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Scotti Doesn’t Know: When Judicial Misconduct Warrants a New Trial

 In Azucena v. State of Nevada, the Nevada Supreme Court held that a judge committed judicial misconduct warranting a new trial after the judge, literally, threw a book at a potential juror during voir dire.  135 Nev., Adv. Op. 35, 448 P.3d 534 (Nev. 2019).  

 If you have ever seen the movie Eurotrip, you understand why I had to write this post, because the judge’s name is Scotti.   

If you haven’t, google it. 

But even without Eurotrip, Azucena answers a very common question that frequently comes up:  When does judicial misconduct warrant a new trial? 


During voir dire in a criminal case where the defendant was charged with multiple sex offenses against children, “the trial judge throw a book against the wall, and berated, yelled at, and threatened a prospective juror for expressing the belief that she could not be impartial.”  Azucena, 448 P.3d at 536. 

Voir dire is the legal term used to describe “picking an impartial jury.”  Under the United States Constitution and the Nevada Constitution, every defendant is entitled to a trial by an impartial jury of his or her peers.  Nev. Const., art. 1, § 3; U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”).  Voir dire, or questioning of the potential jurors, is how lawyers determine whether a juror may possess a bias which would violate the defendant’s right to an impartial jury. 

Because selecting an impartial jury is so important, voir dire can sometimes take days.  In Acezuna, when the potential jurors came back for the second day of voir dire, one juror noted that she might have bias towards the defendant because she was a nurse who was frequently exposed to child abuse.  448 P.3d at 536.   This is what happened next: 

The Court:  So you didn’t say that yesterday.  All right.

Prospective Juror No. 177: Well, I said I had other issues.

The Court:  No, listen – what – what we’re not going to have in this jury is people coming in overnight and thinking up shit and try to make shit up now so they can get out of the jury. That’s not going to happen.  All right.  All right.  Because if I find that someone said something yesterday under oath and changes it because they’re trying to fabricate something to get out of serving on this jury, there’s going to be repercussions.  All right. 

Id.  As he was yelling at the juror, the judge threw a book against the wall.  Id

After the juror was excused, the next prospective juror stated “that she had been sexually abused as a child but stated that she would not be biased.”  Id. at 536-37. Unsurprisingly, every other juror stated that they definitely, probably, did not have any potential bias.  

The Nevada Supreme Court held that this exchange was “inappropriate and constituted judicial misconduct” in light of the judge’s role as the keeper of civility in a courtroom.  Id. at 538.  The Nevada Supreme Court further found that this judicial misconduct warranted a new trial because voir dire, one of the most important processes in a jury trial, is only effective “if the prospective jurors answer candidly.”  Id. When “jurors are given reason to fear reprisals for truthful responses,” it is presumed that jurors are not answering voir dire questions candidly.  Id. at 538-39.   Given the judge’s reaction to the juror at issue, the Nevada Supreme Court found that other prospective jurors may have been discouraged “from responding honestly about their own biases out of fear of repercussions.”  Id.

Out of fairness to the judge, lawyers and judges hear the craziest excuses from prospective jurors who are trying to get out of jury duty.  I once had a juror write on their jury questionnaire that they could not serve impartially because they are prejudiced against people of color.  (Unfortunately for that juror, it was a trial involving wealthy, white people.)

The import of the Azucena case is not what actually happened in the courtroom; rather, it is the fact that this is one of the few cases where an appellate court has found that judicial misconduct warrants a new trial.  Judges are people too, and they have good and bad days like the rest of us.  Sometimes those bad days occur during trial.  But not all bad days are misconduct, and not all judicial misconduct is grounds for a new trial.  Litigants should be aware of when they should and should not argue it on appeal. 


The fact that the judge clearly did not like you or your attorney is not judicial misconduct warranting a new trial.   See, e.g. Coddington v. State, 415 P.3d 12 (Nev. 2018) (finding that a judge rolling his eyes and appearing frustrated during closing arguments was not judicial misconduct).  In Horton v. Fritz, the Nevada Supreme Court reprimanded the trial judge for threatening the appellant’s counsel with sanctions if the case was lost and commenting that “he was fed up with spurious lawsuits,” but nevertheless found that the appellant received a fair and impartial trial.   113 Nev. 824, 830, 942 P.2d 134, 138 (1997).  Another trial judge was reprimanded for commenting on credibility of one party’s witnesses, expressing impatience, rebuffing trial counsel for trial tactics, and asking a juror “isn’t this the most boring case you have ever heard?” in an elevator outside of the courtroom.  Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140-41 (1970).  However, the Nevada Supreme Court concluded that this misconduct did not deprive the appellant of the right to a fair trial, and did not warrant reversal.  Id

The fact that the judge clearly thinks your witness is lying is not judicial misconduct warranting a new trial.  Ginnis, 86 Nev. at 416-17, 470 P.2d at 140-41; see also Garnica-rojo v. State, 387 P.3d 880 (Nev. 2016) (holding that a judge’s alleged questioning of “a witness in such a way that implied disbelief concerning a witness’s testimony” was not judicial misconduct warranting a new trial). 

