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10 Rules of the Road for Trial Lawyers - Protecting Clients and Preventing Legal Malpractice (Rule 2)

Rule of the Road No. 2: A trial lawyer must be diligent.

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10 Rules of the Road for Trial Lawyers - Protecting Clients and Preventing Legal Malpractice (Rule 1)

Many of us have adopted and adapted Rick Friedman and Patrick Malone’s seminal Rules of the Road™ concepts for preparing and trying our tort cases1. In this article, I borrow the “Rules of the Road” metaphor to examine how we may better protect our clients and ourselves by both managing our practices and preventing legal malpractice claims. You have heard or read much of what follows before; none of it is new. However, from time to time it is helpful to remind ourselves of the basics of malpractice prevention and its corollary, client protection. Just as airline pilots review pre-flight checklists before every flight even though they have gone through the routine hundreds of times, it is helpful for experienced trial lawyers to review risk management checklists to remind us to do those things that we need to do to protect our firms and our reputations and, most importantly, to protect our clients.

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How to Determine Whether the Economic Loss Rule Bars Your Client’s Tort Claims

(The third in our series of three articles on the Economic Loss Rule in Colorado)

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6367 Hits

Contract Claims that Overlap With Tort Claims in Colorado Likely Bar the Latter

(The second in our series of three articles on the Economic Loss Rule in Colorado)

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2133 Hits

Diversity of Jury Pool Critical to Fair Outcomes

In a recent article by Charles F. Coleman, Jr., Esq., "Jury Duty: Why We Can't Afford to Dodge It," published by The Root, civil rights attorney Coleman argues why jury service is important, especially in African American communities, to achieving equality under the law. Coming off a recent federal jury trial, he noted with disappointment the lack of diversity within his jury pool, and moreover, the eagerness of the few diverse jurors to get out of serving. Coleman rightly observes that "[t]he Constitution grants us the right to a speedy trial in front of a jury of our peers. If our peers don’t participate, however, how can we ensure fairness?"

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Unique Challenges for Marijuana Businesses

Colorado companies involved in the marijuana business face a unique challenge. While other businesses can protect their brands and identities by filing for a federal trademark with the USPTO, the Lanham Act prohibits businesses in the marijuana industry from receiving trademark protection. That leaves Colorado's cannabis entrepreneurs in a tough spot--if they take the time and spend the money to develop a true brand identity, they have no easy protection from competitors copying their brand identity and passing off fake product as genuine. In the absence of federal trademark protection, Colorado businesses need to take advantage of the limited trademark protection available under state law. Ogborn Mihm, LLP is helping one such business defend its brand identity and trademarks in Boulder District Court.  For more, please visit: http://www.businessden.com/2015/08/12/pot-bb-takes-copyright-fight-to-court/. 

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1692 Hits

Insurance Bad Faith Claim Before Colorado Supreme Court

The Colorado Supreme Court heard argument on Thursday, June 4, 2015 in American Family Mutual Insurance Company v. Hansen, Case No. 14SC99, an insurance bad faith case. At the court of appeals level, the court held that an insurance company's characterization of a claim for coverage as "fairly debatable" is not enough to establish that the insurance company acted reasonably when it delayed or denied payment of insurance benefits. At trial, the jury found that the insurance company unreasonably delayed and denied coverage to its insured pursuant to C.R.S. 10-3-1115 and 10-3-1116, and the court thereafter awarded statutory penalties, including attorney fees, costs, and "two times the covered benefit," or $150,000 ($75,000 x 2). The court of appeals clarified that the appropriate statutory penalty is double the amount of benefits owed and for which payment was delayed--not double the amount of damages awarded by the jury. American Family appealed the ruling, which upheld the trial court's award of $150,000 plus attorney fees and costs.

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2066 Hits

Tort or Breach of Contract? Considering The Economic Loss Rule in Colorado

(The first in our series of three articles on the Economic Loss Rule in Colorado)

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6329 Hits

Tip of the Spear

It is with deep appreciation that I accept the honor of serving as President of CTLA for the 2014-2015 year. As we begin this year, I want to share with you why CTLA is important to me and why I believe in CTLA’s mission. At 1,200 members, CTLA is one of the smaller professional organizations in the State of Colorado. However, what we do has an outsized impact for good on the lives of our clients and fellow citizens. As trial lawyers, we are often the only advocates standing in-between our clients and those individuals and companies who would exploit, bully and intimidate and try to avoid accountability for careless behavior or outright misconduct.

