Lioce, 124 Nev. at 19-20, 174 P.3d at 982 (requiring that the district court
make explicit findings about attorney misconduct under the specific
standards set forth within Lioce so as to enable appellate review).
Consequently, we ordered a limited remand for the district court to make
specific findings about the alleged attorney misconduct in an amended
order. In issuing an amended order that comported with Lioce's
requirements for specific findings, the district court again denied
Wackenhut's motion for a new trial.
Based on our de novo review of the alleged acts of misconduct,
we conclude that the district court's inaccurate categorization of a
disparaging remark under the Lioce categories and subsequent evaluation
of that misconduct under the wrong Lioce standard was an abuse of
discretion. See Lioce, 124 Nev. at 20, 174 P.3d at 982 (providing that a
denial of a motion for a new trial is reviewed for abuse of discretion and
whether an act constitutes misconduct is reviewed de novo); Bergmann v.
Boyce, 109 Nev. 670, 676-77, 856 P.2d 560, 564 (1993) (concluding that a
district court abused its discretion in misapplying the law). But we
further conclude that the abuse was harmless error. See NRCP 61
(providing that a defect in a proceeding only requires reversal if it affects a
party's substantial rights); Wyeth v. Rowatt, 126 Nev. „ 244 P.3d
765, 778 (2010) (stating that the party who alleged prejudicial error "must
show that the error affects the party's substantial rights so that, but for
the alleged error, a different result might reasonably have been reached").
The inaccurate categorization relates to when counsel for the
plaintiffs examined a witness and stated, "Judge, . . I think there may be
some coaching the witness while I'm asking him questions." In a verbal
motion for mistrial, Wal-Mart objected to the statement. With respect to
SUPREME COURT
OF
NEVADA
2
(0) 1947A
this act of misconduct, Wal-Mart's challenge of the statement served the
purpose of an objection for a Lioce analysis, as it invited the district court
to remedy the effect of the coaching statement. See Ringle v. Bruton, 120
Nev. 82, 94-95, 86 P.3d 1032, 1040 (2004) (providing that an objection's
purposes include indicating that a party takes exception to an act of
misconduct and conserving "judicial resources" by giving the district court
a chance "to correct any potential prejudice and to avoid a retrial'). The
district court denied the motion and admonished the jury that no coaching
occurred.
The coaching statement was an act of misconduct. It was an
unfounded allegation that disparaged opposing counsel by implying that
the testimony was being tainted by whoever allegedly coached the witness.
See Butler v. State, 120 Nev. 879, 897-99, 102 P.3d 71, 84-85 (2004)
(concluding, albeit in a criminal matter, that the prosecutor improperly
disparaged the defense counsel when suggesting, in front of the jury, that
defense counsel was being deceptive in presenting the case).
But despite the act of misconduct being raised in a verbal
motion for mistrial to the district court, which admonished the act, the
district court's amended order categorized the act as unobjected-to
misconduct. As a result, the district court applied to this misconduct the
wrong standard in Lioce—the plain error standard. Although the district
court applied the wrong legal standard to this act of misconduct, we
conclude that doing so was harmless error. The district court expressly
admonished the jury that no coaching occurred, and we presume that the
jury followed the district court's instructions. W. Techs., Inc. v. All-Am.
Golf Ctr., Inc., 122 Nev. 869, 875, 139 P.3d 858, 862 (2006).
SUPREME COURT
OF
NEVADA
3
(0) [947A
Inasmuch as Wackenhut argues that there was an abuse of
discretion as to the other alleged acts of misconduct on which it premised
its motion, we are unable to conclude that a new trial is warranted. The
record and Wackenhut's presentation of those purported abuses do not
indicate an effect on the proceedings that would be beyond harmless error.
Therefore, there was no need for a new trial See NRCP 61.
Accordingly, after having carefully reviewed the remaining
contentions on appeal and concluding that they lack merit, we
ORDER the judgment of the district court AFFIRMED.
• PMFiDimalb
J.
Gibbon's
J.
Don,,,s7
Ulu
J.
Saitta
cc: Hon. Mark R. Denton, District Judge
Craig A. Hoppe, Settlement Judge
Thorndal Armstrong Delk Balkenbush & Eisinger/Las Vegas
Hutchison & Steffen, LLC
Mont E Tanner
Phillips, Spallas & Angstadt, LLC
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) I947A