP, Eleanor Walker, she was considered “Westside royalty” and was kidnapped from her home. The press reported her later making pleas for help on the phone to her parents. But she was murdered before the ransom could be raised in what was Nevada’s first kidnapping-for-ransom of an African American. Last year, convicted felon Willie Lee Shannon accepted a plea deal whereby he entered an “Alford plea” in Walker’s death, a type of plea that allows a defendant to admit the prosecution has enough evidence to convict them, but does not require them to admit guilt. Shannon— nicknamed “The Cannon”—was a Nevada state boxing champion and neighbor of the Walkers. A Clark High grad and UNLV student at the time of her death, Walker was Las Vegas’ first African-American prom and homecoming queen. Her king? Danny Tarkanian, who Walker’s mother had recalled in earlier press accounts. Tarkanian became a 2016 Republican Congressional candidate who narrowly lost his race in November to Jackie Rosen, Cortez Masto’s fellow Democrat. Danny Tarkanian is also the son the late, legendary UNLV Runnin’ Rebel Basketball Coach Jerry Tarkanian. Silver turns the yearbook page to recall happier memories involving classmates. “Also, in my senior year, right over here, we have two other judges that I am very good friends with: Judge Joanna Kishner and Judge Kathleen Delany. Kathleen was a year younger than me. And then Joanna and I were actually law-school roommates.” With plenty more entries to write in the yearbook of their lives, Cortez Masto says she thinks the combined success of herself and her former classmate will inspire future generations of school girls to reach for their dreams. “We meet so many incredible people in our community, including young girls,” says Cortez Masto. “There is this kind of twinkle in their eyes. It is exciting in the positions that Abbi and I hold, because we are blazing a trail for them. And the young girls that I meet—Latinas, and so many wonderful high school girls, elementary school girls—they know they can achieve.”
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COVER STORY Judge Abbi Silver: Winning Cases to Win Equality
March is known for celebrating women in business and in history. Fittingly, Judge Abbi Silver recently made state history by becoming the first female chief judge of the Nevada appellate court.
Silver has certainly paid her dues. After graduating Clark High School in 1982, she went to the University of Nevada, Las Vegas, and graduated from UNLV as a political science major in 1986. (Fun fact: The future judge tried her hand in professional cheerleading for the Utah Jazz in the 1980s, when the NBA team played some home games in Las Vegas. It was only when departing for law school that Silver briefly moved away from Southern Nevada. “We had no law school in Nevada. We were one of a couple of states that didn’t have one. So, I went as close as possible, to L.A., to Southwestern Law School,” Silver says. “I went for 3 years, came back, and started practicing [law] immediately. I took and passed both the California and Nevada bar [exams].” Silver soon worked for the district attorney’s office, where she became chief of the special victims unit at the DA’s office. That SVU prosecuted cases involving domestic homicide; domestic violence and stalking; sexual assault; and, sexual abuse of children and adults. “It [also] involved abuse involving physical or mental injury of children. Shaken babies, [or] any kind of medical case would go to our unit,” she explains. Silver’s career ascended with her election to Municipal Court in 2003. She was then elected to Las Vegas Justice Court in late 2006, and took office in January 2007. She soon filed to fill a District Court vacancy, and was later elected twice without opposition. In 2014, Silver was appointed to the newly created court of appeals. Despite her advancement and achievements, Silver says that starting out as a female attorney in the late 1980s and early 1990s was no easy task. “A judge, judges: they called me a ‘girl attorney’ and [said] I was too pretty,” Silver recalls. “Honestly, they meant it really nice. It is just [that] as a woman, trying to get respect…I definitely can tell you women worked really hard to get respect, especially at the beginning, in the DA’s office.” Silver hasn’t forgotten the struggle for equality. “It was really tough because I came in with two guys, and they got all the really good cases, and I got put on some track that really didn’t have any trials,” she says. “So, I had to work twice as hard.”
before authorities caught him. “He was so horrible that there are many, many TV shows on this particular case, like on America’s Most Wanted,” she explains. “Ultimately, when I became a judge years later, they found him in Mexico, dead, with a new wife who he had abducted. He had children with her and, ultimately, he killed himself and his whole family in Mexico.” Judge Silver has been invited several times to appear on the Discovery Channel’s Investigative Discoveries television program. Once or twice it was for the story of Mary Kay Beckman, the Las Vegas woman who was nearly murdered by a man named Wade Ridley, who she met on Match.com. That case, due to the nightmarish scenario of meeting a monster on a dating site, continues to retain viewer interest. “They call the episode the ‘Dates from Hell,’” Silver says. ”I still get calls from the Discovery Channel—as of last Thanksgiving. They wanted me to come in the beginning of December to Minneapolis. I just wasn’t able to get there.” She couldn’t get there that time, but Silver says her dedication to being an advocate for those who can’t fight won’t stop. And thanks to her new position, Silver’s passion for justice can benefit Nevada for years to come.
While the work has been hard, it has also been fascinating. Some of Silver’s cases became the subjects of true-crime books or television series; among them, the 1998 case of the defendant John Patrick Addis. The book Ghosts, by local reporter Glen Meeks, covered the case. “Addis was an Alaskan State Trooper who actually taught crime scene investigation,” recalls Silver. “He had been fired from the police department after he had abducted his kids from Alaska and kept them from their mother. Ultimately, he met a woman here in Las Vegas under a fake identity. Unfortunately, that woman vanished in Arizona and was presumed dead.” Silver successfully managed to get a rare indictment without having the body of the victim. Sadly, while her success in that case was groundbreaking, Addis fled to Mexico and was never brought to justice, and claimed more victims
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Abbi Silver with Jerry Eaves & Bobby Hansen of the Utah Jazz
COVER STORY
Catherine Cortez Masto
temporarily suspending immigrants and visitors from a handful of nations that the Obama Administration had identified earlier as hotbeds of terrorism. A federal judge in the state of Washington stopped that executive order, and the court ruling was upheld by a panel of the 9th U.S. Circuit Court of Appeals. Trump has since revised and re-issued another such order.
Sen. Catherine Cortez Masto Is Ready To Fight Our President
Nevada’s first female senator is keeping herself very busy. In late February, Catherine Cortez Masto, D-Nev., squeezed in this phone interview before preparing to attend President Donald J. Trump’s first address to a joint session of Congress. Not surprisingly, the Democrat and Nevada’s first Latina senator is not a fan, and has been vocal in her distain for President Trump’s policies and many of his cabinet picks…one of which hits especially close to home. Cortez Masto was among the united group of Democrats that opposed the confirmation of Betsy DeVos, Trump’s nominee to head the department of education. Cortez Masto points to her own public school roots at Clark High School, where she attended with Nevada Appellate Court Chief Judge Abbi Silver, as an example of a successfully improved public school. “It is now a magnet school for math and science that is publicly funded,” says Cortez Masto, “and that is a positive thing. That is why I did not support Betsy DeVos. She has spent most of her life diverting money away from public schools. We need to be ensuring that we are funding an education system that has equal access for everyone to get a really great education.…Unfortunately, we are now at the bottom of all the bad lists when it comes to education, and we need to improve it.” Nevada’s new junior senator would also like to find a way to make college more affordable so that students “don’t have to mortgage their future just to get (a degree) and to fall into this enormous debt.” In particular, Cortez Masto would like to make it easier for students to refinance their student loans at lower interest rates. Says the senator: “The government should not be making money off of students.”
Cortez Masto is diametrically opposed to the president’s immigration and travel policies. “My first bill that I introduced in the United States Senate was to rescind that [executive] order, because I think it is that wrong solution for what we are dealing with,” says Cortez Masto. “The solution to this broken immigration system that we have is to pass comprehensive immigration reform. It is not to build a wall. It is not to tear families apart. It is not mass deportations. What we should be doing is working in a bipartisan manner to pass comprehensive immigration reform, which I know can be done because the United States Senate has done so. We have passed a comprehensive immigration reform, in the past, in a bipartisan manner.” The American people would benefit from such a move, says Cortez Masto. “The comprehensive immigration reform would reduce our deficit by a trillion dollars. We would add to our gross domestic product by $832 billion. It would grow our economy and create jobs.” And, while the Affordable Care Act is far from perfect, Cortez Masto acknowledges she doesn’t want to see “Obamacare” scrapped. “I don’t support repealing the Affordable Care Act, which has given healthcare to millions of Americans and 400,000 Nevadans through the Silver State Healthcare Exchange and expanding Medicaid,” she says. “It has addressed the most egregious practices of the insurance companies when it comes to preexisting conditions, closing that doughnut hole for seniors, and ensuring that we are doing everything that we can to bring healthcare access to the most vulnerable in our society. That should continue.” Cortez Masto hopes to “repair” the Affordable Care Act, rather than repeal the legislation. “For me, it has always been, ‘Let’s keep what works in the Affordable Care Act and fix what does not.’ That is the starting point for me.” Democrats and progressives, especially, are likely the most eager to embrace some of Cortez Masto’s ideas on change. But her other causes, such as reducing student debt, could be supported by a broad base of Nevadans. Certainly, Cortez Masto seems eager to deliver on behalf of those who believed in her.
Another key point for Cortez Masto is making technical school educations a viable, available option again.
The chances of the success for Cortez Masto, and her longtime friend Silver, seem like a better bet than most in Vegas.