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Victory in Court of Appeals for Small Business Owner

Ogborn Mihm, LLP partner Thomas Neville obtained a victory for their client, Visible Voices, Inc., over the Division of Unemployment Insurance in a recent Colorado Court of Appeals decision, Visible Voices, Inc. v. Industrial Claim Appeals Office of the State of Colorado and Division of Unemployment Insurance, 2014 COA 63.  The Division of Unemployment Insurance commenced an audit of a small business, Visible Voices, Inc., that provides instant speech-to-text translation known in the court reporting industry as Computer Assisted Realtime Translation ("CART").  The Division determined that Visible Voices owed back unemployment insurance taxes on 13 workers it determined were "employees" of Visible Voices.  Visible Voices appealed the determination, citing facts that showed the workers were independent contractors who undertook performance of engagements on a limited basis when the Visible Voices owner was unable to perform the services requested of her clients due to a scheduling conflict.  The case was heard by two different hearing officers, and twice by the ICAO before going up on appeal to the Court of the Appeals.  In the Court of Appeals decision, it sided with Visible Voices, holding that the ICAO inappropriately relied on a single-factor test to determine whether the pool of workers Visible Voices occassionally gave work to were independent contractors.  Notably, the Court of Appeals cited with approval to Softrock Geological Services, Inc. v. Industrial Claim Appeals Office, 2012 COA 97, for the proposition that a single-factor test is inappropriate to determine whether a worker is customarily engaged in an independent trade or business related to the services performed.  This Court of Appeals decision was bolstered a few days later by the Colorado Supreme Court's twin decisions in Industrial Claim Appeals Office v. Softrock Geological Services, Inc., 2014 CO 30, and Western Logistics, Inc. v. Industrial Claim Appeals Office, 2014 CO 31, which also rejected a single-factor test for purposes of determining whether an individual is an independent contractor under the Colorado Employment Security Act.

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3312 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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7187 Hits

Seven Ogborn Mihm attorneys named to the list of 2014 Colorado SuperLLawyers and Rising Stars

We are pleased to announce seven Ogborn Mihm attorneys have been named to the list of 2014 Colorado Super Lawyers and Rising Stars.

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3108 Hits

As Predictable as the Seasons

In the nineteenth century, the law of negligence in this country was particularly harsh. While the tort of negligence had developed its present formulation—imposing on all people a duty to act reasonably to prevent foreseeable injuries—the doctrine of contributory negligence led to harsh—often unfair—results. Under the common law doctrine of contributory negligence, in the event that the injured person was at fault—even to the slightest degree—he or she could not recover for his or her injuries. In other words, contributory negligence was a complete defense to a negligence suit.

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27772 Hits

Successful Sexual Harassment Finding

Clayton Wire of Ogborn Mihm LLP to represent the courageous young woman featured in this story (link below), Ms. Rachel Martinez.  Ms. Martinez was subjected to a demeaning, cruel, and sexually inappropriate workplace by her general manager for approximately a year.  Despite her complaints and the owner’s knowledge of the general manager’s sexual harassment of other employees, nothing was done.  We are pleased that the Colorado Civil Rights Commission has found in Ms. Martinez’s favor and that as a result we were able to achieve a favorable settlement.

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2741 Hits

Victory by EEOC is Example of Increase in Pregnancy Discrimination

The EEOC recently announced that a federal judge awarded a default judgment of $148,000 against a Milwaukee based medical staffing firm, based upon allegations by the firm’s former bookkeeper that she was subjected to pregnancy discrimination.  The EEOC’s suit alleged that the owner of HCS Medical Staffing, Inc. discriminated against Roxy Leger when he made offensive comments about her pregnancy and fired her because she needed to take maternity leave following the birth of her child.  In entering the default judgment the federal judge stated that the “circumstances leading up to HCS’s discriminatory termination of Leger were inherently humiliating and caused Leger substantial emotional distress.  The circumstances surrounding Leger's notification of termination were equally degrading.”  According to the EEOC, the judge summarized the alleged pregnancy discrimination, and found that HCS’s owner referred to Leger’s pregnancy as a joke; insisted that maternity leave last no more than a couple of days; suggested that Leger’s pre-natal appointments were a ruse for additional time off or for money; and gave Leger an offensive graphic diagram of a machine which would allegedly allow Leger to return from her maternity leave sooner.  With no prior warning or discipline, HCS terminated Leger’s employment and stopped her health insurance coverage while she was still in the hospital recovering from a Caesarean section.  Leger learned of her termination days later by certified mail.The EEOC’s victory on behalf of Ms. Leger is an exciting resolution of a compelling case, but unfortunately Ms. Leger is not the only woman who has suffered harassment or discrimination as a result of being pregnant.  In this rough economic climate, an increasing number of women who are expecting are continuing to work through their pregnancy.  This presence of pregnant employees has brought to light many instances of harassing or discriminatory conduct by employers.  Generally, pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which precludes discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.  Additionally, pregnancy caused impairments, such as gestational diabetes or preeclampsia, may be disabilities under the Americans with Disabilities Act (ADA), which requires an employer to provide reasonable accommodations such as leave or work modifications.  Moreover, under the Family and Medical Leave Act (FMLA), a new parent may be eligible for 12 weeks of leave to care for the new child.If you believe that your employer is harassing or discriminating against you because of your pregnancy, or the effects of your pregnancy, give Clayton Wire of Ogborn Mihm LLP a call to discuss your potential claims.
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New IRS Regulations Make Certain Damage Awards and settlements Non-Taxable

