January 31, 2025 • 58 mins
Text messages, complete with poop emojis, revealed that a charter school’s board members targeted the executive director because they just didn’t like her. “It was like ‘Mean Girls,’” recalls Jason Wesoky, who, with colleague Clay Wire, represented the director.
Tune into this case breakdown with host Keith Fuicelli as Jason and Clay describe how they framed the contract dispute as a set-up by board members hoping to boot their client off the job. In the end, she won a jury verdict of about $950,000.
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Episode Snapshot
- When he realized that he was making more as a bartender than he would as a political scientist or journalist, Clay turned to law school.
- Jason grew up in the legal world and went to college knowing he wanted to be a lawyer.
- Clay and Jason represented the executive director of a Colorado charter school when a new board refused to honor her contract.
- Because the team couldn’t bring tort claims against a governmental entity, they focused on a contract claim for economic damages through the Colorado Governmental Immunity Act.
- Their client used the state’s social security replacement for public employees to draw on her retirement and then return to work under the contract. The defense argued that their client had, in fact, retired and that she wasn’t honoring her contract.
- Text messages provided through...
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Welcome to the ColoradoTrial Lawyer Connection,
where Colorado trial lawyers shareinsights from their latest cases. Join me,
Keith Elli. As we uncoverthe stories, strategies,
and lessons from recent Colorado trialsto help you and your clients achieve
justice in the courtroom. Thepursuit of justice starts now.
(00:21):
Welcome back everyone.
Keith Fuselli here for another episodeof the Colorado Trial Lawyer Connection
Podcast.
Super excited this week to have ClayWire and Jason wi Soki from the law
firm of a mim.
And what I'm really excitedabout this episode is this is a
very sort of cantillating,
(00:42):
very unique fact scenariothat deals with a
breach of contract. And normallypeople think breach of contract.
That doesn't seem verytantalizing in this case it
was,
and I'm really curious totalk to you both about how you
formulated the story of thiscase and presented it in a
(01:04):
way that made jurors care.
But before we jump into that,clay, let's start with you.
Tell us a little bit about yourself.How did you come to be a trial lawyer?
All right, well, so Igrew up here in Colorado.
I'm one of the few Coloradonatives around still.
I grew up in a little town just past alittle town called Red Feather Lakes up
(01:26):
past Fort Collins. I don't haveany connections to law really.
My parents were a bit of hippies.
We lived out in the middle of nowherein a log cabin, no electricity,
no running water. It was avery weird way to grow up,
but I didn't have any real connectionto a legal community. Right.
I didn't have any mentorsor anything like that,
so it wasn't even on my radarfor a long period of my life.
(01:48):
I ended up going to college tobecome a journalist and so I did
all of that.
Then I got interested in poli sci andended up double majoring in journalism and
sci. It turns out though,
that I was making more money bartendingthan I would either being a political
scientist or a journalist, andso decided to go to law school.
(02:10):
Where did you do yourundergrad? In my mind,
I'm thinking it had to be Boulder justbased upon this story, but am I wrong?
Was it Boulder or wherewas that undergrad?
I was at CSU up in Fort Collins.
Oh, okay. I guess it makes sensewith Red Feather Lakes and, alright,
so you're at Colorado State,get your undergrad degree,
and then where did you go to law school?
So I went to du kind ofstayed instate again for that,
(02:32):
but it was really at that point, Ithink like a lot of law students,
I had a false conception ofwhat being a lawyer was like.
I wanted to do international law,wasn't really sure what that meant,
but I knew I wanted to do it and VNanda who was passed but was running the
international law program at DUmade it one of the top programs.
So wanted to get there.
(02:53):
Turns out international law in Denveris pretty limited and constitutes
mostly just reviewing a whole bunchof contracts and that sort of stuff.
So it started to beless of a focus for me.
I ended up clerking forthe Benelli Law Office,
the eye firm here in town that has hadsome really great victories and got to do
just an amazing amount of stuff. Theywere super supportive of their clerks and
(03:17):
so I was able to do a lot ofactual trial lawyer work from the
backend as a clerk and workedwith Joe Lapham, Becky Albano,
some great lawyers there.
And so got interested in doingmore trial work and then did a
clerkship at the Colorado Court ofAppeals with Judge Nancy Lichtenstein.
And I graduated from law school in 2009,
(03:41):
which was the height of the worstpoint to graduate from law school.
And there's probably fiveor six jobs on the CBA job
posting list.
And one of 'em was Stars Mi MichaelMim and Elizabeth Starr's firm.
And so I just kind of threw my resumeout there and I was lucky enough to
get hired there to do alot of employment work,
(04:04):
employment and constitutional lawwork. They had a partner at the time,
Buca Smith, who is doinga lot of that work.
And so I just kind offell into it frankly.
It was a really good situation,good people to work with,
and I ended up doing some really,really important work right off the bat.
Definitely a great firm that youfound yourself sort of landing with.
(04:26):
So were you at then, well,
I guess the Aborn MIMpredecessor was that 2009
2010 timeframe?
I started with Stars Mim in Juneof 2010 after my clerkship and
then what,
almost 15 years later now I'm stillwith the predecessor firm. Right.
We went from Stars Mim to MIM whenElizabeth Stars went on the bench,
(04:49):
and then we merged withAborn Summerlin and Aborn,
which is Mike and Marie, a born's firm.
And then we've been Aborn MIMfor the past 13 years now almost.
So then that first job,were you in the Chancery?
No, we at that point, God,I can't even remember.
What the name of the building was becauseI remember when we first opened our
(05:10):
firm, which I believewas 2008 across the hall,
was the aor mim predecessorin the Chancery. Oh really?
We just had this little tiny officeon the floor and saw this great,
amazing law firm doing these amazingthings and hoped someday to do such great
things. One more quickquestion before we ask Jason,
how you came to be in this amazing worldof trial work before you went to work
(05:33):
for Benelli,
did you have an interest in doing trialwork or was it only by happenstance you
go to work there that your eyes are opento this wonderful world of trial work?
I think that by that point,my second year of law school,
I'd started to realizethat there was this split,
and it sounds kind ofnaive now of plaintiff
(05:56):
defense, those sorts ofthings, but I had no context.
So I went into law school with verylittle information about what this field
looks like other than civicsclasses, that sort of stuff.
And so I think what I came around towas the realization that there's no
way in hell I could ever be a prosecutoror a insurance defense attorney.
(06:17):
They're just not things that jive withmy personality and why I'm a lawyer.
What interested meabout international law,
and frankly this is coming fromthe journalism perspective,
is that I saw it as an opportunity todo international human rights work,
that sort of stuff,
and stand up for the little guy who'soppressed by large governments and
horrible situations and advocate forindividuals. It turns out that's a very
(06:41):
small percentage of whatinternational lawyers do,
but I saw that outlet in doing trialwork and I think working at Benelli,
it really opened my eyes to,
you can have an impact onindividuals lives doing trial work.
I retained a desire to do civil rightswork from just kind of who I am.