One of the first big political battles of this new Trump Administration has been over immigration. In February, President Trump issued an executive order
Valerie Miller is an award-winning journalist based in Las Vegas. She can be reached at valeriemusicmagic@yahoo.com
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Business Report 49 // STATE OF THE MARKET 53 // DEATH OF THE DEATH TAX 56 // AFFORDABLE LUXURY 58 // RAIDER NATION LOCATION 60 // VALUE OF OWNERSHIP 62 // SUPREME BEAUTY 64 // MONEY MATTERS
“Work Like There Is Someone Working Twenty-Four Hours A Day To Take It All Away From You.” –Mark Cuban
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State of The Market –By Mark Martiak
To jumpstart the new year, U.S. stocks began 2017 with an impressive run,
hitting record levels and accelerating past the 20,000 milestone for the Dow Jones Industrials in reaction to the Trump administration’s policies including deregulation, tax cuts and spending programs. Here’s a brief run down of what has occurred and what may be to come.
Record Highs and Lows All three major domestic equity indices have reached all-time highs despite concerns surrounding the uncertainty of President Trump’s policy
outcomes. Investors’ bullish appetites were sparked after President Trump announced that he would be releasing details on a “phenomenal” tax plan. Wall Street is hopeful the announcement marks a shift away from trade protectionism and security towards action on his pledged progrowth policies. Officials at Investor Intelligence recently reported that its survey index of bullish U.S. equity newsletter writers was at 62.7 percent, its highest level since December 2004. Raw materials producers saw the strongest gains in mid-February as the U.S. Dollar Index advanced eight days in a row, while energy producers followed closely after comments from Goldman Sachs energy analysts saying OPEC would succeed in
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STATE OF THE MARKET winding down a global oil supply glut. That news helped lift oil futures to nearly $54 per barrel. In key economic data in early February, the four-week average of new claims for unemployment benefits declined from 248,000 to 244,250, the lowest level since November 1973, while mortgage application activity rebounded 2.3 percent after falling 3.2 percent the week prior. Meanwhile, inventories at wholesalers are at the smallest levels in 2 years after the strongest surge in sales since March 2011. The increase in oil prices boosted overall import prices 0.4 percent last month, while export prices crept 0.1 percent higher. On a year-over-year basis, import and export prices have climbed by 3.7 percent and 2.3 percent, respectively. Lastly, the University of Michigan’s preliminary February reading of consumer confidence fell from a 13-year high. The Wall Street Journal commented that even when major benchmarks decline they still manage bullish superlatives.1 The S&P 500 inched down 0.1 percent February 22nd, but still extended to 91 straight days its streak without tumbling more than 1 percent, the longest such run since 2006. The benchmark hadn’t declined by even 0.25 percent in February. (You have to go back to 2014 to find a longer run.) Technology stocks in the S&P 500 logged gains for 15 consecutive sessions, a record dating back to at least 1990, according to The Wall Street Journal’s Market Data Group. The recent streak for tech stocks is longer than any during the dot-com bubble. Recall that tech stocks fell immediately after the election in part because of concerns that new immigration rules could disrupt Silicon Valley’s retention of engineers and programmers from foreign countries. Such worries seem to have abated.
Interest Rates, Reflation and Inflation The momentum in the stock market continues in the first quarter as concerns about higher U.S. interest rates and the French election continue to fade even as Wall Street strategists and Federal Reserve officials warned that investors are pricing in benefits of corporate tax cuts on profits when they do not yet know that this is certain. Blackrock still sees the driving force for the markets as reflation: moderately rising economic growth coupled with accelerating inflation driven by expectations of fiscal stimulus. According to Blackrock, the reflationary environment suggests both potential winners and losers. Among the winners: value equities, helped by gradual increases in interest rates and a steeper yield curve, and small caps, buttressed by higher growth and reduced regulation2. The potential losers include Treasuries and bond proxy equities like utilities. Market Conviction according to Morgan Stanley: long upside on the U.S. Equity market through options and hedge that underweight credit3. The Federal Reserve plans to raise interest rates “fairly soon” if the economy remains on track, according to minutes from recent policy meetings. During those meetings, the Federal Open Market Committee voted to leave its benchmark interest rate unchanged, just as markets had expected. The Fed had stated that it was waiting for more progress toward its target of 2 percent inflation, and even more evidence that the labor market is improving. The next rate hike is most likely to occur March 15th. According to Bloomberg, futures traders priced in a 38 percent
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chance of a rate increase at the March 14-15 meeting, and a 62.7 percent chance of one at the gathering in June after the minutes crossed (The market’s implied probability of a March hike soared to 82% from 40% at the end of February). The Fed has raised rates from zero twice since the end of the recession. Due to continuing risks to the economy including the uncertainty of policy outcomes from the Trump administration, the Fed is taking its time to slowly normalize rates. Inflation expectations have been inching upward lately. Trump’s expansionary fiscal policies and infrastructure spending plans have increased inflation expectations. Moreover, market participants are worried about the wage pressures that could start building, as the United States is already operating at near-full employment. A fiscal stimulus could lead to higher wages, which would, in turn, lead to broader price rises. It appears that the earnings recession for S&P 500 companies is now behind us, with negative effects from low energy prices abating. However, Wall Street is facing a new set of challenges, most notably of which is lowerthan-expected wage growth. Wage growth is not inherently a threat to corporate profits if sales can grow to compensate. Contrarily, in the absence of rising revenues, the increase in consumer incomes can erode corporate profitability, all else held equal. As jobless claims fall and unemployment hovers below 5 percent, it seems that a rise in wages is all but certain. But is this really the case? In addition, some investors question whether having republican majorities in both the house and the senate could precipitate small business (and M-business) capital expenditure (CapEx) spending. Moreover, “the shrinking of the balance sheet may start in the not too distant future,” says Neel Kashkari, the Minneapolis Fed president, in a recent statement. Federal Reserve Chair Janet Yellen was similarly vague during congressional testimony on Valentine’s Day, saying the Fed would gradually unwind its balance sheet when the process of normalizing rates is well underway5. Can the U.S stock market rally sustain itself beyond the near-term? Stay tuned. Mark Martiak is a contributor to Vegas Legal Magazine and a regular guest on CNBC’s Closing Bell, FOX BUSINESS and Yahoo! Finance. Martiak is an Investment Advisor Representative at Premier Wealth Advisors, LLC, a registered investment advisory firm in NYC. Follow Mark on Twitter @premieradvisor, on his blog at https://www.markmartiak.com and LinkedIn at https://www.linkedin. com/in/premieradvisor References 1. “This Rally Is Crazy But It’s Nuts To Sell,” The Wall Street Journal, Moneybeat,http:// blogs.wsj.com/moneybeat/2017/02/23/this-rally-is-crazy-but-its-nuts-to-sell/, (February 23, 2017). 2. “Making the most of Mardi Gras Markets,” ishares by Blackrock,https://www. blackrockblog.com/2017/02/22/mardi-gras-markets/, (February 22, 2017). 3. “Morgan Stanley’s Sheets says vague Trump helps markets,” Bloomberg TV, https://www.bloomberg.com/news/videos/2017-02-24/morgan-stanley-s-sheetssays-vague-trump-helps-markets (February 23, 2017) 4. “The Fed plans to raise rates ‘fairly soon’ if the economy cooperates,” Yahoo Finance,http://finance.yahoo.com/news/come-fed-minutes-183655309. html (February 23, 1017) 5. “Fed minutes, February 2017 meeting,” XFOOR,http://news.xfoor. com/2017/02/22/fed-minutes-february-2017-meeting/ (February 22, 2017) Securities offered through First Allied Securities, Inc. Member FINRA / SIPC. Advisory services offered through: Premier Wealth Advisors, LLC (PWA) & First Allied Advisory Services, Inc. (FAAS). PWA & FAS are not related entities. Form ADV part II is available upon request. Links are being provided for information purposes only. Premier Wealth Advisors, LLC. is not affiliated with and does not endorse, authorize or sponsor any of the listed websites or their respective sponsors. Premier Wealth Advisors is not responsible for the content of any website or the collection or use of information regarding website’s users and/or members.