The IRS issued new regulations on January 23, 2012, regarding the taxation of damages for injuries or sickness that are received through settlement or judgment.  The new regulations, 77 Fed. Reg. 3106, maintain the previous rule that emotional distress damages received through settlement or judgment are taxable income.  However, if the emotional distress is attributable to a physical injury or physical sickness, then the damages may be non-taxable, and some medical expenses for emotional distress are also excluded.  Another change in the regulations strikes the old requirement that to be excluded the damages must be based on an action that sounds in tort.  Now, the regulations provide for much broader coverage of damages.  In an employment discrimination, harassment or retaliation context, this means that a plaintiff’s recovered damages, whether through settlement or judgment, may be non-taxable if those damages resulted from physical injury or physical sickness, or if they resulted from emotional distress that was caused by or exacerbated by physical injury or physical sickness.  While taxation issues may not be the first thing on an employee’s mind when they suffer workplace discrimination, workplace harassment, or retaliation for reporting wrongful activity, it is good to know that in some cases the damage settlement or judgment that results from these wrongful employment practices is non-taxable.  Employees who believe that they have been discriminated against, harassed, or retaliated against should contact Clayton Wire at Ogborn Mihm LLP immediately to discuss their potential claims.  Although we are not tax attorneys, we may be able to help wronged employees get to the point where they need to worry about tax matters.

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4825 Hits

Whistleblower’s False Claims Act Lawsuit Results in $6.3 Million Settlement by Denver Health for Medicare and Medicaid Patient Misclassification

Documents from the recently unsealed case of U.S. ex rel Curren v. Denver Health Medical Center et al. reveal that Denver Health has agreed to a $6.3 million settlement with the federal government.  This settlement will resolve claims alleging that Denver Health inappropriately classified patients as receiving “inpatient” care in order to receive higher Medicare and Medicaid payments. Whistleblower Joanne Curren will receive $818,000 as a result of the federal government’s settlement with Denver Health.  Ms. Curren was an accountant who noticed the inappropriate classifications and payments and reported these issues internally to her superiors.  Rather than remedying the inappropriate classification and self-reporting the overpayments to the government, Denver Health terminated Ms. Curren.  Ms. Curren’s Complaint asserted False Claims Act (FCA) claims for fraudulent Medicare and Medicaid payments, as well as a claim under the FCA for retaliation.  The FCA allows individuals to act as “relators” in claims against corporations that defraud the government, and provides substantial monetary incentives in the form of a percentage of the settlement or judgment.  The FCA also provides protection for whistleblowers, such as Ms. Curren, who engage in activity in furtherance of a FCA claim, essentially barring an employer from retaliating against an employee for pursuing a FCA claim.  Individuals who know of a violation of the FCA or have been retaliated against for reporting their employer’s fraud, internally or externally, should contact the experienced employment law team at Ogborn Mihm LLP immediately to discuss their potential claims.