And I think that endingup at Starman doing
(07:05):
1983 cases right off the bat,
we had a huge whistleblower case in asection 1983 case against a police officer
and a police department froma rape by the police officer.
And so jumping into those typesof cases right off the bat,
I think showed me that there's spaceto really have an impact on individuals
through doing this work.And it just stuck with me.
(07:26):
So I lied. I have onemore follow-up question.
And how does yourbackground in journalism,
does that help you find thestory or tell the story?
Sometimes struggled with, here we are,
we're supposed to be these trial lawyersand we're supposed to be these great
storytellers, but I don't knowif I'm a good storyteller or not.
(07:48):
And I just wonder if your journalismbackground sort of assisted you in being
able to really trim down the fat to tell a
compelling story, which I'm gettingahead of myself here on the case here.
Seems like you guys didmasterfully in this case.
I think what it did is it forced meto think about the inverted pyramid of
storytelling. So in journalismyou're taught the inverted pyramid,
(08:11):
your lead and the way that the storystarts is the most important facts at the
beginning.
And then because you have to be consciousthat news is a consumable product,
and so headlines are very important,sub headlines are very important.
And then your lead,
that first paragraph that tells as muchas the story as possible in a compelling
way as somebody read the rest of the case.
(08:33):
And so I think conceptualizing bothwriting and standing up in front of
a jury in that sense of how canI do an elevator pitch in a way,
a concise,
straightforward way to tell the storyof this case in a way that encapsulates
the important pieces that I want thejury or the reader to know right off the
bat, I think has helped. I will tellyou though, it's always a fight, right?
(08:57):
I mean,
we get so in depth in our cases and weget so wrapped up in the minutia that
I'm always having to go back over my ownwork because I end up getting wrapped
up in something that Imay think is important,
but at the end of the day is that'sonly important because of a very
tangential legal issuethat I find interesting.
And so that editing processI think has helped as well.
(09:19):
And I imagine your time at theCourt of appeals reinforced the
importance of trimming the fatand the legal writing aspect
of the work you do, I'm sure.
Yeah.
And I think I'm a person who tends towrite when the page limit is 10 pages,
I'll write 15 pages andthen edit down from there.
And that's just kind of the way thatI've always written. But absolutely,
(09:42):
if I'm not able to get my point acrossclearly and concisely, then we lose.
So it's always that battle.
Alright, so Jason, tell us a littlebit about yourself, your background,
which is fascinating and how it isthat you came to be a amazing trial
lawyer.
Well, thank you for the adjectives.I don't quite claim native status.
(10:03):
We did move here when Iwas one years old in 1977,
so close but not quite. AndI did just give away my age.
I grew up here as well. My dad isan attorney or he's now retired.
He mostly worked his career hereeither for the city attorney's
office or the attorneygeneral's office here.
(10:24):
I grew up obviously with the legalworld being part of my world,
but as those listening or watching know,
government attorneys don't get paid well.
So while I did attendCherry Creek hold for booze,
I was not gifted A BMWon my 16th birthday,
but I always knew I wanted to bea lawyer and some of that was the
(10:47):
natural selection process ofnot having any other skills.
So I went to college knowing Iwanted to be a lawyer. I went to
undergrad at Miami Universityin Ohio. As we like to say,
Miami was a universitybefore Florida was a state,
so you shouldn't confuse them, but peopledo. And I went in as a PoliSci major,
that's sort of the track,
(11:07):
and I took PoliSci 1 0 1 orwhatever it was and I hated it.
So I swam in college.
And so I was talking with a senior whowas going to law school and I was like,
this sucks. And he said, youdon't have to be a PoliSci major,
you can major in anything,so just do what you like.
I changed my major to creative writing,
(11:27):
which obviously being a good writeris a huge asset. As an attorney,
I did that.
Then I went to law school at theCatholic University of America,
Columbus School of Law,
it's the other law school inWashington dc and went there
because as many reallyintelligent people do,
(11:48):
followed a girl to my place of education.But it all works out in the end,
even though she did dump me rightas I arrived in dc. So a good start.
But I did meet my eventual wife myfirst year in law school anyway,
so it all worked out. But DC is agreat place to go to law school.
And I was there during a particularlycrazy time with both Bush v Gore and nine
(12:09):
11 while I was living there.So it was interesting, I mean,
literally I walked by the SupremeCourt to get to my apartment every day.
So there'd be huge protests,some guy carrying a giant cross,
somebody holding up an anticircumcision sign for some reason,
all the interesting protests.
And then I was going to stickaround in DC for a while,
(12:30):
but that didn't work out.My wife, or not yet wife,
but she moved to Colorado,
her family lives here.And so I moved back as well and started
work at Perkins EY here,
which had just opened up their Denveroffice because my view of the world was
you got to go to the big firm andeventually be a partner there.
(12:51):
And that's all I ever kind of thoughtof or wanted other than a federal
clerkship.
So I did that for a couple of years andI managed to get a federal clerkship on
the 10th circuit. A new judge hadbeen appointed Judge Tim Kekovich,
with whom my dad hadworked at the ags office.
And actually those who have been aroundin Colorado for a while will remember
(13:13):
the amendment Two case, nothing to dowith guns, but having to do with Colorado,
decided to constitutionallyessentially discriminate
against L-B-G-T-Q folks.
And that went up to the Supreme Court.
My dad did the trial defending the law,
and Judge Kovich was a solicitorgeneral at the time. He did the Supreme
(13:37):
Court argument on behalf of thestate. So there was a tie there,
certainly got my foot in the door afterthat. I worked for Brownstein. Again,
just sort of like thattypical big firm track.
I grew up a little bit under Stan Garnet,
who eventually became theBoulder district attorney.
And his view of litigation was notthe typical view of litigation for big
(13:58):
corporate firms. His view was,fuck it, let's go to trial.
I'm not going to dicker back and forthwith discovery letters and all that
nonsense. Let was just goto trial and see who wins.
And then 2008 recession hitand a lot of layoffs happened,
including myself. But duringmy time at Brownstein,
I had actually done a case for Frank AAR's
(14:22):
firm. He was a client of Brownstein,
and we had a case where he was our client,
and I guess I did a good job becausewhen he knew I was looking for work,
he said, Hey, come jointhe firm. And I was like,
nobody goes from Brownstein to Azar.
I was just about to, there's ajoke there somewhere if they.
Yeah, it was not a realexistential crisis, but I did struggle with it. I mean,
(14:44):
I spent all these years buildingthe resume, doing really well,
trying to get on this track. I asked alot of people what they thought. My dad,
my law school roommate, judge Tim Kovich,
and eventually decided thatI'll take the leap of faith and
realized while there,
although I was doing mostly class actionmass tort stuff that representing human
(15:06):
beings as opposed to corporations wasway more interesting and rewarding.
So yeah. So.
Let me just make sure I got it.
So you did end up going to Azarwhere you're doing mass torts.
Were you on the wage claimswith the Walmart case?
I think maybe a lot of people don'tunderstand the breadth and skill and
knowledge that Azar brings to cases.