DEATH
OF THE DEATH TAX? – By Donovan Thiessen, CPA
Chances are good that you were one of the 137 million taxpayers who filed an individual income tax return in 2015. In the same year, 11,917 estate tax returns were filed. Sometimes referred to as the “death tax,” this type of tax return is associated with wealthy individuals. By the end of this article (and regardless of your income level) everyone who reads it will understand more about the estate tax, who it affects, and issues with its currently proposed repeal (more on that below). What Is Estate Tax? The federal estate tax is a tax on the transfer of assets and property at one’s death. It is applied to decedents with gross estates in excess of $5.49 million for individuals, and $10.98 million for married taxpayers (those are the “Estate Tax Exclusions” for 2017). The asset composition of estates is typically a mix of stocks, real estate, bonds, small businesses, cash, pensions, and other retirement accounts. In 2015, stocks and real estate comprised over half of all asset holdings for estate tax return filers. Deductions from the gross estate are allowed and include funeral expenses, certain charitable contributions, administrative expenses, as well as others. The due date of the estate tax (IRS Form 706) is 9 months from the date of a person’s death. A 6-month extension to file is available if you are unable to file by the ninth month. The modern estate tax began in 1916, and has had a history of repeals. In 2001, the tax was repealed and the result was a phase out of rates until 2010, when the tax was temporarily eliminated. The tax was re-enacted in 2011 and 2012, with a 35 percent rate on estates exceeding $5 million. It was expected to return to the 2001 rates in 2013, but Congress placed a permanent 40 percent tax on estates exceeding $5 million, with the threshold indexed to inflation. Historically, estate tax has been a hot political topic, and in recent presidential campaigns, Democrats pushed to increase revenue from estate taxes while Republicans promised to repeal it. In January 2017, House and Senate Republicans introduced two bills—H.R. 631, 115th Cong., 1st Sess. (Jan. 24, 2017) and S. 205, 115th Cong., 1st Sess. (Jan. 24, 2017)—to repeal the estate tax. What Is The Controversy? The 11,917 estate tax returns filed in 2015 produced tax revenue of $17 bil-
lion…less than 0.6 percent of the total federal revenues that year. (To put that in perspective, the government brought in approximately $3.2 trillion in total revenue.) With individual income taxes representing $1.4 trillion, and payroll taxes accounting for $969 billion, why is so much attention given to such a sliver of proportional tax revenue? Proponents claim that the tax limits the concentration of wealth among dynastic families. According to PolitiFact, in 2011, the 400 wealthiest Americans had more wealth than half of all Americans combined. Since inherited wealth may be a factor in why many Americans who became wealthy have had a better start than the average person, income and wealth inequality in our country (they say) is a reason to continue implementing the estate tax. In addition, if the estate tax is repealed, the lost tax revenue may have to be absorbed by less wealthy taxpayers. Alternatively, critics argue that it is a type of “double tax,” and that the assets an individual has accumulated in his or her lifetime have already been taxed in annual income tax returns. Critics further argue that the tax goes against U.S. free market principles: We live in a free country where people build businesses from nothing, yet when people pass the fruits of their labors to their heirs, the money gets hit with another hefty tax. Estate Tax Today During his presidential campaign, Donald Trump strongly advocated a repeal of the estate tax, and has proposed taxing pre-death appreciation in the capital assets of estates (subject to a $10 million exemption per married couple). It would mean that the person who inherited the asset would not get a step-up in basis to the fair market value at the date of death (which is what currently happens). Instead, the assets would transfer with the decedent’s original basis, and when the assets were later sold—whether on day one or 1,000—the beneficiary would pay a capital gains tax. Long-term capital gains tax currently ranges from 15-20 percent (which is much better than the current estate tax rate of 40 percent). The problem, though, is determining what the decedent’s original cost basis is. Under the existing rules, stocks, real estate and interest in a business are all determined using current market values that are not difficult to ascertain. However, original basis in assets may be difficult or impossible to attain, resulting in possibly no-cost basis or low-cost basis, and thus higher capital gains.
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Another challenge? Necessary tax planning would be automatically shifted to the beneficiary. In the case of an heir not having income or assets that can be used to satisfy a capital gains tax, whether or not the inherited assets would continue to receive a step-up in basis at the date of death would be a major point to consider as we watch the proposed repeal unfold. The Future Of The Death Tax Since the federal estate tax has a history of repeal followed by re-enactment, it is prudent to continue estate planning, or begin it from scratch. There are a number of tools that estate-planning attorneys employ to prepare for and mitigate the estate tax. One such method called “portability” is a tax election that is available to an estate’s executor. Portability was created with the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, and it authorizes the executor to transfer any unused estate tax exclusion amount to the surviving spouse. The surviving spouse may apply this transferred exclusion against his or her estate tax liability. However, a situation may arise where the first spouse to die does not have an estate tax liability (e.g., if their gross estate is $2 million and consists mostly of publicly traded stock) and thus does not meet the filing requirement. If the decedent has $5.49 million - $2 million = $3.49 million in unused estate tax exclusion, that can be passed to the surviving spouse. Furthermore, suppose the surviving spouse lives another 20 years and the same stock grows to $15 million in value by the time of his or her death? The latter spouse could then use his or her exemption plus the $3.49 million. (Note: That could only be completed by making the portability exemption election by filing IRS Form 706 and completing part 6.) The point
DEATH TAX is, even if you think you may not be required to file a Form 706 estate tax return, and even if the tax is repealed, you may in a position where some inquiry and planning may be beneficial to you and your family. Making Your Estate Plans Accordingly Many people wait until it is impracticable to estate plan, and unknowingly place a burden on the heirs, family, and sometimes employees of a company…providing no roadmap of how to navigate without the decedent. (Recall what happened to Prince last year when he unexpectedly died and left behind an estate worth between $100-$300 million, with no estate plan… not even a will.) Although Prince’s situation involved unusually massive wealth, it should be a cautionary tale for those who have yet to make a plan, or who feel that it is not necessary due to the promise of estate tax repeal by our new president. Donovan Thiessen, CPA has worked with Gerety & Associates, CPAs in Las Vegas, Nev. for 9 years, focusing on trust and estate, and individual and business income taxation. The firm has substantial experience in estate planning and has the ability to handle complex transactions. You may reach Donovan at dthiessen@geretycpa. com. and 702.933.2213.
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Affordable Luxury –By Rick Nelson
“Affordable luxury” might sound like an oxymoron but when it comes to the all-new class-leading Jaguar XE, fantasy becomes reality. That’s because once you realize that at $34,900 it’s priced less than a high-end Asian import, all of a sudden “affordable luxury” seems much more attainable.
time, giving you up to 42 miles per gallon on the highway while driving like a dream. This well-equipped sedan is also perfect for activities of all seasons with its available all-wheel drive system that will take you anywhere, anytime.
Satisfying on more levels than just price, the distinctive Jaguar XE is not only luxurious, but does double duty by performing like a sports car and a green vehicle at the same
Versatile. Responsible. Dependable. Affordable. Beautiful. See how you can obtain your Jaguar XE at Jaguar Las Vegas, located on 5255 West Sahara Ave.
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STATUS OF RAIDER NATION RELOCATION – By Sabrina S. Siracusa With football season over, fans have shifted their attention to the
ongoing saga of the potential move of the National Football League’s Raiders from Oakland to Las Vegas. In the last issue of Vegas Legal Magazine, we discussed the likelihood of Las Vegas becoming part of the NFL franchise. Everything seemed hopeful; but as with any change, chaos is almost always certain before acceptance. Since then, the ball has been rolling, although not in a direct path toward its goal. Here’s what Raiders Nation and the city of Las Vegas thinks about one of the most exciting and challenging relocations of a NFL team. Bail Out from Big Investors Anyone following the Raiders Nation relocation knows that major investors Sheldon Adelson and Goldman Sachs are out…but all is not lost. Vegas kingpin Adelson did provide vital political influence that dramatically helped the Raiders secure the world’s largest stadium public subsidy ($750 million); and since then, Raiders president Marc Badain told the authority board in February that the team was already in discussions with “multiple financial institutions” that are willing to fill the void left by Adelson’s departure. Will The Bay Area Put Its Money Where Its Mouth Is? The reality is that Alameda County politicians have shown no inclination to build the Raiders a new stadium, even after years of discussions. When the Raiders recently filed for permission to move to Las Vegas, in a statement that came close to puffery, Oakland Mayor Libby Schaff told the Sports Business Journal, “Oakland has something no other city ever will: a die-hard fan base that is loyal and true to the Raiders and wants to see them stay here in Oakland where they were founded. Only Oakland brings the Raiders and the NFL a competitive stadium proposal, along with legacy and loyalty.” In the same interview, Schaff stated that the Oakland City Council had accomplished so much by identifying the mechanisms to responsibly finance public infrastructure improvements, including a private partner prepared to finance a new stadium. It is very unlikely that Mark Davis will
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allow this competition to occur, and the mayor more than likely knows this. Perhaps Oakland needs to create the impression that it did all it could to keep the Raiders, even if there is no way it will ever be able to do enough. At this point the Bay Area needs a Hail Mary to keep the Raiders in Oakland. Vegas Mayor Supports the Raiders Relocation Las Vegas Mayor Carolyn Goodman thinks the money will show. In a recent LA Times article, Mayor Goodman noted that the timing is right to bring an NFL team to the market, and stated that she let the Raiders know the city was doing everything in its power to help salvage the deal. She also told the LA Times that she would like a stadium built Downtown, and that she has received calls from several groups interested in helping finance the project. “If there’s a team out there that wants to relocate and this one doesn’t work out, we’re ready,” said Goodman in the article. “In my opinion, it will happen.” What’s Next? Much like any good football game, the players and strategy are important to the outcome. The Raiders owner is highly motivated to move the team to Las Vegas and football fans in Las Vegas are open to the Raiders relocation. Some gripe that it will cause more traffic congestion, but Vegas has been through much worse. After all, Vegas is a city that has seen it all, from mobster-ruled casinos to the legalization of recreational marijuana. Sin City can handle anything that comes its way. NFL owners will meet in March to vote on the Raiders relocation plan. Oakland will need 25 of the owners’ 32 votes to see their plan officially approved by the NFL. Sabrina Siracusa is Las Vegas-based freelance copywriter. With an undergraduate degree in Psychology and an ABA Paralegal Certificate, Siracusa is currently the publications specialist for the State Bar of Nevada. Learn more about Siracusa and her work at www.writergirl.biz.
The Value In Owning Your Office –By Mark Fierro
If you own your practice, there are few things that will impact your future net worth more than owning your office.
