Our News Archive
- Sep 24, 2015
Nevada Adopts Cumis-like Requirements
Today the Supreme Court of Nevada decided it will follow the lead of other jurisdictions and require insurers to hire two different defense attorneys for the insured, in certain circumstances. State Farm Mut. Auto. Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74 (2015) was unanimously decided to adopt this requirement after examining similar rules in other states.
We conclude that Nevada law requires an insurer to provide independent counsel for its insured when a conflict of interest arises between the insurer and the insured. Nevada recognizes that the insurer and the insured are dual clients of insurer-appointed counsel. When the insured and the insurer have opposing legal interests, Nevada law requires insurers to fulfill their contractual duty to defend their insureds by allowing insureds to select their own independent counsel and paying for such representation. We further conclude that an insurer is only obligated to provide independent counsel when the insured's and the insurer's legal interests actually conflict. A reservation of rights letter does not create a per se conflict of interest.
This is the first time the Supreme Court has applied this rule in Nevada and represents a shift in how some insurers may need to defend their insureds. We are examining the opinion’s implications and will be updating our website soon with a more in depth analysis.
- Jul 21, 2015
Lowry Presents About Spoliation for Nevada RIMS Chapter
Spoliation of evidence is sometimes known as the civil death penalty and can drastically impact the course of a case. Clients may encounter difficulty recognizing it early in the claim process, when its impact might be better mitigated. Recognizing this, the Nevada RIMS chapter invited shareholder Michael Lowry to present on this topic, ways front-line employees can be provided information to help get ahead of the game and how claim handlers might quickly identify the potential argument and then attempt to mitigate it.
“This is a frustrating topic for everyone involved because there is no set standard,” said Mr. Lowry. “But given the potential impact on each case, it is yet another factor for clients to consider when evaluating litigation.”
- Jul 20, 2015
Lowry Discusses How to Reduce Legal Spend
It is unlikely any lawyer has ever been told “your bill is not high enough.” Clients across the country are always looking for ways to reduce and better manage how much they spend each year on legal fees and costs. The biggest expense is rarely trial. Instead the biggest expense is typically the wide open discovery process in American courts. The expense of discovery can often dwarf the expense of trial.
Shareholder Michael Lowry blogs extensively about best discovery practices and teamed with a national client to discuss ways to limit discovery and its expense while still obtaining a fair result. Controlling Your Legal Spend by Limiting Discovery was published in DRI’s In-House Defense Quarterly’s summer, 2015 edition. The article discusses the statistical correlation researchers found between longer discovery periods and higher expenses. Even if an opponent will not voluntarily agree to limiting the scope of discovery, even just limiting the length of the discovery period could help better control cost.
“It seems counterintuitive that a lawyer would be advocating ways to reduce legal fees, but the reality of the ‘new normal’ in the legal industry means the old way of doing things no longer works. Hopefully those law firms that identify more efficient ways to serve their clients will be able to succeed in this environment,” said Mr. Lowry.
- Jun 18, 2015
Lowry Presents at CLM Transportation Conference
One of the hottest debates within the trucking industry is whether on-board video systems provide any value to companies and drivers. The CLM Transportation committee selected shareholder Michael Lowry to discuss this topic at its 2015 conference in Omaha. Mr. Lowry presented with Tamara Warn, Vice President of Risk Management for C&K Trucking and Tom McLaughlin, Director of Claims for Transport America.
The presentation was entitled “You Decide! Are On-Board Video Systems Worth It?” It covered the experiences other transportation segments, such as mass transit, have had with on-board video. The debaters discussed some of the positive reasons on-board video could benefit the industry, as well as potential concerns about its use.
“As new technologies emerge, the industry needs to evaluate how these technologies might be appropriately used to help mitigate risk,” said Mr. Lowry.
- Jun 15, 2015
Armstrong & Lowry Named to Mountain States Super Lawyers
Thorndal Armstrong Delk Balkenbush & Eisinger is proud to announce that James Armstrong and Michael Lowry were included among the 2015 Mountain States Super Lawyers. Mr. Armstrong was selected in the area of Personal Injury General Defense and Mr. Lowry was named in the Rising Stars category for product liability defense.
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. The designation is an honor, in that only 5% of all lawyers in each region are named to this list annually. Super Lawyers magazine recognizes quality in the practice of law by use of a rigorous selection process that incorporates peer recognition and professional achievement.