(15:29):
So sometimes they might think,oh, it's car crashes only,
but there is a whole world ofamazing lawyering that is going on at
that firm. Was that your experience?
Yeah, so it's certainly like you've gotthe public persona and the public image,
which he's very much involvedin perpetuating. But yeah,
behind the scenes there'sa lot more going on.
(15:50):
I came in at the tailend of the Walmart cases.
They were resolving and settling.
So I got to fly out to acouple of objectors hearings.
And so if people think personal injurylawyers are really kind of bottom of the
barrel, which I know that'sthe public perception,
it's absolutely incorrect becausethe second that you get hurt,
you got to call one of us andyou'll be thankful that you did.
(16:12):
But in a class action,
you can object to the class actionsettlement and it can hold up the class
action settlement for years and years.So I had some involvement in that.
But the main case I focused on,
which was one that did not end upsuccessful was a wage claim against
Hewlett Packard,
and that was out in California in adistrict court up in San Francisco. So
(16:35):
worked on that and eventually foundmy way to a firm called Darling
Milligan Smith and Les,which was a very small firm,
and I was think the sixth orseventh attorney mostly doing
litigation, but a broad practiceand was there for 10 years.
And then I had done some casesco-counsel with folks over at Aborn mi,
(16:57):
including Clay referredcases back and forth.
And when time came for a change,
they were the only people I calledto see if they were interested.
And fortunately they were. And I've beenhere, what, three and a half years now.
So.
Fascinating, fascinating.
You've sort of run the whole gamutwith your father 10th circuit.
(17:17):
It's unusual.
Is it not for attorneys to clerk forfederal judges after they've been in the
workforce for a period of time?
Or does that happen I guess when youhave a new judge that takes the bench?
Yeah, I mean certainly it'snot the typical situation.
Judge Kovich came onto the bench in themiddle of what is normally the clerkship
cycle.
(17:38):
And I had been out for a couple years andhe was looking for clerks who did have
practical experience becausehe was getting up to speed.
And so that wouldhopefully accelerate that.
So I was his second class of clerks inhis first and second class of clerks,
at least there were at least two outof the four of us that had been working
for at least a year inthe regular workforce.
(18:00):
I had been working a couple of years.
Got it. Alright. Well Clay, Jason,
let's talk about this amazing trialthat y'all had in Denver who wants
to give us the factualbackdrop of what happened.
So in this case, werepresented Dr. Penelope er.
Dr. ER's got an amazingbackground as a geologist
(18:22):
turned educator, just kind ofa very inspirational story,
but I think what's most relevant to thiscase and what's most impactful is her
work with directly workingwith science students
in elementary and high school. So shebecame a science teacher 25 years ago,
30 years ago after acareer as a geologist.
(18:45):
And then from that became theleader of the entire science
program for Arapahoe County SchoolDistrict, if I recall correctly.
And then from there starteda magnet school solely
focused on stem science, technology,
engineering and math skills forColorado students within Arapahoe
(19:06):
County School district.
And then from there became the executivedirector of the charter school that we
ended up unfortunately soon STEMschool down in Highlands Ranch.
And so she became an executivedirector there back in
2012 when the school had just beenstarting out and it was kind of
failing. It wasn't doing particularlywell either financially or from a student
(19:29):
performance perspective. Andshe really turned it around.
And over a decade of beingthe executive director,
the leader of that school made itinto just this incredible force
within Colorado education.
It started being some of the highestperforming students in the state started
being nationally ranked and recognized.
And then I think as isall too common these days,
(19:52):
STEM suffered a schoolshooting in May of 2019.
There was a horrible shooting there.
And I think that for the STEMcommunity and for our client,
that was a real game changerand it forced our client to
really commit to theschool in her entirety,
help the school throughthis traumatic event,
(20:13):
be the school leader that she had alwaysbeen from an academic perspective,
but now it was also from a societalperspective and helping these kids who had
been through this horrible traumaticevent become successful students again.
So she goes through all of that andshe's been the executive director at the
school for a decade,
and the school decides that it wantsto start replicating, in other words,
(20:36):
opening other charter schoolswithin Colorado and maybe outside of Colorado with
the same kind of curriculum.
Let me jump in and ask aquestion about that because,
so when you have a charterschool, it is a public school,
is that right?
And that's an importantdistinction, right?
Because so charter schoolsare essentially these private,
(20:57):
usually nonprofit entities thatcontract with a public school district,
in this case Douglas County SchoolDistrict to run a school to run a
public school.
They have this kind of unique entitywhere they're not purely within
Douglas County School District, theyhave their own board of directors,
they have their own budget, they havemuch more latitude on their curriculum.
(21:19):
That's kind of the whole point of it.
And where a lot of charterschools are focused on societal
issues or things like that,
or there's a specific reason for thembeing that separate and apart from
education,
what was unique about STEM and what Dr.Yer did there is that this was a school
that was focused on stem, right?
It was focused on uniquestudents who might not thrive in
(21:43):
other situations,
but because of the environment that shehad built at the school were exceeding
all expectations.
Correct me if I'm wrong, but one of,
and I think that this becomesrelevant on your case,
I thought is as a public school then
she's eligible for para, is that right?
And para for those that don'tknow is an amazing pension
(22:05):
plan.
Do you want to kind of explain toour listeners what para is and why
if you are eligible forit, it's a big deal.
So Para is,
it's the social securityreplacement for public employees.
So folks that are employed by the stateof Colorado, Denver school district,
Douglas County School District,
(22:26):
cherry Creek School District and anumber of other governmental entities
all fall under Para.
And what that means is that boththe public entity and the employee
contribute a certain portion toa guaranteed pension program.
As pensions phased out,this somewhat replaced it,
and it's kind of this quasi 401k ish,
(22:49):
but pension ish type of program whereyou can get a certain percentage up
to a hundred percent of youraverage highest salary as a
public employee.
And so it's a real big incentivefor folks to take on these otherwise
low paying jobs and work at themfor an extended period of time.
So Dr. Eker is a part of thisand when she comes up and it,
(23:12):
she's now been the executive directorfor 10 years and they want to expand the
charter school networkthat they're developing,
they offer her this position as theCEO of this network. In other words,
she would sit above all of the schoolsas they opened other schools and she
would be the visionary leader ofhow are we going to extend this
STEM-based curriculum toall of these other schools.
(23:35):
Still as an employee, asa governmental employee.
Right?
There's a unique piece of parathough that you can retire
for para purposes, begindrawing your pair of benefits,
and then return to work for a publicemployer while still drawing your pair of
benefits,
these benefits that you've been payinginto throughout your decades long career.
(23:59):
And so she was at the pointwhere that made sense for her.
And so she goes through with thisprocess that she had talked with the
president of the board ofdirectors at STEM about,
and she signs a new CEO contract that'sthis three year CEO contract that
would've taken her out intothis year 2025 as the CEO
(24:20):
of STEM schools as a charter network.