Think about it. In the next few years, you could own sizable equity in your office. In 15 years, you could own it outright — or you could be the proud owner of a big stack of rent receipts. The good news is that, with a little bit of preparation, the process of buying an office is easier than ever. The hurdles — finding the right office to call home and qualifying for what very well may be one of the more significant transactions a business may ever undertake, it can be made easier when you know who to turn to. There is a growing trend across the country in which buyers turn Vegas Legal Magazine Spring 2017 | Pg. 60
to Real Estate brokers who not only guide the buyer through the transaction to closing, but also help in arranging tenant improvements. That serves a critical need when the inventory available needs major renovation to fit the client’s needs. Dan Coletti of Sun West Custom Homes is one of Nevada’s most respected builders. His long history of building includes not only iconic multimillion-dollar hillside homes but also a significant amount of commercial construction. “There are a lot of very attractive buildings downtown if you have an eye for the possibil-ities,” Coletti said. “We see some interiors gutted and reworked, and these buildings are perfectly suited to attorneys’ business needs. With the right eye for design and construction details there really are opportunities an owner can really
VALUE OF OWNERSHIP
“We can get the customer in, ask a pretty short list of questions [...] and give you a pretty good idea whether the SBA’s 504 program is a good fit for you ...” –Evan Dickson be proud of.” (Point of disclosure: Mark Fierro, the author of this column, is an agent with a related company, Sun West Luxury Realty LLC.) There is good news on the loan side as well. The Small Business Administration offers a loan, the SBA’s 504 program, which allows the owner to wrap all the tenant improvements and building rehab right into the loan. A generation ago Small Business Administration Loans had a reputation for not being user friendly, but those transactions have been made far simpler with help from Nevada State Development Corporation, which specializes in SBA 504 loans for business owners seeking to buy property or equipment. “These loans typically feature below-market rates. In the first quarter of 2017 we are in the mid-4 percent range, and that’s with 10 percent down,” said Evan Dickson, Senior Vice President/Senior Credit Officer with Nevada State Development Corporation. “We can get the customer in, ask a pretty short list of questions regarding your business and its performance over the past couple of years, and give you a pretty good idea whether the SBA’s 504 program is a good fit for you and if it looks like you’ll have a chance to qualify.” Taking advantage of the opportunity to own their own headquarters can represent a pivotal point in the career of many entrepreneurs, according to Dickson. It’s something he sees time and time again working with Nevada State Development Corporation. “That’s what we do,” Dickson said. “The basis for our program is about job creation and economic development, and one of the results is the fact that it lets businesses purchase property with as little as 10 percent down, which can allow the business and its owners to start accumulating wealth by taking ownership of a building.
We can wrap tenant improvements into the package, subject to a satisfactory appraisal” It’s a road that the Editor of this magazine, Vegas Legal Magazine, used to great effect in buying and completely renovating his offices at 630 South 3rd Street in downtown Las Vegas. NSDC’s Paola Gonzalez worked with Preston Rezaee, Esq., principal of The Firm, P.C., and Editor in Chief of Vegas Legal Magazine to make his renovations and the purchase of his new office in downtown Las Vegas a success. “NSDC is a company that’s very vested in investing in the business future of this com-munity,” Rezaee said. “The level of personal attention that I received was unexpected, so definitely go.” Chris Hunter, who serves as vice president and business development officer with NSDC, pointed out that many business owners — whether in the legal realm or any other field — may be experts in their own line of work but unfamiliar with the nuances of financing a building purchase. “We walk them through every step of the process, laying out the financials up front to make it as easy as possible,” Hunter said. “We explain it in terms they understand. My job is to make life easy for them.” About Fierro Communications, Inc. Fierro Communications, Inc., is a full-service public relations and marketing firm with video production assets and a wealth of media contacts in Southern Nevada and throughout the United States. Mr. Fierro is an author of two books and has appeared on national news broadcasts including CNN, “Entertainment Tonight” and ABC’s “20/20.” Initial consultations for litigation support are always free of charge.
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Supreme BEAUTY
The classic look of nevada’s highest court in today’s contemporary times –By Elena Castriota
Building an 1800s-style building in the 21
st century with traditional materials would be an impossible task for many large-scale developers, but not for Yohan Lowie. The Israeli-born architect moved to the United States in 1986 and has been a permanent fixture in Las Vegas since the early ‘90s, and as the CEO and founder of EHB Companies—along with co-founders Paul and Vickie DeHart—EHB’s group of real estate development and building companies are responsible for erecting landscape-changing Las Vegas properties such as One Queensridge Place, Tivoli Village and the Sahara Center.
EHB’s newest fete—the Nevada Supreme and Appellate Court Building, located on the corner of Clark and Fourth Streets in Las Vegas—was completed in late 2016, a daresay stone’s throw more than a year after breaking ground. The structure, described by Lowie as the pinnacle of his career, features EHB Company’s signature stone façade and a thoughtful dedication to the state of Nevada, to Washington, D.C., and to neoclassical architecture itself. Lowie and company travelled to Europe and elsewhere around the world to find the traditional materials used throughout history when constructing these grand buildings during centuries of yore. Inspired details include a bronze, handmade sculpture of Lady Justice; stained-glass skylights reminiscent of the Library of Congress; and custom-built chandeliers. Incredibly, while designed and developed as a 19th century structure, the building has achieved the Leadership in Energy and Environmental Design gold standard here in the 21st century…making Lowie’s courthouse a perfect metaphor for the balancing of past and present that Lady Liberty knows all too well. Vegas Legal Magazine: Anyone familiar with your work knows you as an architect and developer, but what is something most people don’t know about you? Yohan Lowie: Most people think I’m a great architect, but in fact, I have no formal training in architecture, drafting or manufacturing. All the skills I have gained are from on-the-job training, and are G-d’s gift. As a young man, I was always fascinated with buildings and structures, especially
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the old ones—centuries- or thousand-year-old stone buildings—and I always imagined, “What are they for? Who designed and built them? Who occupied them, and how is it possible that they have lasted for such a long time and probably will for centuries more after we are all gone?” I came to Las Vegas in the early ‘90s to build one simple, small house, to learn “how to” [do it]. Since then I’ve found myself in the building trade ever since. In the mid ‘90s I met Paul and Vickie DeHart and we formed development and construction companies together, which in later years became known as “EHB Companies.” In the beginning, Vickie ran our office, Paul ran the site and construction, and I managed the development and business aspects. In 1998, we built our first house that was covered with quarried stone. Ever since, every structure we have erected has significant natural stone content. VLM: What inspired your design of the Nevada Supreme and Appellate Court Building and what do you hope people will take away from it when the see and experience it? YL: In the first design run (in late spring of 2015), the idea of the court space was [to place it] atop an 18-story high-rise building, occupying the top two floors. I had designed the space and presented it to the court, but after a few revisions, I changed direction. I understood that this unique opportunity of designing the Supreme Court building is a once-in-alifetime opportunity and must have a special, very special presentation to the public, both as an iconic landmark and as the highest office in our state. So I had made up my mind to build a neoclassical building that would encapsulate the permanence, power and graciousness of the law and the institution. On July 4, 2015, I had the opportunity to visit our nation’s capital, Washington, D.C. My son, who works at one of the highest offices there, was able to take me to places the public can’t usually visit and see in the most important buildings. That trip solidified for me the exterior material selections for our building, and the interior theme. I concluded that we must use the white stone that
covers most of our nation’s monuments; the stained leaded glass ceiling design from the Library of Congress rotunda; and the bronze and alabaster chandeliers from the Library of Congress’s main hall. Wood type and color selection would come from the original 19th century Supreme Court that is located in the basement of the Library of Congress building. And all other details would be reminiscent of the period of construction that our capital institution’s buildings and monuments were built. VLM: Talk about the collaborative effort between your company, the Supreme Court, and Nevada’s government, in the vision, design and development of this building. There was much you had to balance…. YL: The involvement from the court was primarily with Chief Justice James Hardesty, who was appointed by the court and legislatures to solely negotiate the contract and oversee the design and the construction of the project. In fact, the hours we spent together understanding the needs of the court justices, appeal court judges, court staff, security, and public, inspired me to come up with the interior floor plan. For that, I had to imagine myself walking and using the building as if I was one of its occupants, and how it would be best designed to answer their needs. Many aspects of the building, like the rotunda—a public space for gatherings, and for court events on a grand, 19th century scale—were as result of this exercise. I can safely say that without Chief Justice James Hardesty’s involvement on the business level, and with his direction on the design and his problem solving abilities, this building would not have been built…or built to the shape, form and standards of this finished product. VLM: Talk about your process a little. Are there special considerations you take into account when designing and building a public building as opposed to private development? YL: Generally, with designing the architecture of a public building, your most important focus is the business interaction between the public and the officials. Choice of location, accessibility, traffic flow, building circulation, security, and public safety are also factors. In this building, however, many more parameters had to be considered, such as how to tie the structural design to the building’s use, and how to connect it to our country and state in a way that would honor both. We created multiple connective ties…for example, by carving, in stone, the 50 stars representing the states of the union at the top of the gable… just beneath our national and state flags. We also created an eave detail that was carved into the marble and incorporated all 17 Nevada county seals; the Supreme Court seal; the State of Nevada seal. We also included the American wreath, made out of the American oak tree (which signifies permanence) and the olive branch (which signifies peace). All of that aligned in a sequential presentation of public belonging, along with a graceful, 14-foot bronze Lady Justice statue, with her Scale of Justice in one hand and her drawn sword in the other, ready to strike at injustice. Our Lady Justice was not as passive as the original mythological figure (… passive, in that she was blind, and kind to all). Our Lady Justice is the active embodiment that injustice must be struck down. Also, we incorporated bronze doors to the entry of the building reminiscent of the U.S Supreme Court entry door, with the addition of our state Supreme Court seal carved into it.