- May 14, 2015
Diamond Appointed to State Bar of Nevada's Continuing Legal Education Committee
Shareholder Kevin Diamond was appointed by the State Bar of Nevada Board of Governors to the State Bar’s Continuing Legal Education Committee. Lawyers in Nevada must complete a number of continuing legal education hours per year, including hours related to ethics issues. Over the years Diamond has presented legal education courses on various topics to Nevada attorneys, and has taught courses at local law firms. He also organizes and facilitates in house education seminars for his firm's legal education credits. “Our profession is constantly changing. Rulings by our appellate courts, or new statutes enacted by the Legislature, make it vital to an attorney’s practice to continue their education throughout their career,” said Diamond. “I look forward to serving the State Bar on this Committee,” he added.
- Apr 9, 2015
Lowry Discusses Franchising Risks
Franchising is one of the most popular ways to rapidly expand a business while also gaining the benefit of local market insight. A franchisor, like McDonald’s, will enter into a franchise agreement with an independent company. That company then operates a restaurant using McDonald’s trademarks. The arrangement helps the independent business get established and helps McDonald’s expand the availability of its products to its customers.
If the independent company is negligent and injures a customer, is McDonald’s also responsible? Shareholder Michael P. Lowry discussed that question and a split in case law across the country about how to answer it. In Franchising Risk Factors: Is the Franchisor Responsible for a Franchisee's Negligence?, published this week in USLAW Magazine. “When drafting franchise agreements and implementing trademark protections, it is important for the franchisor to be aware of the different standards that might be used to determine who is responsible for what,” said Mr. Lowry.
- Mar 27, 2015
Shareholders Strive for Gym Safety
Shareholder Kevin Diamond gave a presentation to a local circuit training facility regarding risk management and incident response. The presentation focused on how to deal with clients, waiver issues, health concerns during workouts and the handling of injury accidents. The two offered numerous legal and safety tips to protect the facility from incidents and ultimately claims or suits.
Diamond said “we wanted to ensure that the facility was aware of the legal ramifications of the unique safety standards for gyms, and that they knew how to comply for the safety of their clients."
- Mar 26, 2015
Lowry Presents & Publishes at CLM Annual Conference
The law changes quickly and Las Vegas shareholder Michael P. Lowry discussed two hot topics at the 2015 CLM Annual Conference in Palm Desert. First, Mr. Lowry led a panel discussion entitled E-Discovery & Transportation: The Changing Scope of the Post-Event Investigation. Post-event investigations once consisted primarily of photographs and witness statements. This evidence is merely the tip of the iceberg now as electronic data feature more and more in daily life. Mr. Lowry’s panel discussed the evolving nature of post-event investigations and tips for finding useful information. Only 30% of the proposed panels were accepted for this conference.
Second, Mr. Lowry was published in the spring, 2015 edition of CLM’s Litigation Management magazine, that debuted at the conference. The article, Resisting Assumed Negligence in Falling Merchandise Claims, was co-authored with Norma Lufkin, the now retired Director of Claims for Costco Wholesale. The article discussed the complexities that retail entities confront in defending falling merchandise claims where a plaintiff is permitted to rely upon res ipsa loquitur.
- Mar 2, 2015
ABA Publishes Lowry’s Article on Expert Witness Discovery
LAS VEGAS – Expert witnesses are a fact of modern litigation, for better or worse. In 2010 Federal Rule of Procedure 26 was significantly revised to limit the scope of discovery when expert witnesses were retained. The idea was that by limiting this discovery, the substantive merits of the case would not be impacted but litigation costs would be reduced. Have the rule changes lived up to expectations?
Shareholder Michael P. Lowry’s most recent article, How Far Do the Protections of the Rule 26 Amendments Go? was published in the ABA Section of Litigation, Pre-Trial Practice and Discovery Committee’s winter, 2015 newsletter and examined how federal courts have applied these rule changes since their enactment. Unsurprisingly, what some thought the rule changes meant is not necessarily how the courts are interpreting them. “As with any rule change, there is some lag between implementation and court interpretation. Attorneys need to be aware that what they thought the rules changes meant is not necessarily what the courts have determined they meant,” said Mr. Lowry.
- Feb 23, 2015
Lowry Discusses Spoliation in DRI’s For The Defense
LAS VEGAS – Spoliation is a thorn to many defendants. It is also a rapidly evolving area of law as technology changes and methods of evidence gathering seek to keep up. Courts are also struggling to keep pace, leading to often conflicting rulings, even from judges who share office space.