Similarly, the fact that a judge clearly likes a witness of the opposing party is not judicial misconduct warranting a new trial.  Brant v. State, 130 Nev. 980, 988, 340 P.3d 576, 582 (2014) (holding that a judge defending a witness’s decision not to answer a certain line of questioning and thanking the witness for his patience was not judicial misconduct warranting a new trial). 

Overruling objections to evidence is generally not judicial misconduct warranting a new trial.  Cager v. State, 124 Nev. 1455, 238 P.3d 799 (2008) (holding that a judge’s overruling objections with “curt, dismissive instructions to sit down” and stating “we have two of you now objecting?” when second defense counsel attempted to object was not judicial misconduct warranting a new trial). 


Judicial misconduct may warrant a new trial when it interferes with the voir dire process.  In contrast to the conduct discussed in Azucena, the Nevada Supreme Court has also found judicial misconduct to warrant a new trial when “the judge’s unfortunate, yet well-intentioned conduct injected an unwarranted levity into the proceedings that may have adversely influenced the [juror’s] perceptions of the significance of the trial.” Parodi v. Washoe Med. Ctr., Inc., 111 Nev. 365, 367, 892 P.2d 588, 589 (1995).  In Parodi, the judge turned voir dire into a literal parody by, among other things, leading the “prospective jurors in a standing ovation when appellants’ counsel returned a few minutes late from recess,” informing a tardy juror that “she was ‘eligible for this fun, too,’” joked about the solemn oath jurors must swear, “directed light-hearted comments to a prospective juror, whom he knew from college, regarding the judge’s fitness to serve on the bench,” and “endorsed one prospective juror’s business.”  Id. at n.1.  The Nevada Supreme Court held that this conduct was both inappropriate and potentially prejudicial, as it led the jurors to make light of the serious situation of a trial.  Id. at 370, 892 P.2d at 589. 

Interjecting levity into the later stages of the trial may also warrant judicial misconduct, particularly where the levity is aimed at one party’s counsel while excluding the other.  In Haluck v. Ricoh Electronics, Inc., the California Court of Appeal held that the judge’s conduct warranted a new trial where the judge “helped create, a circus atmosphere, giving defendants’ lawyer free rein to deride and make snide remarks at the will and at the expense of the plaintiffs and their lawyer.”  60 Cal. Rptr. 3d 542, 548 (2007).  The misconduct included, among other things, jokes between the judge and defense counsel about being in the “Twilight Zone,” the judge’s use of a written sign that said “overruled” on almost all of plaintiff’s objections but none of defendant’s, and used a “soccer style” “red card” to stop plaintiff’s counsel from speaking.  Id. at 550.  The result of this was to make the “plaintiffs’ lawyer the butt of [the judge’s and defense counsel’s] jokes . . . in a way that could only convey to the jury that they were a team and the plaintiff’s counsel was an outsider.”  Id

Judicial conduct that implies favoritism to any party in one manner or another may warrant a new trial.  For example, in Oade v. State, the Nevada Supreme Court held that a new trial was warranted due to the judge’s treatment of the “California” attorneys in the courtroom, which included levying fines or issuing warnings for minor transgressions, and “repeatedly express[ing] impatience with Oade’s counsel in the presence of the jury,” expressing an opinion that the evidence presented by Oade’s counsel was not credible and implying that a defense was not tenable.  114 Nev. 619, 623-24, 960 P.2d 336, 339 (1998).  While these errors on their own were not sufficient to warrant misconduct, in the cumulative they worked to “lessen[] the defense’s credibility and prevent[] the defense from obtaining full and fair consideration from the jury.”  Id. at 624, 960 P.2d at 339. 

Similarly, in Holderer v. Aetna Casualty & Surety Co., the Nevada Supreme Court held that a new trial was warranted where the trial judge “expressed his negative feelings toward personal injury attorneys” and “facetiously comment[ed] that he could be writing his ‘grocery list’ during trial.”  114 Nev. 845, 850, 963 P.2d 459, 463 (1998).  The Nevada Supreme Court held that this conduct put the appellant’s “counsel in a poor light and trivialized the proceedings.”  Id.  at 851, 963 P.2d at 463.

Judicial misconduct warranting a new trial may also occur when the trial judge makes comments that appear to be giving legal advice to one party’s counsel, as this may also imply favoritism for one party to the jury.  Bank of Am., N.A. v. Atkin, No. 3D18-1840, 2018 WL 6595138, at *4 (Fla. Dist. Ct. App. Dec. 14, 2018). 

Finally, conduct that interferes with the jury verdict may warrant a new trial.  See Taylor Morrison of Texas, Inc., No. 02-13-00364-CV, 2014 WL 487221, at *5 (Tex. App. Feb. 6, 2014) (holding that judicial misconduct occurred when the judge’s communications cause the jurors to “not complete their deliberations, vote on some questions, or render a verdict on all questions because the trial judge instructed them not to answer Question 10 and to stop their deliberations”). 


Judicial misconduct may arise from one isolated incident, as seen in Azucena, or from multiple incidents which cumulatively taint the trial.  See Holderer, 114 Nev. at 850-51, 963 P.2d at 463; Parodi, 111 Nev. at 367, 892 P.2d at 589. 