VLM: In recent years, focus has shifted largely to sustainability and energy efficiency in terms of design and construction. How do you adapt to changes in those areas as you work on new projects, and how did you achieve modernity with a 19th century style courthouse featuring traditional materials? YL: It is amazing that even while adhering to traditional methods of construction, we were able to build a contemporary masonry super structure—with modern VRF HVAC systems, natural stone cladding, and solid wood finishing—and that we easily achieved LEED Silver classification. In fact, with this building, we aimed toward and achieved LEED Gold standard. VLM: It’s a general impression of the public that many architects design a building and then leave it to the contractors to finish. As the CEO and principal architect of your firm, do you prefer to see your designs all the way through? YL: My building philosophy is that once you set up the business parameters and the objective of a project, it’s time to focus on how to build the best building you know how to build. Every building that EHB Companies builds becomes better than the one it preceded. In “master building”—from choice of location, to architecture inception, to the last detail installed—one has to be involved in every aspect to achieve this goal. VLM: What about this Supreme Court project makes you the most proud? YL: The proudest achievement is in the human spirit that was displayed during the building process, by so many people. Our team worked so hard to achieve this dream. This project was delivered in fewer than 14 months, from the time we put our first shovel in the ground. In that time, we had to get so many departments, people and manufacturers around the world to work in sync to make the schedule. Our executive team of financing and relation managers; our manufacturing manager; our contractors, employees, stone quarries and material suppliers; stone machining and carving shops, bronze foundries, wood carving shops, fine furniture carpenters, staff architects, and so many talented artists—including stone installers, staff carpenters and painters and others who were so dedicated to this project as if it was their own—took part in history making that made this all possible. It does not happen every day that ordinary people do such an extraordinary job. This is Paul’s, Vickie’s and my proudest moment, as well as for so many others in our company. VLM: Do you have a quote or saying that you live by? Something that inspires you? YL: To me, stone is alive. It’s not dead to me, like it is to most people. It’s not just an object. Stone talks to you: the veins, the heart, the shell…it tells a story. So for me, what I believe in is this: “Only the stones live forever.” Elena Castriota is a Boston-based freelance writer and social media marketer whose work has appeared in The Fenway Times and The Putnam Examiner, and will appear in DLXVRSN Magazine this spring. She can be reached at ercastriota@gmail. com.
Vegas Legal Magazine Spring 2017 | Pg. 63
Disability FactsThat Might SurpriseYou In times like these, good decisions matter. And when it comes to protecting a portion of your income from disability risks, it’s important to base your decision on the facts. In the case of disability, some of those facts might surprise you.
For example, more than one-quarter of today’s 20 year olds will become disabled before they retire.1 And if you are covered by a group disability income policy through your employer, you might not know about the likely gap between your policy’s benefits and your family’s actual needs. To start with, the typical group plan only covers 50-70 percent of income. And benefits are often taxable; have maximum limits; and don’t cover bonuses, commissions or 401(k) contributions. In some cases, worker’s compensation helps bridge the gap, but less than 5 percent of disabling accidents and illnesses are work related. 2
take it with you throughout your career.) And the best way to make a good decision about that policy is to work with a trusted, trained financial professional.
If you run a business, your insurance protection should help cover its operating costs, possibly provide the funds for a partnership buyout, and protect a portion of lost earnings–either yours or your employees’.
1
The most common way to reduce the gap between existing coverage and actual needs is to obtain a supplemental individual disability income insurance policy. (Because you own it, you can
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No surprise there. Social Security Administration, Fact Sheet April 2, 2014 Council for Disability Awareness, Long-Term Disability Claims Review, 2014 http://www.disabilitycanhappen.org/research/CDA_LTD_Claims_Survey_2014. asp 2
Disability income insurance products issued by Massachusetts Mutual Life Insurance Company, Springfield, Mass. 01111-0001. These policies have exclusions and limitations. For costs and complete details of coverage, please call Kyle Lum at 702.856.2341. CRN201609-186444
Las Vegas Icons
Rich MacDonald – By Charlotte Evans
When
you ride with Rich MacDonald in his luxury SUV, it’s easy to forget for a moment that you’re traveling with an OG-level developer—an “original gangster” in Nevada real estate who has brought many in local government and business to their knees. His casual attire, cheerful attitude and down-to-earth way of relating are enough to relieve anyone of social awkwardness while winding through some of the most breathtaking (and coveted) acreage in southern Nevada. It’s only when you ask him details about the street you’re on that things get a bit weird. That’s because…you’re winding up a jaw-droppingly beautiful hillside street that Rich MacDonald personally named, while passing many other opulent streets he also named…streets that traverse graceful neighborhoods he named, that are nestled against some mountain ridges he named…inside a Vegas Legal Magazine Spring 2017 | Pg.66
sprawling, gated community (which, yes, he named) overlooking the Las Vegas Valley where his career can be seen in a vast patchwork of celebrated developments…developments he also named and/or built. (See the pattern?) MacDonald’s motto is, “No matter what happens, fight on,” and he credits his prolific, decades-long career to that fighting spirt. For this profile, MacDonald and I first met at the restaurant in the club that he recently brought back and improved with stunning upgrades throughout. Our purpose: to discuss the future of DragonRidge Country Club and Golf Course—which he repurchased about a year ago with the intention of upgrading to their fullest glory—and his preparations to build a new round of cliffside castles, the likes of which have never been seen. And I mean that quite literally: Models are shrouded in secrecy to prevent any
disruption in current new home sales, which are very strong.
always got three out of five votes from council.
Vegas Legal Magazine: Henderson is recognized as one of the best communities to live in, anywhere in the country. To what extent are you willing to take some credit for that, given your history as a developer in Henderson?
VLM: How many hours of your life would you guess you have spent at Henderson city council meetings?
Rich MacDonald: Let’s put it this way…. I’ve owned about five percent of the city’s available land, so from that perspective we’ve planned and accomplished a lot with these planned communities and I’m really proud of all of them, actually. Henderson benefitted from having large land masses. That lent itself to investor-planned development, which is why Henderson is as nice as it is today. VLM: Do you give kudos to early city planners? RM: Yes. The early city fathers somehow arranged to get big chunks of land from the government and get them into private hands. The reality is I’ve had a very contentious history with people like that at the city [level]. One in particular [comes to mind.] I think the planners, once they found out what we were doing, really liked it and said that we offer the best example of how to do hillside development…which we perfected doing cliffside development in Hawaii. The bottom line is we outlasted [the detractors], and we
RM: City council meetings? Every single one, for at least 20 years. It’s funny: The whole process—when you look back on it—it’s been really, really rewarding. Everything we’ve been through. One of the benefits to that now is that nothing bothers me. I don’t get upset about anything, because I know I can deal with whatever comes up. I’ve been through it all. If it’s a legal issue, we’ll take care of it. If it’s a development issue we’ll take care of it. VLM: What was it like early on, getting this going? RM: Stephanie Road didn’t exist south of the 215. As a matter of fact, I put Stephanie Road in on a weekend (chuckles), without a permit I might add. I just hired a guy with a blade and a bulldozer and pushed it through. VLM: Did anyone complain? RM: Yeah. One guy called me up and said, ‘Hey: Somebody put a road through my property.’ I said, ‘Oh, is that the graded road that
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RICH MACDONALD came down to 146? That would make it a section line, wouldn’t it? That could give you commercial potential I guess, huh?’ He said, ‘Yeah.’ I said. ‘Yeah, I guess it will. Gee, that was pretty good, then?’ (momentary pause) He said, ‘Yeah, I guess that is good.’ (laughs) VLM: How would you characterize the real estate market here right now? RM: I see a renewal of activity, which is really exciting. Of course, I see mostly what’s going on here [at DragonRidge] and we are getting a lot of people moving in from out of state. A lot of them are what you might call tax refugees. We are thinking of sending a gift to [California] Governor Jerry Brown because he’s really earned it! (laughter) This community is getting to be really well liked and well known. The challenge is, we don’t have a lot of people who want to sell their [existing] houses and we have a lot of people coming in from California. We have people building “spec” houses. They’re really good houses. We’ve even had some sell right from the plans. With the new visuals, you can actually walk through the house [that has yet to be built] on a computer. VLM: Looking around this outdoor cathedral that is now called DragonRidge, what dazzles you most?
RM: The ambiance. There’s something about it. When I first hiked up to this place back in 1976 [before it was developed] I was blown away by it! [Later after we bought it] we had a Feng Shui master who advises major strip hotels come [to check out the property] and the first thing he told us was, ‘You don’t have one dragon [on the ridge tops] you have three!’ And, he said, ‘You have a vortex on your property! If you draw a line from Red Rock Canyon and from Valley of Fire they meet right here on the property and this vortex is the energy center for the entire Las Vegas Valley.’ We put up a little platform [at the vortex.] If someone wants to hike up there and meditate they can do that. VLM: Over the next several years you plan to sell some 200 lots. Are you prepared for whatever issues might come up in the economy? RM: There are a lot of issues on the horizon…global and national issues. With Trump elected I see positivity. It’s refreshing to see government now moving through things like a business [would]. On a personal level, I have no debt in this company at all, and I have no personal debt. I’ve structured things so that if the world
VEGAS ICONS goes to hell in a hand basket, I’m probably going to be sitting under a palm tree in Hawaii. VLM: Your wife, Claire, has been your wingman through all this, and at some point she even considered running for city council in support of your plan. She sounds like a force to be reckoned with. RM: Oh, she’s a character. All the women in my family are like that. I had a grandmother who lived to be 96. My mother lived to be 92, and Claire is every bit as tough as they are. When I met Claire, she was a single mom with two little kids who had relocated to Hawaii after her divorce and she had her own business. I thought, ‘Well, this is a little different.’ There was a mutual respect there. Not just the normal window dressing. It’s worked out. VLM: Who gave you the best advice to help you succeed? RM: My father said, ‘The only time they can beat you is if you quit. You just keep going. We don’t quit. We get things done, fast.’ That was probably the best advice he ever gave me. I couldn’t sell like he did. I was a fairly decent salesperson, but not like him. VLM: Do you have bucket list? RM: I have a little project I’m working on. I did an endowment with the Archaeological Institute of America where I gave them the biggest endowment they’ve ever had. That surprised me, because it wasn’t that huge. I want to buy the property under the city of Troy in Turkey and keep it in a historical trust so that future generations can come in and do archaeological digs. It’s available for that. That’s a good thing, because right now a lot of it is in private hands and there are two concerns with Troy. There’s the Citadel, which is the fort everyone thought of as the original city, and there is a huge lowland city that was underneath where people lived down below. In times of siege, the people would all run up to the citadel but they lived down below. I’ve got a 501(c)(3) I’m going to use to do that. VLM: People say, with your contacts in Hawaii, wouldn’t you rather live there? RM: The answer is no. Like this club, I like the people in the club. I like the community. It’s almost like extended family. [This is] a nice place to be. VLM: What is the most common question you get from folks here? RM: I am often asked, ‘Did you really envision it this way?’…The answer is ‘yes.’