Shareholder Michael P. Lowry has been on the front lines of this issue as he represents retail and hospitality clients in Las Vegas, the country’s entertainment capital. His article A Retailer’s Guide to the Spoliation Quagmire was published in the February, 2015 edition of DRI’s flagship publication, For The Defense, and discussed the conflicts between various court rulings across the country. It also noted successes some retailers have achieved when the presiding judges were provided accurate information about the reality of modern claim management.
“I am very happy to contribute to For The Defense and especially the conversation about what role spoliation of evidence can or should play in civil litigation,” said Mr. Lowry.
- Feb 11, 2015
Lowry Discusses Questionable Subpoenas in DRI’s The Voice.
LAS VEGAS – If you are a party to a lawsuit, can your opponent subpoena you? This question can confound lawyers and clients alike because the time a client has to respond to a subpoena can be drastically less than other discovery options. It can also subject a client to multiple but conflicting obligations.
The Defense Research Institute has now published shareholder Michael P. Lowry's article discussing the problems subpoenas to parties can create. Is a Subpoena Duces Tecum to a Party Enforceable? was contained in today’s edition of The Voice, DRI’s membership newsletter. In the article Mr. Lowry discussed strategies for handling with these subpoenas and whether they are even enforceable.
- Feb 6, 2015
Lowry Presents on Spoliation at CLM Conference
LAS VEGAS – Spoliation of evidence continues to be a hot topic in many industries as they grapple with court rulings sanctioning defendants. This is a particularly prevalent problem to retail and hospitality establishments where evidence of the event may only be fleeting at best. As litigation costs continue to increase, what can a retailer do?
Shareholder Michael P. Lowry was selected to present on this exact topic at CLM’s 2015 Retail, Restaurant & Hospitality conference in Orlando. Mr. Lowry presented “Spoliation in Retail and Hotel Post-Incident Investigations: When is it Really Spoliation?” with risk and claim handlers from M Resort in Las Vegas and J.C. Penney Corporation. “Education about current court trends and effective preservation strategies is key,” said Mr. Lowry. “This area of law is evolving rapidly and it seems something changes every day.”
- Dec 19, 2014
Lowry and Lund Elected as Shareholders
LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger announces Michael P. Lowry and Kenneth R. Lund have been elected to join the firm’s shareholders beginning January, 2015. “We could not be happier to add these two young, outstanding lawyers to our group of shareholders,” stated founding shareholder John Thorndal. “Each has provided exemplary service to our clients while maintaining the highest standards of professionalism.” Firm president Craig Delk added “our firm has always focused on offering the tools young attorneys need develop and build their own practices. Michael and Ken are the latest to successfully capitalize on that opportunity.”
Lowry joined the firm in 2007 after graduating from Drake University School of Law where he was a member of the Journal of Agricultural Law. Since starting private practice, he has developed a successful practice representing retail and hospitality interests, transportation providers and product manufacturers. In 2012 he started the Compelling Discovery legal blog that the ABA Journal recognized in 2013 and 2014 as one of the top 100 legal blogs in the country. In 2014 Lowry also received a AV® Preeminent rating from Martindale-Hubbell and is an active member of USLAW, CLM and RIMS.
Lund, a graduate of the University of Utah S.J. Quinney College of Law, joined the firm in 2008 after a judicial clerkship with the Hon. John M. Iroz (Ret.) of the Nevada Sixth Judicial District Court and an externship with the Hon. William A. Thorne, Jr. (Ret.) of the Utah Court of Appeals. Lund’s litigation practice focuses on products liability, premises liability, professional liability, and real estate matters. Lund also maintains a robust appellate practice and has argued cases before the Nevada Supreme Court and the United States Court of Appeals for the Ninth Circuit. Lund enjoys an AV® Preeminent rating from Martindale-Hubbell. “Thorndal Armstrong is one of the oldest and most respected law firms in the state of Nevada,” explained Lund. “For four-and-a-half decades, this firm has provided outstanding service, vigorous advocacy, and sound counsel to its clients. It is an honor to be selected as a shareholder and to continue this tradition for decades to come.”
