Litigation

Recovered memory therapy continues to be a controversial topic, with experts debating about whether it is valid. As a legal matter, this controversy has slowly spilled over into an increased risk of liability for the therapist who chooses to use the technique. More and more states are holding that parents of children who recover memories of sexual abuse can sue the child’s therapist because the therapist has helped to create false allegations against them. Michigan is the latest jurisdiction to affirm the right of a child’s parent to sue the child’s therapist.

The Colorado Supreme Court has been hard at work, handing down multiple changes to the Colorado Appellate Rules. Some changes were significant. Others were minor. The most notable change to the Colorado Appellate Rules was to Rule 3.4: Appeals from Proceedings in Dependency or Neglect. For cases filed after July 1, 2016, appeals from these proceedings will get a major overhaul. Here are some of the significant changes in the rules.

The Colorado Supreme Court clarifies that the Twombly/Iqbal pleading standard applies in Colorado. This post analyzes the case, Warne v. Hall, 2016 CO 50, and how the bar for surviving a motion to dismiss has risen.

A multi-chapter resource about things to consider before filing a lawsuit: doing a cost-benefit analysis, identifying and then weighing the pros and cons, and more.

Should I file an appeal? Many considerations come into play when making this decision, and here are some thoughts that may steer you in the right direction:

Imagine you see the notice come in from the court on your latest case: Defendants’ motion for summary judgment has been granted and your client’s case is dismissed with prejudice. Your client has just lost the entire case—a case that you had litigated well. After dealing with the disappointment and post-judgment motions, you really feel it would be best for you to call it quits. 

An appeal can be a procedural maze—and if you make the wrong turn, occasionally there is no way out. In one case, the appellant lost her way in confusion over the magistrate rules.

A multi-chapter resource about appeals: for most direct appeals to the Colorado Court of Appeals, a notice of appeal is your gateway to the Court. The NOA must be filed within 49 days of the date of the entry of the judgment from which the party appeals. Seems easy, right? Unfortunately, many an unsuspecting attorney has found themselves in the horrifying position of having to explain to their client how they weren’t able to figure out such a “simple” calculation.

Responses to: Why would my case go up on appeal? Do I have to respond to an appeal? How do I find an appellate attorney? What happens after the Notice of Appeal is filed? and more... 

Although it is important that an appellate brief be artfully drafted, victory on appeal may turn more on whether trial counsel had the forethought to ensure that an issue was preserved. This article reviews the general rules regarding preservation and explores the narrow exceptions to that rule that have been recognized by Colorado appellate courts. It then provides some practical suggestions for preparing for appeal during trial and beyond. 

This article was originally published in the Pikes Peak Lawyer, October 2015, the official publication of the El Paso County Bar Association. Read More→