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Vegas Legal Magazine Spring 2017 | Pg. 71
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Vegas Legal Magazine Spring 2017 | Pg. 73
Meet Steve. Steve used to manage his practice and planned his retirement on his own. Then Steve started working with Ideal Business Partners. Now he sees patients three days a week, instead of five. Now he has a clear plan to financial security beyond his practice. Steve is smart. Be like Steve. Be Ideal.
You specialize—so do we
Dr. Steven Kozmary operated the Kozmary Pain Management Center for 20 years before he began to work with Ideal Business Partners in 2015. What was a successful practice has become a thriving business, thanks to IBP’s experience in healthcare transactions including capital events, investment analysis and management, and lawbased risk mitigation. IBP helped Dr. Kozmary identify and groom a second to take over his business; he stopped worrying about changing regulations thanks to IBP’s regulatory compliance program; and now he can focus on spending his time on the most profitable segments of his business—not just putting out fires. That’s transforming your healthcare business through financial analysis and legal guidance to form an overall strategy. That’s smart. That’s Ideal.
Law | Finance | Strategy IdealBusinessPartners.com
THE PREMIER GALLERY OF FINE ART IN LAS VEGAS
Robert Deyber, Two Pear VII, acrylic on canvas, 48 x 48 inches
Warhol, Picasso, Chagall, Dalí, Miró, Erté, Murakami, Lichtenstein
Martin•Lawrence Galleries The Forum Shops at Caesars Palace
Celebrating Years of Fine Art • V E GForty A S @ M A R T I N L AW R E N C E .C O M • ( 702) 9 9 1- 59 9 0
M A R T I N L AW R E N C E .C O M
THE HEART OF THE ARTS. ®
In the heart of our city, there’s a place that’s celebrated around the world. It’s our city’s heart of beauty and creativity. It’s the heart of learning and inspiration. The heart of magic. And it was built just for you. Experience it and let your life be changed in brilliant new ways.
TheSmithCenter.com 361 Symphony Park Avenue, Las Vegas, NV 89106 | 702.749.2000 | TTY: 800.326.6868 or dial 711
The Production From The Smith Center
The Hidden Beauty Of Live Performance: Let Us Help You Let Go. – By Myron Martin
Imight n this installment, I’d love to talk about you…and how a great show just move you, if you let it. While I never expect it, every once in a while, a great show moves me so much that it shakes me to my core. Really. Live theater can wake up your emotions and cause you to experience wonderful things. It can take you back to childhood; remind you of special family memories; and elicit feelings of fear, longing, desire, grief, romance, happiness, and even love. Certain songs still take me back to high school. What about you? The Smith Center presents a number of highly evocative shows. The beauty of art is that it causes you to think, it makes you feel otherwise deeply guarded feelings, and it can allow you to laugh, to cry and to experience the beauty of the human condition. The magic of live performance is that you are there in the room with the actors experiencing their characters firsthand. Sometimes their story is one that particularly resonates with you, and sometimes you simply find a way to relate to them in a personal way. I hope that the next time you come to The Smith Center, you will get there a little early, have a refreshment, use the restroom before the show, relax, turn off all of your technology, and truly give yourself up to the experience. Imagine what might happen if you totally tune in. I’m a grown man who doesn’t hold back when a show moves me. I laugh, I cry and I don’t apologize for it. Giving yourself to a show may require a little more of your attention, but you may find that payoff is well worth the investment. Where else but live theater can this happen? Will it always happen? No way. Like the line from A Chorus Line, sometimes I feel nothing. Sometimes I can’t relate. But, wow, when it does happen, it’s amazing. This also means that you, and those around you, must abide by the rules of theater etiquette. I admit that Las Vegas audiences still have a way to go, but we’re getting there. Steve Sebelius wrote an article for the Las Vegas Review-Journal that kindly started with, “Welcome to the theater, now shut up!” He had a point. This isn’t your den, and this isn’t Netflix. Please arrive on time and do your best not to talk or otherwise disturb your neighbors— especially in a theatrical production with deep dramatic tension. And do a little homework. Take a look at what you are coming to see and decide if you think it is appropriate for your kids. Sebelius wrote the following about music performances: “Shut up: Seriously, this is basic. While somebody who has spent their life practicing the performance of music is on the stage, please be quiet. Don’t talk. Don’t yell, whistle or shout your approval. Don’t rustle your feed-bag. Don’t cough, if you can at all help it. Just listen and appreciate. And then, at
the end of the song (not near the end, but after the song is over) signal your approval with applause. Eat before you go: There are many fine restaurants in the downtown area at which you can eat before seeing a concert. Avail yourself of one of them, or eat at home. Then, come to the theater and practice a little abstinence. Yes, they do sell concessions at the theater and yes, they come in noisy little packages and yes, that’s inviting trouble. But just because they’re for sale doesn’t mean you have to bring them into the theater. A beverage (to sip silently) is fine. Anything else, wait for the end. Shut up: Really, I can’t stress this one enough. Remain seated and keep your hands and arms inside the train: If you must leave to use the rest room or take a phone call, please wait until a song or composition is complete, and the audience applause can cover your exit. The acoustics of the Smith Center are excellent… Shut up: If you remember nothing else, remember this. Seriously.” The Smith Center was built for the people of Las Vegas, and its ongoing mission is to inspire people through the grand gift of live performance. Take advantage of it. Bring a friend. And maybe, just maybe, the magic will happen and your life—at least in that moment—will be enhanced in a brilliant new way.
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Andy Warhol, Marilyn #31, 1967, hand-signed screenprint, 36 x 36 inches
THE PREMIER GALLERY OF FINE ART IN LAS VEGAS Warhol, Picasso, Chagall, Dalí, Miró, Erté, Murakami, Lichtenstein
Martin•Lawrence Galleries The Forum Shops at Caesars Palace
Celebrating Years of Fine Art • V E GForty A S @ M A R T I N L AW R E N C E .C O M • ( 702) 9 9 1- 59 9 0
M A R T I N L AW R E N C E .C O M
Andiamo Steakhouse Brings Old Vegas Class Back – By Tara Woodall
Not many spots in Vegas represent old school Vegas. It’s a lost
art, really. Sure, there are amazing venues Downtown like Atomic Liquors, Sin City’s oldest freestanding bar; Binion’s, a Fremont classic; and the pink interior of the Peppermill does a great job of honoring that good ol’ Vegas sparkle…but nowhere continues the tradition of old classic Vegas. Almost. Oaky finishes, dim lighting and pristinely white tablecloths set against tall black leather quilted seats set the scene at Andiamo’s Italian Steakhouse, one of the few places left that gives off that “Is that Ol’ Blue Eyes sitting next to me?” vibe. Although Franky S. himself may not be there, celebrities from all walks of the industry have been spotted partaking in the restaurant’s signature flavors, including WWE icon Bill Goldberg, actor Chris McKenna and New England Patriot’s cornerback, Malcolm Butler.
mastermind and the must-have Italian influence that has served the restaurant and old Vegas so well since The Rat Pack was the lounge act of choice, the restaurant makes each perfectly doughy strip of flour and yeast by hand. With dishes like lobster risotto, potato gnocchi, Tortellaci Guiseppe, and agnolotti filled with ground veal, spinach, mascarpone creme, black truffle, wild mushrooms, and shaved Parmigiano-Reggiano, you will leave wondering what you’ve been doing the last several years of your pasta-eating life. We promise. Now that you we’ve filled your dreams full of rib-eye and dancing gnocchi, head down to The D Las Vegas, and straight into Andiamo’s doors. They’re open nightly from 5-11 p.m.
Brought to Glitter Gulch on the premise of Joe Vicari’s awardwinning Detroit restaurant group and its philosophy that the freshest ingredients, prepared daily from scratch, is the only way to run a kitchen, hungry patrons can enjoy a variety of signature dishes like the white truffle whipped potatoes or the popular and ever-so-classy, table-side Caesar salad. But let’s get down to what the steakhouse is really all about… hardy, fine cut steaks. Graded to be in the top 8 percent of all beef in the United States, each cut requires a minimum 30-day aging method that produces its signature tenderness. (Basically, these steaks will actually melt in your mouth.) The selection of cuts range anywhere from a traditional filet to a sizzling NY strip to a premium porterhouse and beyond…including the Tomahawk: a long-bone, 32-ounce rib-eye cut, charred to absolute perfection. Hungry yet? Wait until you hear about the pasta…can you say “handmade?” Paying homage to Chef Aldo, Andiamo’s recipe
Andiamo, The D Las Vegas, 301 Fremont St., Las Vegas, NV 89101, 702.388.2220 http://www.thed.com/dining/andiamo-steakhouse/ Tara Woodall is a California native turned UNLV alum. Just as in her real life, her writing is consumed by any restaurant offering a fried egg burger and authentically divey dive-bars. She appreciates venues that stay true to themselves and what they set out to do. You can find Tara concocting her own creations in her homemade apartment bar or out in the city behind the lens of her camera.