If the judicial misconduct is an overt, isolated incident, you should object at trial to preserve the issue for review on appeal.  Ginnis, 86 Nev. at 417, 470 P.2d at 141.  If the judicial misconduct is more subtle and cumulative, you have a choice.  As explained by the Nevada Supreme Court in Parodi, judicial misconduct is reviewed for plain error.  111 Nev. at 367, 892 P.2d at 589.  This means that the Nevada Supreme Court will consider the argument even if not objected to below, provided that the error is plain enough that the record demonstrates an injustice has been done.  Id.  In cases of cumulative error, multiple objections may not be appropriate as it places the party in “the untenable position of silently accepting the judge’s trivialization of the proceedings, or risking the prospect of alienating the judge or the jury by interjecting a discordant and somber note to the good-spirited trial atmosphere created by the judge.”  Id.  


Do not literally throw books at jurors.  And watch Eurotrip, if you have not seen it. 

Anatomy of an Answering Brief

I recently discussed what an appellant must include in their opening brief HERE.  This post breaks down what a respondent (Nevada) or appellee (Ninth Circuit) needs to include in their answering brief.


The good news for respondents/appellees who are wordy (or lazy) is that you do not need to include every item in an opening brief in your answering brief.

Items that you do NOT need to include are:

1.  jurisdictional statement;

2.  Routing statement (Nevada);

3.  statement of the issues;

4.  statement of the case;

5.  statement of the facts;

6.  standard of review; and

7.  conclusion.

NRAP 28(b); FRAP 28(b). 

These items may be left out of the brief if you agree with the appellant’s statement of them.  Beware, however, that anything you leave out gives the appellant the only say on this matter.  As a respondent/appellee, your answering brief is your one shot at telling the court your story.


1.  The Rule 26.1 Corporate disclosure statement;

2.  table of contents

3.  table of authorities;

4.  summary of the argument;

5.  argument;

6.  compliance certificate.

These items are discussed HERE

Hall v. Hall Revisited: In re Estate of Sarge

The Nevada Supreme Court has joined SCOTUS in holding that an order resolving one consolidated matter is independently appealable.  Hall v. Hall, 128 S. Ct. 54, 198 L.Ed.2d 780 (Sept. 28, 2017); In re Estate of Sarge, 134 Nev., Adv. Op. 105, 432 P.3d 718 (2018).  I discussed the Hall opinion HERE.

Prior to Hall, the rule in Nevada was that a consolidated case could not be independently appealed.  Mallin v. Farmers Ins. Exchange, 106 Nev. 606, 608-09, 797 P.2d 978, 980 (1990).  Following Hall, however, the NVSC overruled MallinSarge, 432 P.3d at 722. It found that Mallin did not address Rule 42 and relied upon Ninth Circuit precedent that was overruled in Hall.  Id.  The NVSC further noted that Mallin overlooked an earlier NV court case which stated that consolidated cases were independently appealable.  Id. at  721.  Reasoning that it should never allow its prior decisions to operate as a “straight jacket,” the NVSC overruled Sarge and held that consolidated cases are now independently appealable.   

Anatomy of an Opening Brief


One of the biggest differences between litigation and appellate practice is the briefing.  When you litigate, you can get creative with how you draft motions, what you title them, and what you include within the body of the brief.  You cannot do that on appeal.  Here’s how you structure an opening brief, and what you must include. 


After the title page, the very first thing you should include in the brief is a corporate disclosure statement under either NRCP 26.1, or FRAP 26.1.  NRAP 28(a)(1); FRAP 28(a)(1).  The purpose of a corporate disclosure statement is to identify the immediate ownership of entities so that the presiding Justices can determine whether they need to recuse themselves.  For example, if a Justice owns a lot of stock in one of the entities that owns the appellant, they should probably recuse themselves so as to avoid any appearance of improper bias towards the respondent. 

Corporate disclosure statements must be filed any entity that is not a natural person or a government agency.  NRAP 26.1(a); FRAP 26.1(a).  The disclosure must identify the owners (whether it is a corporation or not).  If a publicly held corporation owns 10% or more the company, that company must be identified.  If the entity is not owned by a public corporation, then the corporate disclosure statement needs to specifically state that fact.  Id

The corporate disclosure statements only require you to identify immediate ownership.  If your client is a limited liability company that is wholly owned by another company, you only need to identify that company.  You do not need to go further up the chain of ownership.  See NRAP 26.1; FRAP 26.1.

In Nevada, you must also list all counsel who appeared on behalf of your client before the lower court, and who are expected to appear on appeal.  NRAP 26.1(a). 

The corporate disclosure statement is the first thing you file on appeal, which means that you must file it if you engage in briefing prior to the opening brief (motions, etc.).  FRAP 26.1(b); NRAP 26.1(b). Even if you have already separately filed a corporate disclosure statement, you must include one in your brief.  FRAP 26.1(b); NRAP 26.1(b). 


Following the corporate disclosure statement, you must include a routing statement under NRAP 17, specifying which court should hear your appeal and why.  NRAP 28(a)(5).  How appeals and the routing process work in Nevada is discussed HERE.