She signs that contract,
then she goes through with thisretirement for para purposes,
and then as a result of that,
once a new president comes into the boardand before her contract even starts,
they take the position, STEMschools takes the position that,
(24:40):
well you've retired and thereforewe're not going to honor your contract.
It's a very simplified way of putting it,
but essentially they refuseto bring her back as a CEO.
And were there ramificationsbeyond just the income during that
contract period of time that she's losingor were you essentially filing suit
(25:01):
just for the contractualbenefits of that CEO contract?
We ended up at trial with just thecontractual benefits of the CEO contract.
I mean, was there otherimpacts? Absolutely.
This is a woman who had dedicated themajority of her professional career to
educating students and building upto this point where she could expand
(25:22):
her vision for educating kids whomight not succeed anywhere else but
under the STEM program thatshe had built would succeed.
And that's all ripped away from her.
The impact goes farbeyond financial for her.
The problem is this is a contractcase and we're dealing with a
governmental entity. So because of that,
(25:44):
we couldn't bring any tort claimsagainst the governmental entity.
And so we did have the contractclaim though that got by CGIA,
obviously the ColoradoGovernmental Immunity Act,
and so we kind of narrowed it down.
We had hoped to go afternon-economic damages at trial.
The judge unfortunately shut us down onthat and only allowed us to go after the
(26:08):
economic damages, but wewere able to go after that,
at least the economicportion of what she lost.
So educate our listeners because manypeople might be thinking, well wait,
I thought Colorado was a rightto work state or whatever it is.
You can get fired for any reason. Anytimetoo bad, so sad, go find another job.
So how is your client able to bring aclaim for sort of sounds like wrongful
(26:31):
termination or something like that?
So Colorado is an atwill employment state,
and what that means is theemployer or the employee
can end the employment relationshipfor any reason or no reason at any time
without notice,
so long as it's not for adesignated improper reason, right?
(26:52):
You can't fire somebody for refusing toengage in illegal conduct or you can't
fire somebody because of theirrace or religion, things like that.
Protected class.
Right,
or protected activity that at will statuscan be modified through a contract if
there's an employment contract,
then written employment contract orverbal employment contract in some
situations that governs right,
(27:14):
and that limits theability of a company to
terminate or otherwise changethe terms of employment.
What's interesting in this case is wedidn't even get them right because they
refused to even employher under this contract.
So it truly was therewas a contract in place,
they agreed to employ her and they refusedto abide by those obligations. What.
(27:37):
Did you have to prove? In other words,
what did the contract say they wereallowed to terminate the contract for
and what was their reasoning fornot agreeing to go through with the
contract?
Jason, do you want to jump inhere and discuss that aspect?
Yeah, sure. I mean, so again,
and we're talking about a writtencontract signed by both parties
(28:00):
in March of 2022 with a start date
of August 1st, 2022.
So the contract was actually very simple.
It's not a typical C-suite contractthat's going to be 20 pages with a golden
parachute and anything like that.
It was a couple pages and there werethree ways to terminate the contract,
(28:21):
two of which were irrelevant.
The only one that mattered was bymutual agreement of the parties.
And so there was no way foreither party including our
client,
let's say she just decided halfwaythrough her tenure under this contract,
she just didn't want to do itanymore. She can't do that.
She was stuck in this contract. Theywere, unless there was a mutual agreement.
(28:44):
And so the school,
like Clay said earlierwhen she said, look,
I'm going to step awayfor short amount of time,
I'm going to have noinvolvement with the school,
that's going to be my retirement. So Ican start collecting my para benefits and
then I will start thiscontract on August 1st.
The school took this insane positionadvocated by this other lawyer that was
(29:09):
representing them at the time that wasjust absolutely legally incorrect in our
view that well, if youretire, then you retire.
And that somehow acts as her not
honoring or repudiating thecontract. And so when she said, no,
that's not what's happening here,and said, before August 1st,
(29:29):
before the start date of the contract,
I have every intent to come backand start my job on August 1st under
this contract. They saidno. And our response was,
where is the mutual agreementto terminate? There isn't one.
And we can get into sort of the OpenRecords Act and the Open Meetings Act
things, which really made it, in our view,
(29:52):
impossible for the schoolto make a good faith
non frivolous claim thatthere was a mutual agreement,
but they did so nonetheless.
Yeah. So let's talk.
What was their in court excusefor why they did what they did and
then what's the real story andhow did you find the real story?
Yeah, so I'll start briefly.
(30:13):
So the story in court was you retire,
that means you retire and thiscontract is no longer in existence
and they claimed that somehow thepara rules themselves prohibit
a para eligible employee fromagreeing in advance of a retirement
to come back. Well, that'sjust not true. In fact,
(30:35):
para documents specificallycontemplate this,
and the school had done this with anemployee prior to Dr. ER doing it.
The real story,
which was discovered through corerequests and other documents and witness
testimony in trial was that a lotof people, for whatever reason,
despite her extraordinarysuccess helping their children,
(30:55):
didn't like Dr. Eker.
They said she ran the schoollike a business and they thought she was overpaid.
And it ended up being likea lot of stuff is high.
School all over again, right? Right.It's like the cooler talk of people.
I'm just imagining these teachers orschool administrators just sitting there
talking smack and then it justbecomes this toxic work environment.
(31:16):
And in my mind, I'm telling myself allkinds of stories of how this went down.
And I'll let Clay take over on what wasin the text messages and everything that
prior counsel obtained through Corabecause it was like high school cliques.
It was like mean girls.
Oh my God. Yeah. And Jason alluded to,
I mean a lot of credit goes to ourpredecessor counsel over at Lewis Rocha,
(31:37):
Angela Viic and Paige Johnson over therewho represented Dr. Ecker right after
she was terminated they got right onit and they sent out Cora request,
Colorado Open Records Actrequest to the charter school.
Before the lawsuit was filed.Is that right? Alright,
so talk to us a little bit about thatand the ability to use core requests.
So the Colorado Open Records Actright is the state version of foia.
(32:00):
Essentially what the Open Records Actsays is that any public entity who's
conducting public business has tomaintain all the records regarding public
business and public finances thatextends to charter schools who are public
schools under public school districts.
And so our predecessor council was ableto request things like the text messages
(32:21):
between the president of the board ofdirectors and the vice president of the
board of directors.
They core requested all the emailcommunications between the board
members who made this decision not toallow our client back about that decision.
I have a question about the text messages.
We have a system here where we cantext our clients and it goes into our
(32:42):
software. Did they have that or didthey literally take screenshots?
I'm just wondering,
you're just relying upon the honor systemof two people texting each other to
actually preserve that.
As much as we get into these battleswith opposing counsel, right?
Eric Hall who was on theother side of this case,
a very straightforward honestattorney to recognize that, look,
(33:04):
there are these text messages,they exist, they're responsive,
we're not going to hide them, we'regoing to deal with it straightforward.
And a lot of credit goes to him of doingsomething that I fear that there are
less scrupulous attorneyswho would not have done,
but at the end of the day they did.They took screenshots on the president,
took screenshots on her phone,
(33:24):
and those were produced very quicklyas a result of core requests.