Vegas Legal Magazine Spring 2017 | Pg. 79
Tips For A Successfull
Surgical Outcome –By Andrew Cash, MD
Are you or someone you know considering spine surgery? Spine surgery is
a big decision that comes with a lifelong commitment to the risks and results of the procedure. This article sheds light on a basic preliminary checklist that I would recommend to my patients or my family members before going under the knife.
Know Your Options Your surgeon should identify the source of your complaints. Adults often have multiple MRI findings that are not causing pain, and a true diagnostician must identify which of the findings, if any, are generating pain in your spine. Patient complaints and their physical examination findings must be used in conjunction with imaging findings to clinically correlate the root of the patient’s pain. Many disc bulges cause pain and many do not. To simply operate on a disc bulge because it exists would lead to unnecessary surgeries with most likely poor outcomes. Surgical outcomes are improved by identifying the correct problem, performing the best procedure for that problem, and performing that surgery well. After history and physical examination are performed, to a varying degree, surgeons will order x-rays, MRIs, CT scans, nerve studies, diagnostic injections, and discograms. Make sure your surgeon has enlisted a comprehensive complement of diagnostic testings to corroborate clinical diagnoses to give him or her a solid foundation upon which to recommend a surgery and give you the reassurance that the surgery is likely to improve your condition. Although there are no guarantees with surgery, identifying the pain generator will improve the likelihood of success.
Know Your Surgeon Surgical qualifications are variable amongst specialists. Many patients are not aware that board certification is not required to perform surgeries. Board certification is independent from state medical licensure. Please inquire with your surgeon to identify if they are currently board certified. Fellowship training provides high-level specialization, which often translates into better outcomes and lowered complications. Please identify if your surgeon has successfully completed fellowship training in spine surgery. Patients may want to inquire how long their surgeon has been performing surgeries, how often they perform surgeries, and what percent of their practice is related to spine surgery as opposed to general orthopedics or neurosurgery.
Know Your Procedures Knowing everything you can about your surgeon is as important as doing
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your homework about the types of procedures available to you, such as minimally invasive techniques. Not all spine surgeons perform minimally invasive techniques, although some perform minimally invasive techniques occasionally and some are very adept in minimally invasive and cutting-edge technology. Patients might benefit from knowing how many minimally invasive techniques their surgeon has performed; for what duration of their career they have performed them; and if they, in fact, train other surgeons to perform minimally invasive surgeries. Minimally invasive surgeries are newer developed techniques which often improve surgical success, lower complications, limit exposure to hospital stays, reduce blood loss, reduce infections, improve speed of recovery back to work and life, and decrease rehabilitation time while maintaining muscular tissue and muscular strength. The world has been gradually moving more toward minimally invasive techniques in most specialties, particularly spine. Please do not miss the boat.
Know Your Rights Once surgery is performed, there is no undoing the surgery, which means patients are always welcome to a second and even third opinion regarding spine surgery. Please make sure you feel comfortable with your spine surgeon as your compassionate physician and as your surgical technician. If your spine surgeon is defensive about getting a second opinion or adamant that it is their way or the highway, you might want to get off at the next exit…literally and figuratively. Exploratory surgery is not optimal. With 2017’s sophisticated technology, physicians should be able to identify the source of the pain before going into surgery. Although surgery may reveal things undetected by diagnostic studies, performing surgery for the basis for learning the source of pain is guarded against. If your spine surgeon corners you with multiple PAs, medical assistants and staff in a small room with a closed door with a consent form—making you feel like you are at a high-pressure sale after your introductory visit to a new gym—break out of the office and get to another spine surgeon.
Know About Elective Spine Surgery Elective spine surgery is rarely curative. Often, patients might experience incomplete relief, or future pain may result in the same area due to adjacent level stresses and eventual breakdown of spinal structures. Please understand appropriate expectations without any sugar coating so you know what you are signing up for. Elective spine surgery generally follows conservative measures like physical therapy, chiropractic and therapeutic injections. Please allow a sufficient amount of time to see if conservative measures work for you. Elective surgery is generally held as a last resort. As I said earlier, once you undergo surgery, you cannot undo the decision. Please have your surgeon explain why surgery is a reasonable option and provide any non-surgical options. Generally, the non-surgical options include physical therapy, chiropractic, medication management, therapeutic injections, and the decision to live with the pain without any other measures.
Know When You Feel Good About Your Decision When you are being recommended surgery, your surgeon should be able to unquestionably tell you that he or she would recommend this surgery for the same condition in one of his or her family members. Similarly, if your surgeon provides you another surgeon’s name for a second opinion, make sure this referral would met the same standard as one for the surgeon’s family members. The old adage that there is more than one way to skin a cat sometimes applies to surgical approaches. When your surgeon recommends a particular procedure, ask if there are different approaches and if there are variable surgical techniques to “get the job done.” Andrew M. Cash, M.D., is a board-certified, fellowship-trained orthopedic spine surgeon specializing in neck and back care with a focus on minimally invasive operative treatments. His practice—Desert Institute of Spine Care—is located at 9339 West Sunset Rd., Suite #100, Las Vegas, NV 89148. For more information, visit www.disclv.com or call 702.630.3472.
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ADVICE FROM THE SURGEON
Treating The Emotions Of A Cosmetic Surgery Patient – By Julio L. Garcia, MD, FACS
Many different emotions go through a person’s mind when they look in
the mirror and see something they wish they didn’t see. They see possibly sagging skin, loose tissues, excess or disproportionate deposits of fat, or skin with fine lines and a dull appearance. The list can go on and on. When we encounter such things we don’t like in other parts of our life like our house, car or clothing, the decision to change them are much more easily made. Yet, when it comes to us, many times doubt creeps in. Am I just being vain? Do I really need this? Why can’t I just accept the way things are as I age? What will my friends and family say? The list can be paralyzing, and make people not take action. It is for that reason that the last 15 to 20 years have seen such an explosion in noninvasive or minimally invasive techniques to improve those small flaws. In the olden days, it was really only a surgical intervention that could be offered: a tummy tuck, a facelift and/or eyelid lift, liposuction, etc. The thought of something so drastic appears so large, and for some people a sign of “defeat.” I use the word defeat because maybe they should have known better in terms of avoiding the sun, stopping smoking, eating healthy, or a myriad of things that we now know can help prevent or slow the progression of these issues. So What Is One To Do? I have always thought that getting as much education about a subject before making a decision is of paramount importance. That is what the physician is truly supposed to do. In this case, it would be a doctor. Some of you may not know that the word “doctor” comes from the Latin root word for teacher. So truly, that is what a doctor should do first: teach. It can mean teaching prevention, treatment…a litany of things. But learning what the teacher has to say is important. In my office, I feel discussing the causes of the problems and any potential pitfalls of the available treatments is of a great help to patients. In my experience, a well-informed patient will feel better about their decision, understanding that measures taken to “look better” can many times be attached to feeling better. That is what I deal with on a daily basis… patients who are seeking a physical improvement in order to feel better. That “feeling better” extends to greater levels of confidence, a concordance of looking on the outside like you feel on the inside. For that reason I think that patients seeking information about an aesthetic or cosmetic procedure should see a physician who performs the whole gamut of procedures, from the surgical, to non-surgical, to minimally invasive. If one sees a physician
that only does fillers, for example, then they will offer only filler as the option. But the truth is, not everyone is a candidate for fillers…just as not everyone is a candidate for surgery. In our office, we offer a full range of aesthetic enhancements, and it is for that reason that I feel our patients receive a good education about their options…options that are tailored to their wishes, desires and needs. At times, the injectable non-surgical options can forestall the day of surgery or prolong the longevity of an appearance achieved with surgery. The reason for this is that the aging process is not just a matter of loosening skin. It is a result of loose skin shifting, or lost tissue below the skin, excess fat in some areas, or loss of fat in others. And surgery is not always the correct choice. When we can address the individual components, we see a more harmonious appearance. An appearance that does not look “too filled-up,” too tight, too pulled, or an appearance that leaves them looking like a different person. Cosmetic surgery and the ancillary techniques I speak of can then be offered to make sure the mixture is right, just like the porridge was for Goldilocks: not too hot, not too cold, but just right. I invite you to see us at our office for a private and confidential consultation where your concerns and desires, as well as fears, can be discussed, and we can then offer you a set of options. With that information you then can decide if the time has come for a subtle or a bigger step. We look forward to seeing you soon. Julio L Garcia, MD FACS, is the founder of the Regenerative Medicine Institute of Nevada, which is dedicated to helping patients with adipose-derived cell therapies for the treatment of acute and chronic medical issues. For more information about Dr. Garcia, please visit his websites at www.lvcosmeticsurgery.com and www.rminlasvegas. com, or contact his office by calling 1-888-FACES-89 or (702) 870-0058
Vegas Legal Magazine Spring 2017 | Pg. 83
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STIGMA OF ADDICTION How It Continues To Damage Nevada Communities & What We Can Do About It When U.S. Surgeon General Vivek Murthy, M.D., MBA, released
