Too often, people assume that only federal courts hear big lawsuits. That is not the case. Large, complex cases are filed regularly in state court, e.g., breach of contract, unfair or deceptive trade practices, and tort cases. It is important to know the ins and outs, not only of your local federal district court, but also your state court system. This post focuses on Nebraska state courts and what to know, what to do, how to proceed if you are sued in one of its courts.
Below we address common questions we get from clients who have been sued in any jurisdiction. We start with the fact that every local court system has its share of quirks and unique practices and that experienced legal counsel can help clients navigate what are often strange waters. Although removal for federal court should be on the checklist for considerations for any party being sued in state court, the discussion below focuses on proceedings in Nebraska state court—that is, cases that have not been or cannot be removed to Nebraska’s federal courts.
Is Nebraska divided geographically into distinct districts or divisions?
Generally speaking, Nebraska has a two-tier trial court system: the district courts and the county courts. The district courts are courts of general jurisdiction. The county courts have limited jurisdiction that includes small claims, juvenile law matters, probate, guardianship, and conservatorship. The two courts have concurrent jurisdiction over civil cases involving $53,000 or less.
The district courts and the county courts are divided geographically into 12 judicial districts. The districts vary in size, ranging from a single county in the most populous parts of the state to much larger territories that can include more than a dozen counties in the rural parts of the state. Because district courts and county courts have different jurisdictions, they often have different caseloads, even in the same geographic area. In some instances, the geographic boundaries of the district court can differ from the geographic boundaries of the county court. This matters most when moving from one court to the other – for example, on appeal from the county court to the district court. It is always important to note and to understand in which judicial district your case has been filed.
Nebraska has a variety of other courts, including problem-solving courts and a separate workers’ compensation court. This article will focus on cases in district court in Nebraska, and, in particular, the District Courts for the Third and Fourth Judicial Districts, which include Lincoln and Omaha, respectively, the state’s two most populous cities and the districts where a party is most likely to be sued. Locally, for example, you will hear districts referred to as “District 3” or “the Third Judicial District.” The latter use is probably more common, but both uses can be correct.
Who are the judges to whom my case could be assigned?
By law, to be a district court judge, a person must be at least 30 years old, a U.S. citizen, admitted to practice law in Nebraska, engaged in the practice of law in Nebraska for at least five years, and a resident of the district to be served. The residency requirement applies at the time of actual appointment and during the term of service, so it is not uncommon to see attorneys move to serve on the bench.
District court judges are appointed by the Governor, after being nominated by judicial nominating commissions comprised of attorneys and non-attorneys, so the statutory requirements identified above are rarely an issue. Instead, district court judges are generally respected, experienced attorneys. Looking at the district court judges in the third district as an example, there are two career prosecutors, three former prosecutors who also worked in private practice, and three attorneys who spent their careers in private practice. This is fairly typical for Nebraska – a mix of prosecutors and private practitioners, with a slight weighting toward former government attorneys.
In total, there are 56 district court judges. If you’re being sued in Nebraska, information about the judges is available here.
Does Nebraska allow for the recovery of punitive damages or attorney’s fees?
In Nebraska, the answer for both punitive damages and attorneys’ fees is generally “no.” Courts have held that the recovery available in civil cases is compensation for the injury sustained, and punitive, vindictive, or exemplary damages are not allowed.
As a general rule, Courts have also held that attorneys’ fees are not recoverable. This is true even if a contractual provision provides for attorneys’ fees, but this general rule is subject to an increasing number of exceptions. As new laws are enacted, they frequently include provisions for attorneys’ fees, and the courts will defer to the legislature when attorneys’ fees are addressed expressly in statute.
Do I need to hire local Nebraska counsel if I have a case in Nebraska state court?
The answer to this question is probably “yes.” It involves both statutory and practical considerations.
Legally, Nebraska sets up a system of reciprocity: if another state allows a Nebraska attorney to practice “without a local attorney being associated with such attorney,” then Nebraska allows that state’s attorneys to practice without being associated with a Nebraska attorney.
If there is no such reciprocity, Supreme Court Rule § 3-122 governs the admission pro hac vice of attorneys admitted in other jurisdictions. It requires that the out-of-state attorney “has associated and is appearing with an attorney who is a resident of Nebraska, duly and regularly admitted to practice in the courts of record of this state, and upon whom service may be had in all matters connected with the action.” The “associating attorney, or his or her designee, shall sign the motion for admission pro hac vice, all pleadings, motions, and papers filed in the case, as well as personally appear at all proceedings before the court, unless excused by the court.”
Practically speaking, whether you come from a state that benefits from Nebraska’s reciprocity or not, it is always a good idea to explore local counsel options. Nebraska has its share of unique practices, and it does not have as many codified procedures as many other states. It is not necessarily an easy jurisdiction to read the local rules and have a clear step-by-step sense of how a case will proceed.
Additionally, e-filing in Nebraska is currently available only to attorneys licensed in Nebraska. The expectation is that an attorney admitted pro hac vice will file through his or her associating attorney. Until this changes, hiring local counsel simply makes sense logistically.
Are there any local discovery rules of which I should be aware?
The Nebraska Supreme Court maintains Rules of Discovery in Civil Cases. They follow the structure and, in most cases, the substance, of the Federal Rules of Civil Procedure. They do, however, depart from the Federal Rules in a few important ways:
Default Limits on Discovery: In Nebraska, there are generally no default rules governing the number or frequency of uses of methods of discovery. The exception to this general rule is interrogatories. Comments to the Rules of Discovery in Civil Cases state that interrogatories “are particularly subject to being abused or improperly used,” and, therefore, the rules provide that no more than 50 interrogatories can be served on any party, unless otherwise permitted by leave of the court. The rules state that each question, sub-question, or subpart counts as one interrogatory.