I'm literally in shock. I feel like thatwould never happen in one of my cases,
but maybe it's just my luck in the world.
Well, keep in mind it's gotto be the governmental work.
So a lot of, particularly in the attorneygeneral's office here in Colorado,
(33:45):
they are required to have two phoneslike personal phone and government phone.
And if you do any governmentbusiness on your personal phone,
well that is going to bring everythingin your personal phone into the net of
Quora requests. Part of the problemhere is as Clay talked about,
is this charter school hasits own board of directors.
It's not governed by theboard of directors of Douglas County schools and it's a
(34:09):
voluntary board and that obviouslyis a difficult position to be in,
and they may not really have all of theexperience that they need to understand,
gee,
you probably shouldn't text poop emojisabout somebody that you don't like
because it's going to be found out.
Or it's going to be blownup as a huge demonstrative.
And I'm going to be questioning youabout what you meant by that poop emoji,
(34:32):
which is something thathappened in the case.
It's just fascinating,fascinating, fascinating. So,
and I think I cut you off, clay.
You were talking about the textmessages and other information.
I think that we were going tothe real story of what was going.
On. Yeah, I want to jumpback to that real quick.
So we've used that in other caseslike civil rights cases for instance,
(34:53):
and sending core requests to policedepartments and other entities like that,
that may be a target as a defendant.And it's not part of discovery.
It's much broader than discovery.
So you can ask for any publicdocument regarding any issue and it
allows you to do a pre-suit discoveryin a way that's much broader than
(35:15):
you might actually getit at the end of the day.
I think this case would've looked a lotdifferent if Angela Viic and her folks
over Louis Rocha hadn'tjumped on this immediately.
It sounds magical,
not having discovery disputehearings with your Cora requests.
Well, and then I mean whatended up happening is there was very little document
discovery in the case because they haddone such a good in those core requests.
(35:38):
And I think any case,
I feel in my gut that there's stuffthat we left on the table, right?
I'm sure there was other documentsout there that we could have gotten,
but at the end of theday, there was enough.
And I think that we were ableto tell a very compelling story
of like Jason was saying, a mean girl,
which is exactly what our client calledthe situation on the stand where she
(36:01):
was being targeted by a groupof board members who didn't
want her around anymore.
And they saw this as their opportunityand they got really bad advice from an
attorney who testified that they couldjust simply walk away from this contract
that obligated them toemployer for three years.
So I want to come back for sure,
to the excuse of ourattorney told us it was okay.
(36:24):
But before I do that,
how did you all formulatethe theme and story of this
case to make the jurors care about this?
It seems it's fascinatingbecause I'm geeked out by it.
Definitely a wrong has occurredhere, but I'm a lawyer,
maybe I like these things are jurors oris there a concerned jurors are like,
(36:46):
well, so what? Go get a differentjob or something like that.
I could show you our war room andI don't know if it's been a race,
but we have this huge one wallthat's all dry erase, right?
And Jason and I filled up that entirewall probably three times over trying to
map out everything.
It looked like a crazy person drawingthe string lines between two different
things. But I thinkwhat we ended up doing,
(37:09):
and we went through so manydifferent iterations of this,
and this is where I want Jason to jumpin here in a minute. On the focus groups,
we found out that really peoplegot that our client cared.
They got her backstory of being a caring,compassionate teacher and educator,
and that's pretty apparent on its face.
(37:30):
What we needed to tell thestory of is that she got set up
and there was a motive here and thatthis was a decision that was motivated
by a desire to get her out of there.
That became our story because wehad some amazing testimony from a
former board member that reallytold this story of how they tried to
(37:52):
take advantage of this situation thatshouldn't have in any way impacted her
ability to return as CEO of the company.And so we learned a lot of that.
I think from the focus groups.
I'd love to hear how focus groups help.
It almost sounds like betrayalor some kind of word that
evokes intense emotionalresponse. How'd you find that.
(38:16):
Betrayal is if you canfind betrayal in a case,
it is one of those fundamental humanemotions that just triggers people.
It really does. We all know thatlogic and facts do not drive a case.
They are sort of the carsthinking about a train analogy.
Those are the cars carrying the cargo.
The engine of any trial train is a motion.
(38:39):
And we did a couple focusgroups through Mojo Consulting,
reach out if you want tohave your case focus group.
But the first focus group we did was whatwe call just a perception focus group.
And we give them a very general neutral,
maybe defense heavy slightly narrativeof the case and then just start
asking open-ended questions much like youwould do during a voir dire if you had
(39:02):
the time to do it, which you don'tColorado, which is a problem.
But one of the things that afocus group member said was
sounds like she was set upthat didn't come from us,
that came from them organically.And we knew there was some of that,
but you don't want to look at theworld with a conspiratorial lens.
But when focus group members justaverage Joe's off the street,
(39:24):
start looking at things and saying,this just looks like she was set up.
And then we had the evidenceto substantiate that.
It really gave us a good insightinto we can use that betrayal setup
as our emotional engine. Andso Clay alluded to one of the former board members,
a gentleman named James Hardy,who in my view very courageously,
(39:45):
he's a former board member.He has no obligation to us.
He actually quit at a protestwhen all of this went down back in
2022 because what he saw in his view was
very problematic.
He felt they were trying to manufactureattorney-client privilege where none
should exist,
particularly with an entitythat is bound by the law
(40:08):
to keep its meetings open to the public.And his testimony
was not dynamic, right? Thiswasn't a Perry Mason moment,
I really kind of had to draw it out ofhim. But he had sent a, what was it,
six eight page single space,
10 point font email to the boardof directors long before any
(40:29):
of this got hot with lawyerslaying out what he saw were the
problems,
and he sent it to the president of theboard of directors and the other board
members. And during trial,
when we asked the president of theboard of directors, whether she read it,
she said, I skimmed it. It was very long.
You could see the jurorsrespond, are you kidding me?
(40:51):
This man takes the time and effortto lay out chapter and verse and
you just basically slough it offthat dismissiveness or was sort of an
undercurrent during the trial.
So who's your first witness?
Was it the board member that wrote thesix page letter or was it the president
of the board had to havebeen one of those two people.
Right? It's the former,
it was the board member who resignedwho sent the letter and look,
(41:14):
every great trial lawyer knowsyou need to start your case
impactfully,
but also with a witness who'srelatively uncrossable or unimpeachable,
somebody who has no skin inthe game, those kind of things.
And he turned out to be avery good first witness again,
although not dynamic in his testimony.That was really interesting.
And that letter, I mean we kept comingback to it over and over and over again.
(41:37):
Every one of their witnesses,
we would ask them about phrases andsentences and quotes from that letter and
they had no answer to.
It. Was it exhibit one?
No, it wasn't. The contractwas exhibit one. Okay.
Okay. That's fair Question.
Talk to us a little bit aboutadvice of counsel as a defense.
So sometimes we see thiscome up in bad faith cases,
(41:59):
things along those lines. Howdoes it apply to a case like this?
What's interesting is it doesn't,right? They tried, frankly,
they pled very limited defensesin this case and their defenses
were a moving target.
