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Nicole practices primarily in the areas of business litigation, including breach of fiduciary duty, breach of contract, and insider misconduct matters, and construction litigation, including construction defect cases.

The When, What and How of Litigation Holds

In 2003, “litigation holds” became one of the hottest topics in e-discovery. This shift was due to United States District Court Judge Shira A. Scheindlin’s decisions in Zubulake v. UBS Warburg. Looked at collectively, the judge made clear that, once a party reasonably anticipates litigation, it must take special actions to preserve relevant electronic evidence.  Colorado courts take the same approach. See, e.g., Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009)(duty to preserve evidence arises when party "knew, or should have known, that litigation was imminent").

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Fiduciary Duties Involved in Colorado Businesses; Part I - The Basics

Colorado offers a lifestyle that is attractive to many new businesses, and in recent years, we have seen an influx of residents and start-ups seeking to take advantage of all this state has to offer. But business people—and particularly friends entering into business on a handshake or “back-of-the-napkin” deal—should take care to draft business agreements up front in order to avoid the lawsuits that may ensue when disputes arise down the line. One particular area of concern that often times leads to the break-up of a business is a breach of fiduciary duty. But what is a fiduciary duty and how do you know if you are violating it? This series will first address the basics of fiduciary duties, the sources from which those duties come, and the enforcement of those duties. Then, each subsequent Part will address what those duties entail in relation to a partnership, limited liability company, and corporation.

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1187 Hits

Competing with Non-Compete Provisions

You are married to your job. You are what you do. There is truth to the idea that we all identify ourselves with the profession we have chosen. So, what happens when someone tries to limit your ability to do that job? Most often, these limitations are presented in the form of a non-compete clause in a contract. Colorado does not look favorably on restricting competition or a person’s ability to work, and our legislature enacted law that defines very narrow exceptions to the general rule that covenants not to compete are void. Colorado Revised Statute Section 8-2-113 states that a contractual restriction on a person’s ability to perform “skilled or unskilled labor for any employer” is automatically unenforceable unless it falls into one of four categories.

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728 Hits

COLORADO’S NEW LAW ON PROVING COLLECTIBILITY IN LEGAL MALPRACTICE ACTIONS

When clients are harmed by the malpractice of a lawyer, they oftentimes face a second, potentially more complicated lawsuit. The plaintiff-clients must prove the underlying case against the original defendant(s) in which the lawyer committed malpractice, and they must prove the negligence of the defendant-lawyer in order to win the malpractice action. While Colorado courts have long recognized that the solvency or insolvency of the underlying defendant must be proven in a legal malpractice case, the courts had not, until recently, answered the question of whether that responsibility lies with the plaintiff or defendant lawyer.

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OGBORN MIHM LAWYERS’ ARTICLE CITED TO BY COLORADO COURT OF APPEALS

The Colorado Appellate Court, in a written opnion, recently cited to a law review article written by Mike Cross and Nicole Quintana analyzing the issue of proving collectibility in legal malpractice actions. The appellate case is Gallegos v. LeHouillier, 2017COA35, found at https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA0724-PD.pdf. The law review article, “Your Place or Mine?: The Burden of Proving Collectibility of an Underlying Judgment in a Legal Malpractice Action,” 91 Denv. U. L. Rev. Online 53 (2014), can be found at http://www.denverlawreview.org/storage/online-article-pdfs/2014/Your%20Place%20or%20Mine_FinalFormat.pdf.

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Colorado’s New Law On Proving Collectibility In Legal Malpractice Actions

When clients are harmed by the malpractice of a lawyer, they oftentimes face a second, potentially more complicated lawsuit. The plaintiff-clients must prove the underlying case against the original defendant(s) in which the lawyer committed malpractice, and they must prove the negligence of the defendant-lawyer in order to win the malpractice action. While Colorado courts have long recognized that the solvency or insolvency of the underlying defendant must be proven in a legal malpractice case, the courts had not, until recently, answered the question of whether that responsibility lies with the plaintiff or defendant lawyer.

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1400 Hits

Your Place or Mine?: The Burden of Proving Collectability of an Underlying Judgment in a Legal Malpractice Action

While burdens of proof at trial do not necessarily equate to the awkwardness of a come-on during a date, the question “your place or mine” is still relevant to both, at least in Colorado. This article examines the seemingly unanswered question lingering in Colorado law as to whether a legal malpractice plaintiff bears the burden of proving collectibility of an underlying judgment in order to establish a prima facie case or whether a defendant bears the burden of proving collectability as an affirmative defense. Is it your place to prove it or mine?

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