Appellate

Appeals Are Not An Afterthought

An appeal starts long before a case ends in the trial court. When you hire Ogborn Mihm, you’re not just hiring the best trial lawyers – you’re hiring a complete team of legal strategists who are looking for ways not just to win your case, but also for ways to ensure success on the appeal that may follow. Our appellate lawyers work with your trial team to find, right, or preserve errors the judge makes to give you the best chance on appeal. If your case is appealed, you will be working with one of the most experienced and well-respected appellate teams in Colorado who clerked for judges in the Colorado Supreme and Appellate Courts and the U.S. Court of Appeals for the Tenth Circuit. But our appellate lawyers don’t just write briefs, they regularly argue cases in front of the appellate courts.

A New Perspective

Our appellate lawyers often take over a case from another law firm to preserve a win or help a client overcome a difficult loss. The fresh perspective we bring can be the difference in helping you preserve a win or reverse a loss. It can be difficult for an attorney to be critical of their own work and take a truly unbiased look at a case that is facing an appeal.  Our appellate lawyers can find the little errors, the obscure case, or make the argument no one else has thought of that can make the difference in the complex and nuanced legal world of appeals.  Don’t trust your appeal – likely the last chance you have – to a lawyer who has done an appeal here or there. Instead, hire the appellate lawyers at Ogborn Mihm who have made a name in the appellate courts and know how to win.

Key Appellate Victories

• Baca v. Colorado Dept of State, 140 S. Ct. 2316 (2020); Baca v. Colorado Dept of State, 935 F.3d 887 (10^th 2019); Baca v. Hickenlooper, No. 16-1482 (10th Cir. Dec. 16, 2016). In 2016, Jason Wesoky sought to allow members of the Electoral College to vote their conscience. After many twists and turns involving an almost-never-litigated clause in the U.S. Constitution, the U.S. Supreme Court ultimately disagreed and found that members of the Electoral College are required to vote however the state instructs them. The case settled a question about the Electoral College that hadn’t been addressed since the adoption of the U.S. Constitution.
• Bailey v. Duling, 2013 S.D. 15, 827 N.W.2d 351—After a South Dakota jury found a local real estate agent and financial advisor at fault for taking advantage of his elderly clients and obtaining their large ranch for a fraction of its fair market value, Thomas Neville defended the jury’s verdict before the South Dakota Supreme Court–prevailing on six of the seven issues raised by the Defendant.
• Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784 (10^th 2020) (en banc) cert denied June 28, 2021. In a rare en banc opinion – the Tenth Circuit grants the fewest en banc petitions in the nation – Jason Wesoky successfully argued in the Tenth Circuit that disabled employees don’t have to prove they were fired, demoted, or suffered any other “adverse employment action” in order to assert a claim against their employer that the employer failed to reasonably accommodate their disability.
• Genberg v. Porter, 882 F.3d 1249 (10^th 2018): In a case that won the Colorado Plaintiffs Employment Lawyers Association’s Case of the Year award, Clayton Wire and Jim Fogg achieve a victory for our whistleblower client, overturning a district court’s grant of summary judgment in a Sarbanes-Oxley Act (SOX) retaliation case. The appellate opinion set precedent in the 10^th Circuit regarding the proper standard for whistleblower protected activity, the proper analysis of the “contributing factor” causation standard, and waiver of defenses.
• Kissinger & Fellman v. Affiniti Colorado LLC, 2019 COA 147, denied – Addressed an important question of first impression in Colorado: does the attorney-client privilege survive the dissolution of a corporate client.  Delivering a victory to Ogborn Mihm, LLP’s client, the Court answered that question: “No.” James E. Fogg on the briefs; Thomas Neville argued
• Nunn v. Mid-Century Ins. Co., 244 P.3d 116 (Colo. 2010), as modified on denial of reh’g (Jan. 10, 2011)—Recognized that Colorado insureds who have been sued have the right to protect themselves from the devastating consequences of their insurers’ bad faith by entering into an agreement in which the insured stipulates to entry of judgment in excess of their policy limits; assigns their right to sue their insurer for bad faith to the injured person; and receives a covenant from the injured person that they will never execute on the stipulated judgment.
• Protocols, LLC v. Leavitt, 549 F.3d 1294 (10^th 2008). Addressing an obscure provision in Medicare law, Jason Wesoky successfully argued his client, a company that helped structure the settlement of workers’ compensation claims for injured workers, had the right to sue the Department of Health and Human Services who had misinterpreted the Medicare laws. The case cleared the way for structured settlements that protect both victims and Medicare.
• Rudnicki v. Bianco, 501 P.3d 776 (Colo. 2021). Acting as appellate counsel, Thomas Neville and Clayton Wire overturned long-standing precedent to allow injured children in Colorado to recover medical expenses incurred during the time injured children are minors. Kylie Schmidt co-authored the amicus brief in support on behalf of CTLA.
• United States v. Carr, 851 Fed. Appx. 848 (10^th 2021). In one of the first successful First Step Act appeals for compassionate relief in the Tenth Circuit, Jason Wesoky secured early release from prison for an indigent client so she could take care of her disabled son.
• Writing as amicus curiae in Kendrick v. Pippin, 252 P.3d 1052 (Colo. 2011) and Bedor v. Johnson, 2013 CO 4, 292 P.3d 924, Thomas Neville argued that Colorado should reject the sudden emergency doctrine, a common law defense to negligence that was often abused by the defense bar to excuse dangerous driving in wintery conditions. The sudden emergency doctrine provided that “a  person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.”  The effect of the doctrine, however, was that it was given in every car crash case involving icy or snowy roads.  In Kendrick, the Colorado Supreme Court held that the trial court erred in giving a sudden emergency instruction because the defendant driver’s own testimony demonstrated that she anticipated encountering icy roads.  In Bedor, the Colorado Supreme Court concluded that the doctrine was of minimal utility since Colorado had rejected the common law doctrine of contributory negligence, and that the danger of doctrine misleading a jury outweighed its minimal value.

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