And I think if there's one thing thatI've taken from this case and working with
Jason on this case in particular,
it's being tenacious about those pretrialmotions and educating the court about
(42:24):
what your objections are going tobe because they were all over the
map on their defenses and they wereessentially trying to smuggle in an advice
of counsel defense in a contract case.
Advice of counsel is only adefense to an intent-based claim.
You have to have some sort of intentor knowledge element that your
(42:44):
counsel's advice negates that yourcounsel advised you could do this.
So there's no way I could have intendedto do anything wrong in a breach of
contract case, you don't have that.
There's no intended requirement.And so we advocated for both in
pretrial motions,
in bench briefs in I think thatthere was at least one hearing in the
(43:05):
few days before the trial that Jasonhandled trying to push this idea to the
court of they can't rely on thisattorney to absolve them of a breach of
contract claim. And slowly the judgecame around to us and we were able to,
when we cross-examine that attorney,when they put 'em on the stand,
we were able to really box them in.
And the judge issued a contemporaneouscurative instruction in the middle
(43:29):
of this attorney's testimonythat you can only consider this
testimony for the effect ithad on the board members.
The advice of counsel is not a defense.
And so we were able to really kind ofthrough what felt to me at the time as
over objecting, right?
Standing up in front of thejury and objecting repeatedly,
(43:52):
but also having educatedthe judge so much before,
and Jason having done so much work there,
we were really able to box this guy in.
And then we were also then ableto create this closing argument
of what all of this is really theresult of is bad decisions that
were the result of a bad attorney.I mean, at the end of the day,
(44:13):
it actually I think ended up benefitingour case for them to rely so heavily on
this attorney who was so obviously wrong.
Just so I make sure thatI understand the law,
I will confess that I am not well versed.
So if you had pled orhad punitive damages,
damages or somethinglike that on the table,
then the advice of counselwould be relevant to that,
(44:37):
to the intent behind punitivedamages or like a fraud claim.
But because this was justsimply a breach of contract,
if a lawyer says you'reokay to breach the contract,
the issue is just whetherthey breached the contract,
not why they breach the contract.
And so I do a lot of whistleblowerwork. And so in those cases,
a lot of times it'sfraud on the government.
(44:57):
And so you have to prove thatthey knowingly committed fraud.
And you'll see a lot of advice of counseldefense in those situations, right?
Because there is this knowledge element,
there's an intent element that you haveto prove that doesn't exist for contract
cases. And so we were verymuch able to, I think,
use that to our benefit where they thoughtit was a big benefit for them of this
(45:18):
well-respected attorneythat they had had for years,
was advising them that they could dothis when in fact he didn't look at
anything. He didn't do anythingto confirm his opinions.
He was just shooting fromthe hip and he was wrong.
And so would a quick Google search tellyou advice of counsel does not apply to
breach of contract claims.
A pretty quick one, and Clay'sunderselling it a little bit here,
(45:41):
and I'll let him tell the story of hiscross of the attorney, Barry Arrington.
But what you have hereduring the depositions,
what we heard over and over and overagain, the president, the vice president,
other board members who were deposedis you could hear them saying
a literal talking point given tothem, I'm sure by counsel was, well,
(46:02):
Barry Arrington told us thiswas the way para worked.
This is what Para said. Well,
Barry Arrington in our view was dead
wrong. And the fact that allof these people relied on it,
I almost
feel bad for them as voluntaryboard of director members.
(46:25):
But at the same time,
para rules and para pamphlets arewritten in very plain English.
They are intended for non-lawyers.
And they lay out very clearlywhat para allows you to do
vis-a-vis retirement and coming back.
And all they had to dowas read those themselves,
(46:45):
but instead they relied on thislawyer who just led them astray.
And so during clay's,
it was a joy to watchbecause what clay did was
box 'em in. And Clay, I don'twant to ruin the climax here,
tell them what exactly thisguy copped to on the stand.
Well, so we were able to run throughall the things that he didn't review.
(47:08):
And my final line of questioning thatwe had thought about beforehand was
his interest in the outcome of this casethat he had a personal interest in this
case being a good outcome.Because if he didn't,
then the school would have a claim againsthim for the effects of his incorrect
advice that he gave them the advicethat essentially embroiled them in this
lawsuit. And so he hems and haws about,
(47:31):
I don't know what you mean by personalinterest and things like that.
And then I asked himthe final question of,
well have you put yourprofessional liability carrier on
notice your insurance carrier on noticeof a potential claim by the school?
And I had no idea whathe would say, right?
It's not a question I'd asked thedeposition, I just figured yes or no,
it didn't really matter to me.I just wanted to be out there.
(47:55):
And he had put them onnotice of a claim and
that they were under, I think under atolling agreement or something like that.
And I just ended mycross-examination right there.
I had another page of stuff to gothrough and I just looked at it and said,
I have no further questions,
because I think it drove home tothe jury this idea of they were
(48:16):
grasping at straws to try to finda reason to get rid of our client,
and they found it in this attorney whowas just telling them what they wanted to
hear, whether it was right or wrong.
So what was the end verdict?
And because I know theanswer to this question,
did you get any interesting questionsfrom the jurors as they were deliberating?
(48:37):
I'll do the end verdict and then I'lllet Jason talk about the juror question.
So we had every dime that we asked for,
so we went up there and we asked forthe three years of her base salary under
her three-year contract,
plus the value of the paid time off thatshe was promised under the contract.
And it ended up being, God, you'regoing to put me on the spot here.
I think it was
$949,634
(49:01):
and 60 cents, something likethat, right under 950,000.
And so the jury, we askedfor that from the jury,
we weren't able to ask forthe non-economic damages that we had hoped for,
but I think that it was a goodmeasure of the economic impact
for, and I'll let Jason talkabout the deliberations.
Yeah.
So Clay gave a great closingand continued to use these text
(49:25):
messages in closing with the poopemojis and the mean girl stuff back and
forth. And so the jury goes out,
they get the case Fridaymorning just before lunch,
and I have told everybodyI've worked with,
if I had my druthers closingargument would happen,
and then I would fly to some remoteisland and have no ability to access the
(49:45):
internet.
And then I'd come back six months laterand somebody would tell me the result.
And because the waiting for the jury,and then when the jury comes in,
it's literally the worstphysical feeling I have.
It's like driving by a cop doing 95to the nth degree. It's way worse.
But so we get a question. In all honesty,
we were pretty confidentinstructions had gone well.
(50:06):
The defense counsel had agreed andstipulated to an instruction that they had
essentially the burden to prove thatour client terminated the contract.
And a jury question comes back, andI won't be able to quote it exactly,
but it was,
are we limited to the$978,000 or can we give
(50:27):
more money?
In my dreams, it's like,
can we have a calculator or what if wewant to award more than they've asked
for? I don't know if I'll everget that question, but Oh my gosh.
Yeah. I mean, certainlyby leaps and bounds,
the best jury question I've evergotten, and this jury was smart. I mean,
the questions they asked, they asked alot of questions of a lot of witnesses,
(50:49):
and the judge allowed someand didn't allow others.