- Nov 24, 2014
ABA Journal Honors Lowry's Blog Again
LAS VEGAS - Today Michael Lowry’s blog Compelling Discovery was included among the country’s top 100 legal blogs for 2014, as determined by the editors of the ABA Journal. This is the second time the ABA Journal has honored this blog, the first time was in 2013. In announcing the honor, the ABA Journal used a reader’s description as to why the blog is helpful in his practice.
"Simple, practical and succinct," writes Jorge Marquez of the Puerto Rico Department of Justice. Las Vegas lawyer Michael Lowry "takes issues that every litigator has to deal with and gives a detailed analysis on how he has had to address these obstacles. Great starting point for issue spotting, regardless of what jurisdiction you practice in."
“I am just as stunned this year as I was in 2013,” said Mr. Lowry. “There are thousands of legal blogs discussing many issues. I am honored that the blog’s readership thinks enough of it to nominate it, let alone that the ABA Journal’s editors selected as one of the top blogs again.”
The ABA Journal is now allowing readers to vote for their favorites among the top 100 through December 19. Votes may be cast here.
- Oct 8, 2014
Lowry Earns AV® Preeminent Rating
LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger announces Michael Lowry has joined 15 other firm attorneys in earning an AV® Preeminent rating from Martindale-Hubbell. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the Bar and the Judiciary. Martindale-Hubbell Peer Review Ratings fall into two categories - legal ability and general ethical standards. Martindale-Hubbell indicates “[a]n AV® certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.”
"I am honored that my colleagues in this peer review process elected to assign this rating to me. It is a result of years of mentoring and guidance provided by those in the community and I truly appreciate it,” said Mr. Lowry.
- Sep 29, 2014
Diamond Teaches Young and Old
LAS VEGAS – Shareholder Kevin Diamond gave a presentation to a group of 40 attorneys regarding effective and efficient ways to find a resolution to a litigated case prior to trial. The presentation included a class on Nevada's mandatory, non-binding arbitration program, and provided the attorneys with continuing legal education credits.
The next day Diamond, who is a member of the Nevada high school mock trial board, presented a seminar to about 30 students and 10 teachers on how to cross-examine witnesses at trial. "I find that teaching is not only a way to give back to the community, but also serves as a refresher and helps me to become a better attorney," said Diamond.
- Aug 22, 2014
Lowry Discusses HIPAA Compliance in DRI YLC Newsletter
LAS VEGAS – Medical records are often the key to evaluating the potential exposure in any personal injury case. Medical records often, by definition, contain highly personal information about patients that is covered by HIPAA. HIPAA itself often creates uncertainty and roadblocks lawyers must overcome when obtaining needed medical information.
DRI’s Young Lawyers’ Committee published an article written by Las Vegas attorney Michael Lowry to address these problems. Getting the Medical Record Information You Need and Complying with HIPAA explores the four primary methods HIPAA creates to obtain medical information. “There should be no reason to fear HIPAA. If lawyers use the authority it provides appropriately, then the needed medical information can be obtained,” said Mr. Lowry.
- Jul 17, 2014
Lowry Publishes in DRI Trucking Committee Newsletter
LAS VEGAS – Commercial transportation providers are often a target of lawsuits and the firm’s transportation practice group is just as often asked to defend clients who are involved. Las Vegas attorney Michael Lowry, a member of the transportation practice group, published Defeating Claimants’ Attempts to Apply FMCSR to Intrastate Operators in the July, 2014 newsletter of the DRI Trucking Committee discussing one defense consideration.
Claimants often use perceived violations of the Federal Motor Carrier Safety Regulations as evidence that a transportation defendant has acted negligently. However, these regulations only apply to interstate operators and intrastate operators like mass transit systems may be exempt. “Just because a regulation exists does not mean it applies to all defendants,” said Mr. Lowry. “In some cases involving intrastate operations, transportation clients may be able to defend on the ground that the regulation does not apply to them.”
- Jul 11, 2014
Armstrong & Barkley Named to Mountain States Super Lawyers
Thorndal Armstrong Delk Balkenbush & Eisinger is proud to announce that James Armstrong and Thierry Barkley, were included among the 2014 Mountain States Super Lawyers. Mr. Armstrong was selected in the area of Personal Injury General Defense and Mr. Barkley for Insurance Coverage.
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. The designation is an honor, in that only 5% of all lawyers in each region are named to this list annually. Super Lawyers magazine recognizes quality in the practice of law by use of a rigorous selection process that incorporates peer recognition and professional achievement, Only a very small number of attorneys receive the Super Lawyer designation.