Timing of Discovery: Unlike the Federal Rules, Nebraska does not require initial disclosures or other preliminary sequencing steps for discovery. Instead, parties can get right into it. Any party can take the deposition of any person once an action is filed, except plaintiffs, who must wait either 30 days after service of the summons or until the defendant serves discovery requests. Similarly, interrogatories can be served on any party with or after service of summons upon that party or, in the case of the plaintiff, once the plaintiff’s action commences.
Proportionality: Nebraska state court does not have rules governing proportionality, a fundamental concept governing discovery in federal court. Particularly in a world of e-discovery and increasingly voluminous sets of relevant documents, this can have major consequences on the burden and costs of discovery.
When in doubt, meet and confer. The Rules of the District Court for the Third Judicial District, for example, state that the court will not hear any discovery disputes, unless the parties have made reasonable efforts to resolve the dispute, including through personal consultation. Working with opposing counsel is also beneficial because, like the Federal Rules, Nebraska’s Rules on Discovery in Civil Cases grant parties broad discretion and authority to stipulate to changes to the rules or procedures governing discovery.
Ultimately, all of this is subject to change. At the time of writing, the Nebraska Supreme Court has constituted a Civil Justice Reform Commission to consider ways to improve the state’s civil justice system. The commission’s work might result in changes to discovery or other rules of civil procedure or standards of practice. We are watching this issue and will provide updates accordingly.
Do judges regularly hear oral arguments or otherwise require the parties to appear in court?
Compared to many jurisdictions and unlike Nebraska federal court, yes, Nebraska practice can require frequent court appearances. Much of this is the result of its motions practice.
There is usually no set of procedures for briefing motions in Nebraska – no sequenced timing or rule regarding the movant’s brief, a brief in opposition, and possibly a reply. Instead, when a party files a motion, it need only file its brief “prior to” or days before the hearing. This means that the opposing party will often not have had a chance to respond. The parties will appear on the hearing date, the party wishing to respond will ask for a continuance of the hearing date and leave to respond, and then the parties will return to their corners for further briefing and possibly further appearances.
How many pages do I have for my brief?
Briefing in Nebraska district court is not governed by any set of procedural rules. You can check a judicial district’s local rules or a judge’s rules, but even these do not usually include guidance on briefing, like you might see in other jurisdictions – no rules governing specific page limits or a set timeline for a brief in support, brief in opposition, and reply brief (if allowed).
How long will it take to get my case to trial?
Nebraska maintains case progression standards for different types of cases in different types of courts. For civil cases in district court, these standards provide that 90 percent of cases should reach disposition in one year and 98 percent of cases should reach disposition in 18 months. But these standards relate to the time to “disposition,” and “disposition” obviously changes from case to case – dismissal, summary judgment, trial.
Overall, courts do their best to meet the case progression standards, including identifying complex cases headed to trial and ensuring that they are scheduled and attended to in a way to meet the progression standards. Some of the biggest, most complex cases, though, might simply fall in the 2 percent that exceed 18 months to disposition because, like many other states, Nebraska’s judicial branch makes the most of limited resources.
If you are in Douglas County, for example, which includes Omaha, the district court currently has 16 judges (this is scheduled to increase to 17 judges in July 2021). This is more than any other judicial district in the state. Based on the court’s caseload, however, it is estimated that the court needs 21 judges, not 16. This makes for busy judges and potentially some delays.
Alternatively, in rural parts of the state, two judges might be responsible for covering as many as 16 counties. This requires a lot of travel time “riding the circuit” and managing scarce resources. In some cases, the judge might be at the local courthouse only occasionally for hearings or trial, simply due to his or her other responsibilities at other courthouses in the district. Just like the overcrowded dockets in the busiest parts of the state, this can produce waiting periods, as well.
Is mediation required?
Mediation is not required. Nebraska has recognized the importance of mediation and expressed a preference for mediation in many contexts, and the law provides for referral of civil cases to mediation. But mediation is not required (except in certain limited circumstances, such as when parents cannot agree to a parenting plan).
What time do I need to file documents due to the court on a given day?
This depends on the type of filing. Nebraska uses e-filing for any pleadings required to be filed with the court clerk. If you are familiar with the federal CM/ECF system, the same basic rule applies in Nebraska: “all documents electronically received by the court clerk by 11:59:59 p.m. local time shall be deemed to have been filed on that date.” If you are using local counsel to make a filing, it is a best practice and good reminder to coordinate with local counsel to ensure they are available to file electronically at a given time, particularly if the filing will be made after close-of-business.
Original briefs, however, are presented to the judge and not filed with the clerk. Therefore, they can be subject to different timing requirements. For example, some districts or some courts will require that briefs be filed at the time of the relevant hearing, as opposed to on a specific date. This means that the timing for filing briefs can be case- or motion-specific.
If you’re being sued in Nebraska state court, know that contacting local counsel is probably your first step. It is a good idea, given our local practice and procedures, and, more importantly, it is probably a requirement for out-of-state litigants. With a basic understanding of the ins and outs Nebraska practice, you can start to build out your pretrial and litigation strategies and truly commence your defense.
Hilgers Graben PLLC is here to help. If you or your company are being sued in Nebraska state court, contact our team here or call us directly at 402-218-2106.
About Hilgers Graben
Hilgers Graben is a nationwide litigation boutique specializing in complex commercial and intellectual property litigation and discovery counsel services. The firm uses geo-arbitrage and innovation to provide superior litigation and discovery counsel services while driving down costs for its clients. The HG EDGE discovery counsel team has pioneered unique techniques and process improvements to dramatically drive down the cost of discovery.