And the ones that they asked, even ifthey weren't actually asked on the record,
were smart.
They clearly knew what someof the legal issues that they
weren't allowed to considerwere. They were insightful.
And they came back basically afterfinishing their sandwiches and gave us
(51:10):
literally every dime we asked for.
There's a couple of things that Iwant to throw in there real quick.
We got that question.
We had stayed to tear down all thestuff and all the monitors and stuff.
So Jason and I are there helping andworking with our team to tear all that
down. Defense counselhad gone to eat lunch.
And so we see the question come outand we see the judge kind of look down,
(51:32):
shake his head a bit and say,we've got a jury in question.
And then we had to wait for defensecounsel to come in from his lunch.
And I don't know why he leftagain, frankly after that question,
but it was pretty impactful.
I will say one of the big things too thatI learned in this case is to use your
young associates. So Jason and Ihad an associate from our firm,
Ingram Wilkinson,
(51:52):
who's got the most stellar resume ofprobably anyone at our firm. He's just
incredible background, incredibly smartlawyer, but relatively young, right?
This was his first witnesses. Hetook a couple of cross-examinations.
He did our Rule 50 motion when we triedto get essentially a ruling in our
favor, but the jury saw that, right?
(52:13):
And they saw that we wereallowing somebody with a little less experience to get
up there and do their work andget the benefit of this trial.
And I think they really appreciated it.
You could see them actually paying alittle bit more attention to him than
opposing counsel who obviously had beendoing this for decades and was very good
attorney.
But I think they were appreciative thatwe allowed a young attorney to have some
(52:36):
time in court.
What a just phenomenal result ifpeople want to get ahold of you.
So my first question,
how do they get ahold of you and whattypes of cases does your firm handle?
I mean, it sounds like you are doinga lot of some business litigation.
I know you all do supercomplex product liability,
personal injury cases. So real quick,
(52:58):
what kind of cases should people reachout to you and how do they get ahold of
you? Start with you, Jason.
Yeah, sure. I do notspecialize in anything.
And so basically I helpanybody who's being screwed,
and that can be personalinjury, it can be employment,
it can be defending a small businesswho is getting taken advantage of by a
larger business, CanOx lanes,
(53:22):
it's big business commerciallitigation fighting that.
It does run the gamut. Youcan email me at jason wa
soki@omtrial.com.
Our phone number is (303)592-5900. But before we leave,
I do want to make sure we getthe Lebowski story, but go ahead.
Clay. Oh yes, the Lebowski story, andI mean there was no disrespect, Jason.
(53:45):
He knows this, that I have suchrespect for Jason as an attorney,
so absolutely phenomenal.
So most of what I do iswhistleblower adjacent.
I represent a lot of whistleblowers inemployment claims, retaliation claims,
and then in keam and bounty actions.
So folks who know about illegalconduct or fraud on the government
(54:07):
or fraud in relation to securitiesfilings, things like that.
That's the majority of my work.
I also do a lot of just runof the mill employment work,
like this employmentcontract case, but we also,
we've represented some pretty highlevel folks in discrimination cases,
things like that. Ourfirm as a whole though,
I mean we essentially run thegamut on the plaintiff's side.
(54:27):
We do everything from complex personalinjury with a focus on brain injury work
to complex legal malpracticecases. On the plaintiff side,
our partner Michael Mimand Nicole Quintana,
they do just a phenomenal job withthese complex legal malpractice cases.
We've got folks here who doconstruction litigation for both
(54:48):
subcontractors and general contractorsas well as on the homeowner side
for construction defect. But we'vegot folks who do wrongful death cases.
Pete McClanahan at our office does anamazing job with medical malpractice
cases. Then we've got MurrayAborn, who I think, I mean,
he's in the office every day at, Ithink he's 82 now, something like that.
(55:09):
And he's just a wealth ofinformation, but he takes everything.
So we do run the gamut. I willsay it's mostly on the side of,
it's entirely on the side ofpeople who have been screwed.
We do try to fight the man a bit here,
even if we end up beingthe man in some situations,
I think our firm's real focus is on trial.
That's why I appreciate this podcast somuch is gives us the story to tell about
(55:30):
a trial that we were successful.
So obviously big fan of themovie, the Big Lebowski,
and it's funny because JudgeEff, who presided over this case,
his trial management orderis his case management order,
literally says in it, try to havefun. This can be a fun profession.
(55:50):
And so maybe taking that a little bit too,
literally during the cross-examinationof one of the board members,
an attorney whose name is Linda Davison,
who worked with my father atthe attorney general's office.
So I was asking her aboutsome of these text messages.
And one of the text messages said, Linda,
I agree with Linda thatDr. Ecker is playing us.
(56:15):
And so I asked Ms. Davidson, I'm like,
did you say that my clientwas playing you? And she goes,
I don't know what you mean. And I said,well, let's, at the text messages here,
it says, I agree with Linda that Dr.ER's playing us. Did you say that?
What'd you mean? And she goes, I don'tknow what you mean by playing us.
And I said, in the normalparlance of our times,
(56:35):
which is a deep cut froma Big Lebowski quote,
but I know Clay got it because he had tobite his lip. He was right next to me.
And then I'm fairly confident at leastone of the jurors got it because he
immediately leaned over to a fellowjuror and kind of whispered in her ear.
So that was actually kind offun. And Clay had the great idea,
(56:56):
which I probably will do in grabbingthat piece of the transcript,
maybe sending it to the Cohen Brothersor Jeff Bridges for an autograph.
I just think they're such apractice pointer, honestly,
in that not takingyourself too seriously and
humanizing yourself to thejurors. So I love that story.
(57:18):
Clay, Jason,
thank you so much for taking the timeout of your very busy lives to speak
with us. And congratulations on anamazing verdict. And until the next one,
we'll look forward to justice beingserved out there in the courtrooms all
across Colorado. Thanks everybody forlistening. Thank you for joining us.
We hope you've gained valuable insightsand inspiration from today's courtroom
(57:40):
warriors. And thank youfor being in the arena.
Make sure to subscribe and join us nexttime as we continue to dissect real
cases and learn fromColorado's top trial lawyers.
Our mission is to empowerour legal community,
helping us to become better trial lawyersto effectively represent our clients.
Keep your connection toColorado's best trial lawyers
(58:00):
alive@www.thectlc.com.
Welcome to the ColoradoTrial Lawyer Connection,
where Colorado trial lawyers shareinsights from their latest cases. Join me,
Keith Elli. As we uncoverthe stories, strategies,
and lessons from recent Colorado trialsto help you and your clients achieve
justice in the courtroom. Thepursuit of justice starts now.
(00:21):
Welcome back everyone.
Keith Fuselli here for another episodeof the Colorado Trial Lawyer Connection
Podcast.
Super excited this week to have ClayWire and Jason wi Soki from the law
firm of a mim.