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2397 Hits

Fired for Facebook Posts: Social Media Postings May Constitute Protected “Concerted Activity”

Under a series of recent decisions by the National Labor Relations Board (NLRB), employees who are retaliated against for posting comments on social media websites regarding work conditions may be protected by Sections 7 and 8 of the National Labor Relations Act.  Under these sections employees have the right to engage in concerted activity for the purpose of “mutual aid or protection,” regarding work conditions, and employers cannot retaliate against employees for exercising such rights.  This protection applies regardless of whether the employees are unionized or not.  In one particular case an employee called her boss a “scumbag” on her Facebook page after she had been reprimanded about a customer complaint, which drew various positive responses from her co-workers.  Such activity was found by the NLRB to be protected activity, as it concerned the conditions of the employee’s employment and was joined in by other employees.  The real issue with such postings is usually whether the posting is actually a comment regarding work conditions, or whether it strays into the unprotected area of “opprobrious” comments.  “Opprobrious” comments are often characterized as mere gripes and sudden outbursts against management.  However, regardless of the details, the NLRB’s recent decisions represent a shift in application of the decades old protections for concerted activity to a modern realm of organization and communication.  Facebook, Twitter, LinkedIn and other social media websites are the newest arenas for collective action of all sorts.  One need not look further than the recent Occupy movement and the revolutions across the Arab world for confirmation of this.  Thus it is not surprising that the NLRB would defend those that engage in protected activity in these arenas from illegal employment actions.  Individuals who have been terminated or otherwise retaliated against for work related postings on social media websites should contact Ogborn Mihm LLP to discuss their potential claims.

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2921 Hits

EEOC to do more with Less

On November 18, 2011, President Obama signed H.R. 2112, the Consolidated and Further Continuing Appropriations Act of 2012 into law.  In addition to continuing VA and FHA housing benefits and implementing a veteran’s employment program, this bill also included $360 million in funding for the Equal Employment Opportunity Commission (“EEOC”) for FY 2012.  This figure reduces the EEOC’s budget by $7 million from what the agency received in FY 2011 and is $25.5 million less than the EEOC requested.  This budget cut comes just a few days after the EEOC’s release of its Fiscal Year 2011 Performance and Accountability Report (“PAR”) on November 15, 2011.  The PAR reflects that although the EEOC is losing funding the number of discrimination charges that the agency deals with is steadily increasing.  In fact, in FY 2011 the EEOC received a total of 99,947 charges, which is the highest number of charges in the agency’s 46 year history.  This increased number of charges is part of a five year upward trend from the 75,768 charges that the EEOC had in 2006.  As the EEOC expects this trend to continue, with 108,000 charges expected in 2012, these new budget constraints may impose certain limitations on how the EEOC deals with its caseload.  There is a potential that EEOC will shift some of its focus to large-scale employment cases and to higher-stakes litigation.   During these rough economic times, even the agency that protects American workers from discrimination based upon their race, color, religion, sex, national origin, age, disability and genetic information, is taking a hit.  It is more important now than ever to have competent counsel standing by your side as you try to navigate an underfunded EEOC.  Individuals who believe they may have been discriminated against by their employer should contact Ogborn Mihm LLP as soon as possible to discuss their potential case.
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2199 Hits

Seventh Circuit Permits Whistleblower’s RICO Claims Based on SOX Violation to Go Forward

In an opinion that provides new ammunition for whistleblowers, the U.S. Court of Appeals for the Seventh Circuit permitted Michael DeGuelle’s claim for retaliation under the Racketeer Influenced and Corrupt Organizations Act (RICO) to continue.  According to his Complaint, Mr. DeGuelle had previously blown the whistle internally on tax law violations by his employer S.C. Johnson & Son, Inc., before he filed a claim under the Sarbanes-Oxley Act (SOX) with the Department of Labor.  Subsequent to this filing, Mr. DeGuelle was terminated in apparent retaliation for his SOX filing and whistleblowing activities.  Mr. DeGuelle filed a lawsuit alleging various state and federal claims.  Two of Mr. DeGuelle’s claims alleged that his former employer violated the federal RICO statutes based upon a pattern of racketeering activity, which includes violation of § 1513 of SOX.  Under this section of SOX, it is a crime to “knowlingly, with intent to retaliate, take[] any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense[.]” 18 U.S.C. 1513(e).   The Seventh Circuit stated that “[t]he language of § 1513(e) and logic imply that retaliatory actions always occur after a whistleblower reports others' wrongdoing,” and consequently the retaliation for such whistleblowing could be considered  part of a scheme to prevent disclosure, and thus a proper basis for a RICO claim.  This ruling permits whistleblowers who file a complaint under SOX and are retaliated against to take advantage of the increased damages provisions and attorney fees provisions of the federal RICO statutes.  Current or former employees who have blown the whistle against their employers, or who are contemplating blowing the whistle, should contact Ogborn Mihm LLP immediately to discuss their options.

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2216 Hits
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