The next two items you must include are a table of contents, with page numbers, and a table of authorities.  FRAP 28(a)(2)-(3); NRAP 28(a)(2)-(3).  The table of authorities should contain every case, statute, rule, regulation, and secondary source that you cite, with the page number where each citation appears.  FRAP 28(a)(3); NRAP 28(a)(3).  Authorities should be listed alphabetically (case law and secondary sources), or numerically (statues and rules).  Id


The next item that should appear is a jurisdictional statement, identifying the source of the Court’s jurisdiction.  This must include the rule of appellate procedure that provides jurisdiction in the Supreme Court or Court of Appeals.  NRAP 28(a)(4); FRAP 28(a)(4)  The primary rule in Nevada is NRAP 3A.

You must include the filing dates of the notice of appeal, and the date the judgment was entered to establish that your appeal was timely brought within the 30-day period to appeal.  NRAP 28(a)(4)(b); FRAP 28(a)(4).  

You must also certify that your appeal is either from a final judgment or order, or from some other order over which the Supreme Court or Court of Appeals have jurisdiction.  NRAP 28(a)(4)(c); FRAP 28(a)(4).  Appealable orders which are not final judgments under Nevada law are listed in NRAP 3A(b). 


The next item is a statement of the issues on appeal.  NRAP 28(a)(6); FRAP 28(a)(5).  The “issues” on appeal are the errors you contend the District Court made.  “The District Court abused its discretion in granting sanctions because  . . . “  The District Court erred in granting summary judgment because … etc.


Following the statement of the issues, you must present a statement of the case.  NRAP 28(a)(7); FRAP 28(a)(6).  A statement of the case is a brief synopsis of the underlying facts of the case and the procedural background underlying the appeal. 

It is not a place for you to go off on a rant about the raving injustice your client suffered.  Opening briefs have word limits, and those limited words should not be wasted in the statement of the case. The key word here is “brief.”  The statement of the case should identify the nature of the underlying case (this is an appeal from a personal injury lawsuit, this is an appeal from a jury verdict of guilty in a first-degree murder trial, etc.).  It should briefly explain the facts and the procedural history leading up to the appeal. 


The statement of the facts is exactly what it sounds like:  the statement of the factual and procedural background relevant to the appeal.  NRAP 28(a)(8).  Every sentence in this portion should have a citation to an appendix or a record on appeal page. 

You do not have to include every fact or every piece of evidence and every motion that was filed.  Your statement of the facts only needs to include those facts which are directly relevant to the issues on appeal.


The next item that must be included is a summary of the argument.  NRAP 28(a)(9); FRAP 28(a)(7).  The summary of the argument is similar to an introduction in a motion.  It is your real first chance to tell the Court why you are appealing, what the legal wrongs were that were suffered, and why the District Court was wrong. 

Do not simply restate your headings from your argument in your summary.  The Court hates this so much that they specifically put in their rule not “do not repeat the argument headings.”


The argument portion also speaks for itself.  This is where you get to argue why your client was wronged, why the District Court erred, and why the Court should rule in your favor on appeal.

Remember to always include the applicable standards of review for each issue.  You are required to include these by rule.  NRAP 28(a)(10); FRAP 28(a)(8).  You can learn what standards apply to your issues HERE.


Congratulations! You’ve made it to the end of your brief.  You still have to write a conclusion.  NRAP 28(a)(11); FRAP 28(a)(9).  The conclusion must state the relief sought.  Are you seeking reversal of some, but not all? Are you seeking remand?  Tell the Court what you want. 

But keep it brief.  The conclusion is not a place to rehash all of your arguments. 


Your brief must also contain a certificate of compliance. NRAP 28(a)(12); FRAP 28(a)(10).  This certificate certifies that your brief conforms to the type and format requirements of the court, meets the word count, and is otherwise, basically, a legitimate filing.  NRAP 28.2; FRAP 32(a)(7).  If you are not represented by an attorney, you do not need to include this certificate. 

Paying for the Other Guy: How to Appeal Attorney Fee Awards

Losing hurts, and it hurts even worse when you get saddled with the other guy’s attorney’s bill.  Here’s how and when you can appeal attorney fee awards.


If the lower court awards the other side attorney fees before entry of a final judgment, the order is interlocutory.  This means it cannot be appealed until the entry of a final judgment in the case.  See Allen v. Nelson, 126 Nev. 688, 367 P.3d 744 (2010) (dismissing an appeal of an interlocutory award of attorney fees, taken prior to entry of a final judgment).  To determine when a judgment is considered final, please read this.

Once a final judgment has been entered, the attorney fee award can be contested on appeal along with any other issues.


Attorney fee awards after entry of a final judgment are independently appealable as a “special order after judgment.”  NRAP 3A(b)(8); see also Lytle v. Rosemere Estates Prop. Owners, 129 Nev. 923, 925-26, 314 P.3d 946, 948 (2013).  This means that appeals from these awards must be filed within thirty (30) days of the notice of entry of order awarding attorney fees.  Winston Prods. Co. v. DeBoer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006).

Like final judgments, the time period to file these appeals can be tolled by a “tolling motion” filed under NRAP 4.  A “tolling motion” includes motions for reconsideration of the attorney fee award.  Id.


If you receive a final judgment while a motion for attorney fees is still pending, that motion for fees does not toll your time to file an appeal of the final judgment.  You must file within thirty (30) days.

What happens if you appeal a final judgment, only to be hit later with an attorney fee award that you also want to appeal?  It depends on what the district court does.