his 400-plus page report on addiction last November, what was prominently featured in the press headlines in the days afterward weren’t the opioid overdose statistics or the addiction research studies the report had cited, but rather a comment Murthy had made in the report’s preface. In a direct address to both U.S. medical professionals and the American population at large, Murthy called for an end to the long-held social stigma surrounding addiction. “For far too long, too many in our country have viewed addiction as a moral failing,” Murthy wrote in the report. “This unfortunate stigma has created an added burden of shame that has made people with substance use disorders less likely to come forward and seek help.” Murthy went on to state, “We must help everyone see that addiction is not a character flaw—it is a chronic illness that we must approach with the same skill and compassion with which we approach heart disease, diabetes, and cancer.” Coming from the nation’s highest-ranking doctor, this plea for a cultural shift was indeed a potentially powerful one. But was it enough to help Americans see addiction in a new, more compassionate light? We’ve Come A Long Way Throughout U.S. history, Americans have taken a Darwinian approach to addiction—and mental illness in general—exhibiting a “shape up or ship out” attitude and frequently turning a cold shoulder to anyone lacking the motivation to “pull themselves up by their bootstraps” and take the necessary steps to save themselves. In fact, it wasn’t until 1956 that the American Medical Association (AMA) recognized alcoholism as a disease. Prior to that, victims of addiction were frequently shuttered away in insane asylums and even made to undergo forced sterilization. More recent examples of discrimination and bias exist, as well. In a 2002 testimony before Join Together’s Policy Panel on Discrimination against Individuals in Treatment and Recovery, former First Lady
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Betty Ford testified that when the Betty Ford Center attempted to establish a residential treatment program for medical professionals, community residents lead protests. “They threatened to videotape our patients going to and from the homes and make public their tapes,” Ford said of the incident. “The ignorance and hate were surreal.” And as recently as 2010, it was common practice for health insurance companies to refuse coverage for those seeking treatment for addiction. Addiction sufferers were told that if they wanted their treatment to be covered, they either needed to wait until their disease became life threatening or until the symptoms of the disease caused significant enough damage to warrant classification as a disability. This changed, however, with the passing of the Affordable Care Act, when it became illegal to deny treatment to those with a substance use disorder. Then in 2016, several states—including Nevada—made it illegal to ban people with drug possession convictions from receiving benefits from the Supplemental Nutrition Assistance Program (SNAP). Prior to that, those who had served time for drug possession were denied access to food stamps, even if the crimes they had committed had occurred several decades prior. Today, recent research has shown that Americans’ attitudes toward addiction and mental health may be changing. For example, the results of a recent study found that 90 percent of Americans view mental health as being equally important as physical health. Much Work Still Needs To Be Done Although attitudes toward mental health issues have been changing, the fight for unbiased treatment is far from over. A past survey from California, for instance, found that 59 percent of employers claimed they would never hire a job applicant with a felony drug conviction. This survey and others suggest that an addiction bias is still pervasive, even as laws continue to be enacted to counteract it. And this bias, says the surgeon general, may be contributing to why so many Americans with substance use disorders are not getting help. Indeed, according to the report, 20.9 million people in America have a substance use
disorder, yet 90 percent are not receiving treatment for it. Steven M. Altig, Esq., a criminal defense attorney in Las Vegas, believes that addiction is particularly misunderstood in Southern Nevada due to the “prolific use of alcohol and other vices within this state.” “People see more people drinking or using without becoming addicted,” says Altig of Las Vegans’ perception of addiction. “As a result, it is easier for society to look at addicts and simply say addiction is the result of a lack of will power. Anyone who is educated on addiction knows that supposition isn’t accurate; however, it is easy for people to take on that mindset when you see so much use going on around you without a good portion of that use turning into addiction.” Why The Stigma Persists Addiction is not a “pretty disease” People in the throes of active addiction are not pleasant to be around and, unfortunately, their behavior does little to inspire empathy. The disease of addiction is unique in that it turns those suffering from it into self-centered and secretive shells of their former selves—people who are capable of committing horrendous acts in order to feed the cravings of their disease. The stories told on the news of drug-addicted parents selling their children for crack or drunks murdering their neighbors in a blackout certainly don’t help refute the stereotypes. Judge Cedric Kerns of the Las Vegas Municipal Court believes that this is one of the major reasons why addiction stigma continues to exist in Nevada and elsewhere. “Addiction is one of the very few diseases that the symptoms are behavioral in nature,” says Kerns. “Other diseases have physical
symptoms like sneezing, fevers, headaches, and dizziness. With addiction there is a hijacking of the frontal lobe, which then leads to manipulation, stealing, lying, prostitution, violence (all considered moral in nature). Because of this, people in active addiction are considered immoral or bad—not ‘sick’. Thus, the stigma.” Old stereotypes die hard, even among those in the medical community For decades, the medical community mistakenly deemed addiction “untreatable.” Thus, patients presenting with substance use disorders were treated for their symptoms and sent away or else directed to 12step programs. Now that the medical community has come under fire for contributing to the rise in prescription pain medication overdose rates, this has begun to change, yet more training needs to be provided so that healthcare workers may recognize the symptoms of addiction and intervene earlier. People fear the “addict” label Although the mental health profession has moved away from labels like “addict” or “alcoholic” in favor of “individual with a substance use disorder,” the addict-as-identity mindset (and all the shame and guilt that goes with it) continues to persist. This causes people to refuse to seek treatment: the fear of their friends, family and work colleagues learning their “dirty little secret” is so great, they would rather die than live with the shame of acquaintances discovering the truth. Addiction is treated separately from other mental health disorders Addiction continues to be treated separately from other co-occurring disorders, which often only serves to further fuel feelings of
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STIGMA OF ADDICTION ostracization. If someone with a history of substance abuse seeks out counseling for his or her anxiety, for example, it’s not uncommon for a counselor to refuse treatment unless the person “gets clean and sober” first. It’s a common belief that a person’s other mental health concerns— such as depression or anxiety—cannot be treated until the substance use disorder is addressed first. Can you imagine a psychologist telling a client that he can’t help him with his depression until he overcomes his eating disorder? And yet, with substance addiction, that’s often exactly what happens. Medical illness receives more funding and positive PR than mental illness Breast cancer victims receive colorful ribbons and parades. Brain cancer survivors are championed and lauded for their strength, courage and perseverance. ALS research receives millions of donation dollars. Those struggling with addiction, on the other hand, mostly suffer in silence; their causes of death mysteriously left out of obituaries and no “she bravely lost her battle to addiction” accolades on social media. The same often holds true for victims of other mental illnesses as well. People are being sent to jail for addiction-related charges instead of receiving the help they need Experts in the addiction field have long emphasized the need to focus on prevention and treatment rather punishment. Although Nevada has recently made an attempt to shift the focus in that direction, with more federal dollars being spent on programs that help inmates imprisoned on drug charges or who have a history of drug abuse, for example, the fact remains that we still have a long way to go with this. According to statistics provided by the Bureau of Prisons, of the 189,130 people incarcerated in federal prisons, 46.6 percent are serving time for drug offenses. A diabetic would never be imprisoned for buying a carton of ice cream, yet we imprison a drug addict for buying a bag of heroin. If society can have compassion for those suffering from physical illnesses, we should be able to extend that same compassion toward those suffering from mental illnesses. Altig hopes more of his colleagues in the legal community will work toward getting their clients help in treating the “underlying issue of addiction.” “It appears that many lawyers feel they are doing what is best for their clients by getting them an outcome that does not require the addict to treat their issues,” Altig explains. “This creates a revolving door for that client, and keeps them entrenched in addictive behavior that will result in their return to the criminal justice system.” While Altig acknowledges that attorneys may be fulfilling an obligation to their clients when they attempt to limit his or her punishment, he also suggests that removing consequences may not always be what is best for a client’s mental health. Altig, who himself is in recovery from addiction, notes that addicts are different.
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“With addicts, they need to have some sort of treatment to help address the addiction issue otherwise their return into the criminal justice system is imminent.” Judge Kerns expressed a similar sentiment, stating that “the jails and prisons are full of people due to their addiction,” but he also pointed out that this isn’t always a negative. “In many cases, it is absolutely appropriate. Judges are sworn to follow the law and in turn protect the community. The community includes the public as well as the defendant. When people in their active addiction rise to levels of violence and dangerousness, incarceration may be the only answer.” Judge Kerns, however, added that “each case is different” and that “rehabilitation and recovery is an answer for many, too.” The ‘rehabilitation vs. incarceration’ debate is an issue frequently argued in front of judges, explained Kerns, and it can be difficult for judges to “know exactly the most appropriate sentence.” This is why Kerns advocates for addiction education for everyone, including judges. What Can Be Done Educate yourself and others Southern Nevada offers several free addiction education programs for kids, teens, and adults. Las Vegas Recovery Center, for example, an alcohol and drug addiction treatment program in northwest Las Vegas, offers a Family Renewal Program for members in the community looking to learn more about the disease of addiction and what they can do to help those afflicted with it. The program includes a free education and support meeting, every Monday at 6 p.m. Help spread awareness that addiction is a disease The American Society of Addiction Medicine defines addiction as a “primary, chronic disease of brain reward, motivation, memory, and related circuitry.” The more people who understand that addiction is a disease that affects the circuitry of the brain, the more likely it will be that with time, our culture will stop seeing addiction as a “moral failing” and start seeing it for what it is: a potentially deadly illness. Be a source of support for friends, family and neighbors who are suffering from or are in recovery from this disease Become an advocate for those in your community who are suffering from addiction. There are several organizations that work with local communities to help raise awareness and host educational and fundraising events, including Faces and Voices of Recovery, Join Together Nevada, and Foundation for Recovery. Visit their websites for upcoming event information. Las Vegas Recovery Center (LVRC) also offers help to those wishing to seek recovery from an opioid use disorder. With campuses in northwest Las Vegas and Henderson, LVRC is equipped to help chronic pain and addiction sufferers across the Las Vegas Valley. Visit www.lasvegasrecovery.com or call 702-515-1373 to learn more.
HUMOR //
Spring 2017