- Jul 9, 2014
Lowry Presents Webinar on HIPAA Compliance
LAS VEGAS – HIPAA compliance can frustrate even the most well conceived discovery plans. Medical information favorable to a client is worthless if it cannot be obtained. Recognizing HIPAA’s impact upon the discovery process, Strafford Publications asked Las Vegas attorney Michael Lowry to co-host a CLE webinar exploring how to obtain the information clients need while complying with HIPAA.
Insurance Litigation: Navigating Complex HIPAA Privacy Rules in the Discovery of Key Medical Records was presented to a national audience of lawyers and clients who routinely encounter these problems. “HIPAA should not be feared,” said Mr. Lowry. “Compliance does add a couple steps to the discovery process, but the regulations were designed with litigation in mind and can still permit clients to obtain the information they need to assess a case.”
- Jun 18, 2014
Lowry Featured in ABA Pretrial Practice & Discovery Committee Newsletter
LAS VEGAS – Las Vegas attorney Michael Lowry was featured in the Spring, 2014 newsletter of the American Bar Association’s Pretrial Practice & Discovery Committee. His article, The Problem of the Old Deposition and a New Party at Trial, discussed procedural complications that arise when attempting to use at trial a deposition taken before all parties are joined to a case.
“As lawsuits move through the system, parties are sometimes added to the case. The problem arises at trial when someone tries to use a deposition against a party who was not a party when the deposition was taken,” Mr. Lowry explained. “Clients want to avoid getting to trial and not being able to use their best testimony.”
Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.
- Feb 28, 2014
In Memoriam: James J. Jackson 1958-2014
LAS VEGAS – It is with profound sadness that Thorndal Armstrong Delk Balkenbush & Eisinger announces the passing of its President James J. Jackson. JJ expired unexpectedly in his sleep on February 28, 2014. A memorial service will occur on March 8, 2014 from 11:00 to 1:00 p.m. at Palm Mortuary's downtown location at 1325 N. Main St., Las Vegas, NV 89101. Information concerning the services and a virtual guest book are available here.
The manner in which JJ conducted his law practice and his lobbying efforts, the kindness with which he treated his friends and others, and the way he brought smiles to those surrounding him will forever be a great source of pride to the Thorndal Armstrong family. His legacy is one of love and respect.
Our thoughts and prayers are with JJ's many, many friends and family, especially his wonderful son Jeffrey and Jeff's fiance Monica, and his sister Mary. Anyone who spent more than two minutes with JJ learned how much he adored them.
- Feb 6, 2014
Lund Earns AV® Preeminent Rating
LAS VEGAS – Thorndal Armstrong Delk Balkenbush & Eisinger announces senior associate Ken Lund has joined 14 other firm attorneys in earning an AV® Preeminent rating by Martindale-Hubbell. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the Bar and the Judiciary. Martindale-Hubbell Peer Review Ratings fall into two categories - legal ability and general ethical standards. Martindale-Hubbell indicates “[a]n AV® certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.”
"Receiving this rating is a true honor from my colleagues of the bench and bar, and I look forward to many more years of spirited litigation as we collectively strive to efficiently, effectively, and ethically resolve disputes in our clients’ favor." noted Mr. Lund.
Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs. More than 50 percent of the firm’s attorneys have achieved an AV® Preeminent rating.
- Nov 25, 2013
Lowry Named to ABA Journal’s 7th Annual Blawg 100
LAS VEGAS – This morning the ABA Journal named senior associate Michael Lowry’s Compelling Discovery blog to their 7th Annual Blawg 100 list for top legal industry blogs. Blogs are nominated for consideration by their readers and selected by the ABA Journal’s editors from among the thousands of legal blogs online.
“This is a surprising honor,” said Mr. Lowry. “There are many good lawyers who write excellent blogs. I am humbled just as much to be nominated by Compelling Discovery’s readers as I am by the ABA Journal’s editors’ selection.” Compelling Discovery launched in June, 2012 and sought to discuss the discovery issues that commonly confront many lawyers. Since then the blog has posted at least once a week about best practices in discovery and the sometimes spectacular consequences when those practices are not followed.
Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.
For more information about Thorndal Armstrong Delk Balkenbush & Eisinger or Michael Lowry, visit us online at www.thorndal.com or contact us at (702) 366-0622.