If the district court amends the final judgment you have already appealed, you must file an amended notice of appeal noting the amended judgment.  But, if the district court simply enters an order awarding attorney fees, or enters a separate judgment, you must file a separate appeal of these awards.  Campos-Garcia v. Johnson, 130 Nev. 610, 611-12, 331 P.3d 890, 891 (2014).  You will be asked to notify the Court of related appeals in both the case appeal statement and the docketing statement, and the Supreme Court Clerk will consolidate these appeals.


The flip side of this coin are those aggrieved by a district court’s denial of a motion for attorney fees.  The rules set forth above generally apply.  If a final judgment has not been entered, you cannot appeal the order denying your request until a final judgment is entered. If you are the respondent, you can file a cross-appeal after final judgment to address the denial of your fees.  If you are the appellant, you simply take the issue up with your other issues on appeal.

If the order is entered after a final judgment, you must file a separate notice of appeal unless you can timely file a cross-appeal.

At the end of the day, you have to pay a lawyer if you want to litigate.  Hopefully, the lawyer you pay is your own.

Protecting Your Pocket: When Attorney Fees and Costs are Recoverable on Appeal

Getting saddled with an appeal after you have won a case  can be a bitter pill to swallow.  Continuing to pay an attorney who you thought you were done paying only rubs into the wound.  Here’s how you might be able to recover attorney fees on appeal.


A Nevada appellate court will only award attorney fees on appeal if:

  • “an appeal has been frivolously taken or processed in a frivolous manner;”
  • The appeal was filed solely to delay; or
  •  a party abuses and misuses the appellate process for some purpose other than resolving an appeal.

NRAP 38(b).  The Nevada Supreme Court can also award monetary sanctions if it finds that an appeal is frivolous. NRAP 38(a).

Awards of attorney fees on appeal under NRAP 38 are rare.  The appellate courts have substantial discretion to award these fees, and they rarely exercise that discretion.  Bd. of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 288 n.2, 994 P.2d 1149, 1150 n.2 (2000).

An appeal is not frivolous merely because the party lost.  See, e.g., Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1356-57, 971 P.2d 383, 388 (1998); Edington v. Edington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003).

NRAP 38 truly comes into play when the opposing party’s conduct has been dishonest, disruptive, and fails to comply with the rules of appellate procedure.

For example, in Varnum v. Grady, the Nevada Supreme Court imposed monetary sanctions because the appellant failed to abide by five procedural requirements relating to transcripts, record designation and filing fees.  90 Nev. 374, 375-77, 528 P.2d 1027, 1028 (1974).  After the respondent moved to dismiss the appeal, the appellant argued that its counsel should be excused for not following the rules because he was involved in a trial and working on other briefs.  Id.  Needless to say, the Nevada Supreme Court completely rejected the argument, refused to accept counsel’s preoccupation with other cases as a valid excuse, and found that the appellant’s prosecution of its appeal was dilatory and warranted monetary sanctions.  Id.

Sanctions can also be issued against respondents.  In Sobol v. Capital Management Consultants, Inc., the Nevada Supreme Court issued sanctions against the respondent because of its “blatant misrepresentation of the stipulated facts” in its brief, and because it quoted language from a dissent in a case as if it were “the holding of the case.”  102 Nev. 444, 446-47, 726 P.2d 335, 337 (1986).  The Nevada Supreme Court not-so-gently reminded the respondent that it “expect[s] and require[s] that all appeals . . . will be pursued in a manner meeting high standards of diligence, professionalism, and competence.”  Id. (Internal quotations omitted).

The Nevada Supreme Court has also made it clear that a voluntarily dismissed appeal is not automatically “frivolous” so as to warrant an award of attorney fees.  Breeden v. Eighth Judicial Dist. Ct., 131 Nev., Adv. Op. 12, 343 P.3d 1242, 1243 (Nev. 2015).  In Breeden, the Nevada Supreme Court rejected the argument that fees should be awarded under NRCP 42(b) and NRAP 38 for voluntary dismissal of appeals because “courts encourage rather than discourage voluntary, self-determined case resolutions.”  Id.


Unlike attorney fees, costs are frequently recoverable on appeal under NRAP 39.

How an appeal is resolved determines who has to pay the costs.  Here’s how Rule 39 works:

  • If the appeal is dismissed, the appellant has to pay the costs unless the parties agree otherwise.
  • If the judgment is affirmed, the appellant has to pay the costs (because they lost).
  • If the judgment is reversed, the respondent has to pay the costs (because they lost).
  • If the judgment is affirmed in part and reversed in part, then costs are only recoverable if the appellate court orders (because everybody won but also lost).

NRAP 39(a).

The costs that you can recover include:

  • Costs of copying for “necessary” copies of briefs and appendixes
  • Costs of roundtrip transportation for oral argument. These are limited to the distance between the district court and the appellate court (i.e., your New York lawyer can’t charge for flying from New York to Vegas).  The costs are further limited to 15 cents per automobile mile or the cost of commercial airfare, whichever is lowest.
  • Preparation and transmission of the record
  • Reporter’s transcript
  • Preparation of appendix
  • Premiums paid for supersedeas or other bonds filed upon appeal
  • The filing fee for the appeal

NRAP 39(c), (e). Costs for copies and transportation are capped at $500.  NRAP 39(c)(5).  For estimation of other appeal costs, read this post.

To recover these costs, you must file an itemized and verified bill of costs with the appellate court within 14 days after the order or opinion is issued.  NRAP 39(c)(3).    The costs are actually awarded in the remittitur.  NRAP 39(d).  If remittitur issues before costs are determined, then the district court adds the statement of costs to the remittitur.  Id. And if you have no clue what “remittitur” is, read this post.


If you had fees awarded pursuant to an offer of judgment in the district court, you may be able to recover fees incurred upon appeal under that same offer of judgment.   NRCP 68 “extend[s] to fees incurred on and after appeal.”  In re Estate & Living Tr. of Miller, 125 Nev. 550, 555, 216 P.3d 239, 243 (2009).  Keep in mind, however, that the appellate court’s ruling regarding the offer of judgment on appeal will govern whether you can recover fees because the appellate court’s ruling is the law of the case.  Bd. of Gallery of History, Inc., 116 Nev. at 289, 994 P.2d at 1150.  This means that an order or opinion affirming the award under the offer of judgment only leaves the question of whether your fees incurred on appeal were reasonable.  Likewise, an order reversing the judgment may result in a finding that your offer was unreasonable, and you are not entitled to any fees.



The ABC’s of Notices of Appeal

To begin your appeal, you must file a notice of appeal.  NRAP 3; FRAP 3.  Although it seems simple, you can really screw your appeal up if you do not know what the notice of appeal must contain.  Here’s a quick breakdown:


A lawyer with client authority

Generally, your counsel (or yourself, if you are unrepresented and appearing pro se) files the notice of appeal.  However, an attorney cannot file a notice of appeal on your behalf without your consent.  The Comm’n on Ethics of the State of Nev. v. Hansen, 134 Nev., Adv. Op. 40, 419 P.3d 140, 142 (Nev. 2018).  If your attorney files a notice of appeal on your behalf before you have given them consent, the notice of appeal is defective. Id.

Hansen is the most recent decision of the Nevada Supreme Court to address effective notices of appeal.  Hansen involves the tragic tale of poorly placed hunting traps, two assemblyman, one self-proclaimed “local watchdog,”  the Nevada Commission on Ethics, and a partridge in a pear tree.  Id. at 140.

In a crazy plot twist, the partridge was not snared by the traps.  Instead, the assemblyman who placed them was snared, or cited, by the Nevada Department of Wildlife for violating a statute regarding their placement.  After his fellow assemblyman requested a Legislative Counsel Bureau opinion as to whether the traps violated the statute, a local watchdog then filed an ethics complaint against both men with the Commission for allegedly abusing their positions.   Id. at 140.

After the Commission refused to dismiss the ethics complaint, the assemblymen filed a petition for judicial review.  Id.  The district court agreed that the ethics complaint should be dismissed.  Id.  The Commission did not, and filed a notice of appeal.  Id.

When I say “Commission,” I actually mean the Commission’s counsel filed the notice of appeal, and he did so after only consulting with the chair and executive director rather than the entire Commission.  Id.  When you are a lawyer, and you represent an organization, the entire organization is the client.  NRPC 1.13(a).

In Hansen, the Nevada Supreme Court dismissed the appeal because the “client,” i.e., the Commission, did not give the attorney authorization prior to filing the notice of appeal.  Id. at 142.  The Court reasoned that an appeal is a decision that a public body must hold a public meeting and vote upon because it requires commitment of public funds.  Id.  Since that did not happen prior to filing the notice of appeal, the Court dismissed the appeal for being defectively noticed.  Id.

Multiple parties with common interests on appeal

With authority, your attorney can file a notice of appeal on your behalf.  If you are an attorney who represents multiple clients, you can file a “joint notice of appeal.”  NRAP 3(b)(1); FRAP 3(b)(1).  If you have co-parties whose interests are aligned with yours but who are represented by separate counsel, you can also file a joint appeal.  Id.  On appeal, the parties will be treated as individual appellants. Id.   You can also file separate notices of appeal, and seek consolidation or joinder.  NRAP 3(b)(2); FRAP 3(b)(2).


Even if you screw up the notice of appeal, the district court clerk must still file it and notify the Nevada Supreme Court, and the Nevada Supreme Court clerk must accept it and assign it an appeal number.  NRAP 3(a)(2)-(3).  The Ninth Circuit does not require the same of its courts, and a procedurally defective notice of appeal may result in immediate dismissal without prejudice.  See FRAP 3.

The only court that can dismiss an appeal for a defective notice of appeal is the appellate court, not the district court.  The district court’s obligation is to keep a clear record of the case, including any deficiency in the notice of appeal.  Whitman v. Whitman, 108 Nev. 949, 951, 840 P.2d 1232, 1233 (1992).  While the district court should inform the appellant of procedural deficiencies, it must still file the notice of appeal. Id.


The notice of appeal needs to include three main items:

1.  The Identity of the Parties on Appeal 

The notice of appeal should designate the appellant, the respondent, and any other interested parties.  NRAP 3(c)(1)(A); FRAP 3(c)(1)(A).  If you have counsel, the notice of appeal should also state which parties that attorney represents on appeal. Id.

2.  The Judgment or Order Being Appealed 

This is the most important thing to include in your notice of appeal.  Any “appealable judgment or order that is not designated in the notice cannot be considered on appeal.”  Abdullah v. State, 129 Nev. 86, 91, 294 P.3d 419, 422 (2013).  If you leave it out, you have not appealed it.  Always identify all orders and judgments on appeal.  NRAP 3(c)(1)(B); FRAP 3(c)(1)(B).

3.  The Court To Which You Are Appealing 

You must state the court to which you hope to appeal.  NRAP 3(c)(1)(C); FRAP 3(c)(1)(C). This is very simple. In Nevada, all appeals are first filed in the Nevada Supreme Court.  If you appeal from district court, you simply have to state you are appealing to the Nevada Supreme Court.  Once the appeal is docketed, and your briefs are filed, the Nevada Supreme Court will determine whether to assign the case to the Court of Appeals.  NRAP 17.

In the Ninth Circuit, your appeal will almost always go to the Ninth Circuit Court of Appeals.


Your notice of appeal must be filed with the district court clerk.  NRAP 3(d); FRAP 3(a).  In Nevada, you must serve a copy on all other parties by either mailing it to their last known address, or their lawyer.  NRAP 3(d)(1).  In the Ninth Circuit, the federal district court clerk must serve the notice on all parties.  FRAP 3(d)(1).  If the federal district court clerk fails to serve the notice of appeal, your notice of appeal is still effective.  FRAP 3(d)(3).


What Court Will Hear Your Appeal? An Overview of Nevada’s Appellate System

A typical appellate court system has three courts:  a lower court (district court), a court of appeals (the Nevada Court of Appeals or, in federal court, the Ninth Circuit Court of Appeals), and a supreme court (the Nevada Supreme Court or the United States Supreme Court). In a typical system, your appeal would go to the next court.  If you appeal from district court, you go to the intermediate appellate court.  If you appeal from the intermediate appellate court, you go to the supreme court and hope it accepts your appeal.

Nevada is not a typical appellate court system.  To understand which court will hear your appeal, you need to know the following:


Nevada did not get an intermediate court of appeals until January 2015.  Prior to 2015, all appeals went directly to the Nevada Supreme Court.  Because that was the only appellate court in Nevada, the Nevada Supreme Court heard every appeal.  And because Nevadans were spoiled by having their supreme court hear all of their appeals, they were reluctant to vote for the creation of an intermediate appellate court.

As a result, the Nevada Supreme Court was buried in appeals with a massive back log of cases, and litigants were constantly complaining about how long an appeal took to process.

The solution was to create an intermediate appellate court that did not automatically hear every appeal, but that could hear those appeals which are inherently time sensitive.  Thus, the Nevada Court of Appeals was born.

Despite the creation of the Court of Appeals, every appeal is still filed with the Nevada Supreme Court.  The Supreme Court then “pushes down” certain categories of appeals to the Court of Appeals.


Under NRAP 17(b), the categories of appeals that are presumptively assigned to the Court of Appeals are:

  • Criminal appeals in criminal cases that do not involve the death penalty, or conviction of a category A or B felony unless the challenge is to the sufficiency of the evidence or the length of the sentence.
  • Appeals from judgments in torts cases where the amount of the judgment is less than $250,000 (this does not include attorney fees and costs);
  • Appeals from judgments in contract cases where the amount at issue is less than $75,000;
  • Appeals from “postjudgment” orders in civil cases (i.e., attorney fees, new trials, motions to amend the judgment, etc.)
  • Appeals from cases involving statutory liens under NRS Chapter 108 (i.e., mechanics’ liens and other similar liens);
  • Appeals from administrative agency decisions, excluding decisions by Nevada’s taxing and water agencies, and/or the public utilities commission.
  • Family law appeals, except for proceedings for termination of parental rights or proceedings under NRS Chapter 432B;
  • Interlocutory appeals on motions for change of venue;
  • Interlocutory appeals from the grant or denial of an injunction;
  • Writ petitions challenging discovery orders or motions in limine;
  • Appeals from probate court (trust and estate litigation) if the estate or trust has less than $5,430,000 in value; and
  • Appeals from the foreclosure mediation program.

There are certain benefits to having a case presumptively assigned to the Court of Appeals.  For example, the Court of Appeals’ case load is slightly less than the Nevada Supreme Court’s, which means that your appeal may be resolved faster.

Furthermore, assignment to the Court of Appeals will not unduly delay the litigation.  An assignment to the Court of Appeals does not mean that you or your opposing party automatically gets a second appeal to the Nevada Supreme Court.  Any appeal to the Nevada Supreme Court from the Court of Appeals will only be accepted on a petition filed under NRAP 40B, and the acceptance of these appeals is purely discretionary with the Nevada Supreme Court.


Under NRAP 17(a), the Nevada Supreme Court presumptively hears the following cases:

  • Cases involving the death penalty;
  • Cases governing ballot or election questions;
  • Cases involving judicial discipline.
  • Cases involving attorney admission and discipline;
  • Cases involving approval of prepaid legal service plans;
  • Questions of law certified by a federal court under NRAP 5;
  • Appeals from Nevada’s tax and water agencies, and the public utilities commission;
  • Family law appeals involving termination of parental rights or that arise under NRS Chapter 432B;
  • Appeals that raise an issue of first impression (and particularly, those raising issues of first impression regarding a constitutional question)
  • Appeals that raise an issue of statement public importance;
  • Appeals that raise an issue in which there is a split of authority between published decisions coming out of two courts (i.e., state and federal), or the Court of Appeals and the Nevada Supreme Court.

The Nevada Supreme Court may also retain cases which are not presumptively assigned to the Court of Appeals, even if these appeals are not presumptively retained by the Nevada Supreme Court.  Did that confuse you?  If your appeal doesn’t fall within any of the categories contained in NRAP 17(a)-(b), there is a chance it will remain with the Nevada Supreme Court.  Remember, however, that the assignment of cases is discretionary and that discretion rests with the Nevada Supreme Court.  Once the Nevada Supreme Court assigns a case to the Court of Appeals, you cannot seek re-assignment to the Nevada Supreme Court. NRAP 17(d).


When you file your brief or writ petition, you must include a NRAP 17(d) routing statement that identifies the court you believe should hear the appeal.  In the statement, you must include whether the appeal falls within cases presumptively assigned to either court under NRAP 17(a)-(b).  If your case involves an issue of first impression, an issue of statewide public importance, or seeks a resolution to a split of authority, you should identify that in your NRAP 17 routing statement.  The Nevada Supreme Court is not omniscient.  They cannot be expected to know the full landscape of the law if litigants do not inform them of the need for a decision on certain issues.

Remember, as well, that even if your case is presumptively retained by the Nevada Supreme Court, you can always request assignment to the Court of Appeals in your NRAP 17 routing statement.

If your case has been assigned to the Court of Appeals, you will receive notification from the Nevada Supreme Court under NRAP 17(e).

If all this confuses you, just remember this one thing:  Your appeal will go up, and someone in a robe is probably going to decide it.

The Costs of an Appeal: What You Have To Pay to Play

You probably know you have a right to an appeal, but do you know what that right costs?  Here’s a breakdown of the filing fees associated with appeals:


To file an appeal, you have to pay a fee in the district court.  For appeals and cross-appeals to Nevada appellate courts, that fee is $250.  NRS 2.250.  For Ninth Circuit Appeals, the fee is $505.

If you wish to file an appeal with the United States Supreme Court, the fee to appeal is paid directly to the United States Supreme Court.  The cost to file a petition for a writ of certiorari, jurisdictional statement, or original action is $300. Sup. Ct. R. 38.


Remember, an appeal is not the only way that you can seek appellate review.  To file a petition for an extraordinary writ to the Nevada Supreme Court and/or Nevada Court of Appeals, you must pay a fee of $250 to the district court.  NRS 2.250.  However, there is no fee for criminal proceedings and habeas corpus petitions.

To file a petition for review or a petition for a writ of mandamus in the Ninth Circuit, you must pay a fee of $500.

To file an original action in the United States Supreme Court, you must pay a fee of $300.


In Nevada, following a decision by the appellate court, you can  seek  rehearing or en banc reconsideration.  The cost to file a petition for rehearing is $150.  NRS 2.250.

You can also file a petition for rehearing or a motion for leave to seek rehearing in the United States Supreme Court.  The costs for these rehearing petitions and/or motions is $200. Sup. Ct. R. 38.


There are miscellaneous costs which the appellate court may charge you of which you should be aware.  These include (1) copies, (2) certified copies, (3) duplication of audio files (i.e., oral argument), and (4) transcript examination fees.  These costs are generally minimal.  (For example, copies in both Nevada and the Ninth Circuit are 50 cents per page).

Both the Ninth Circuit and the United States Supreme Court will also charge you fees for returned checks, so make sure your bank account is current.


In certain types of appeals, costs are waived.  For example, the United States Supreme Court does not charge the above costs for appeals in: (1) Veteran’s re-employment cases; (2) seamen’s cases; and (3) cases initiated by persons who have been accused by the Court of Appeals for the Armed Forces.  Sup. Ct. R. 40.1; Sup. Ct. R. 40.2; and Sup. Ct. R. 40.3.

The most common appeals in which costs are not charged are those in which the appellant is granted leave to proceed in forma pauperis.  An appellant will granted leave to proceed in forma pauperis upon a finding that they cannot afford to pay the appellate fees.  NRAP 24; FRAP 24; Sup. Ct. R. 39.  In both Nevada and the Ninth Circuit, the appellant must first file a motion in the district court that sets forth their inability to pay the costs on appeal.  NRAP 24(1); FRAP 24(1).  The motion must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal.  Id.  If, and only if, the motion is denied by the district court, may the appellant  file a motion with either the Nevada appellate courts or the Ninth Circuit again seeking leave to proceed in forma pauperis. NRAP 24(5); FRAP 24(5).

In the United States Supreme Court, the party seeking leave to proceed in forma pauperis must file a motion with the Supreme Court which complies with the Ninth Circuit’s requirements (i.e., it must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal).  Sup. Ct. R. 38(1).

Although these fees may seem steep, they are a necessary evil for the orderly operation and administration of appellate courts.  If you are contemplating an appeal, or have a client contemplating an appeal, always be aware of what you have to pay to play.