And what I'm really excitedabout this episode is this is a
very sort of cantillating,
(00:42):
very unique fact scenariothat deals with a
breach of contract. And normallypeople think breach of contract.
That doesn't seem verytantalizing in this case it
was,
and I'm really curious totalk to you both about how you
formulated the story of thiscase and presented it in a
(01:04):
way that made jurors care.
But before we jump into that,clay, let's start with you.
Tell us a little bit about yourself.How did you come to be a trial lawyer?
All right, well, so Igrew up here in Colorado.
I'm one of the few Coloradonatives around still.
I grew up in a little town just past alittle town called Red Feather Lakes up
(01:26):
past Fort Collins. I don't haveany connections to law really.
My parents were a bit of hippies.
We lived out in the middle of nowherein a log cabin, no electricity,
no running water. It was avery weird way to grow up,
but I didn't have any real connectionto a legal community. Right.
I didn't have any mentorsor anything like that,
so it wasn't even on my radarfor a long period of my life.
(01:48):
I ended up going to college tobecome a journalist and so I did
all of that.
Then I got interested in poli sci andended up double majoring in journalism and
sci. It turns out though,
that I was making more money bartendingthan I would either being a political
scientist or a journalist, andso decided to go to law school.
(02:10):
Where did you do yourundergrad? In my mind,
I'm thinking it had to be Boulder justbased upon this story, but am I wrong?
Was it Boulder or wherewas that undergrad?
I was at CSU up in Fort Collins.
Oh, okay. I guess it makes sensewith Red Feather Lakes and, alright,
so you're at Colorado State,get your undergrad degree,
and then where did you go to law school?
So I went to du kind ofstayed instate again for that,
(02:32):
but it was really at that point, Ithink like a lot of law students,
I had a false conception ofwhat being a lawyer was like.
I wanted to do international law,wasn't really sure what that meant,
but I knew I wanted to do it and VNanda who was passed but was running the
international law program at DUmade it one of the top programs.
So wanted to get there.
(02:53):
Turns out international law in Denveris pretty limited and constitutes
mostly just reviewing a whole bunchof contracts and that sort of stuff.
So it started to beless of a focus for me.
I ended up clerking forthe Benelli Law Office,
the eye firm here in town that has hadsome really great victories and got to do
just an amazing amount of stuff. Theywere super supportive of their clerks and
(03:17):
so I was able to do a lot ofactual trial lawyer work from the
backend as a clerk and workedwith Joe Lapham, Becky Albano,
some great lawyers there.
And so got interested in doingmore trial work and then did a
clerkship at the Colorado Court ofAppeals with Judge Nancy Lichtenstein.
And I graduated from law school in 2009,
(03:41):
which was the height of the worstpoint to graduate from law school.
And there's probably fiveor six jobs on the CBA job
posting list.
And one of 'em was Stars Mi MichaelMim and Elizabeth Starr's firm.
And so I just kind of threw my resumeout there and I was lucky enough to
get hired there to do alot of employment work,
(04:04):
employment and constitutional lawwork. They had a partner at the time,
Buca Smith, who is doinga lot of that work.
And so I just kind offell into it frankly.
It was a really good situation,good people to work with,
and I ended up doing some really,really important work right off the bat.
Definitely a great firm that youfound yourself sort of landing with.
(04:26):
So were you at then, well,
I guess the Aborn MIMpredecessor was that 2009
2010 timeframe?
I started with Stars Mim in Juneof 2010 after my clerkship and
then what,
almost 15 years later now I'm stillwith the predecessor firm. Right.
We went from Stars Mim to MIM whenElizabeth Stars went on the bench,
(04:49):
and then we merged withAborn Summerlin and Aborn,
which is Mike and Marie, a born's firm.
And then we've been Aborn MIMfor the past 13 years now almost.
So then that first job,were you in the Chancery?
No, we at that point, God,I can't even remember.
What the name of the building was becauseI remember when we first opened our
(05:10):
firm, which I believewas 2008 across the hall,
was the aor mim predecessorin the Chancery. Oh really?
We just had this little tiny officeon the floor and saw this great,
amazing law firm doing these amazingthings and hoped someday to do such great
things. One more quickquestion before we ask Jason,
how you came to be in this amazing worldof trial work before you went to work
(05:33):
for Benelli,
did you have an interest in doing trialwork or was it only by happenstance you
go to work there that your eyes are opento this wonderful world of trial work?
I think that by that point,my second year of law school,
I'd started to realizethat there was this split,
and it sounds kind ofnaive now of plaintiff
(05:56):
defense, those sorts ofthings, but I had no context.
So I went into law school with verylittle information about what this field
looks like other than civicsclasses, that sort of stuff.
And so I think what I came around towas the realization that there's no
way in hell I could ever be a prosecutoror a insurance defense attorney.
(06:17):
They're just not things that jive withmy personality and why I'm a lawyer.
What interested meabout international law,
and frankly this is coming fromthe journalism perspective,
is that I saw it as an opportunity todo international human rights work,
that sort of stuff,
and stand up for the little guy who'soppressed by large governments and
horrible situations and advocate forindividuals. It turns out that's a very
(06:41):
small percentage of whatinternational lawyers do,
but I saw that outlet in doing trialwork and I think working at Benelli,
it really opened my eyes to,
you can have an impact onindividuals lives doing trial work.
I retained a desire to do civil rightswork from just kind of who I am.
And I think that endingup at Starman doing
(07:05):
1983 cases right off the bat,
we had a huge whistleblower case in asection 1983 case against a police officer
and a police department froma rape by the police officer.
And so jumping into those typesof cases right off the bat,
I think showed me that there's spaceto really have an impact on individuals
through doing this work.And it just stuck with me.
(07:26):
So I lied. I have onemore follow-up question.
And how does yourbackground in journalism,
does that help you find thestory or tell the story?
Sometimes struggled with, here we are,
we're supposed to be these trial lawyersand we're supposed to be these great
storytellers, but I don't knowif I'm a good storyteller or not.
(07:48):
And I just wonder if your journalismbackground sort of assisted you in being
able to really trim down the fat to tell a
compelling story, which I'm gettingahead of myself here on the case here.
Seems like you guys didmasterfully in this case.
I think what it did is it forced meto think about the inverted pyramid of
storytelling. So in journalismyou're taught the inverted pyramid,
(08:11):
your lead and the way that the storystarts is the most important facts at the
beginning.
And then because you have to be consciousthat news is a consumable product,
and so headlines are very important,sub headlines are very important.
And then your lead,
that first paragraph that tells as muchas the story as possible in a compelling
way as somebody read the rest of the case.
(08:33):
And so I think conceptualizing bothwriting and standing up in front of
a jury in that sense of how canI do an elevator pitch in a way,
a concise,
straightforward way to tell the storyof this case in a way that encapsulates
the important pieces that I want thejury or the reader to know right off the
bat, I think has helped. I will tellyou though, it's always a fight, right?
(08:57):
I mean,
we get so in depth in our cases and weget so wrapped up in the minutia that
I'm always having to go back over my ownwork because I end up getting wrapped
up in something that Imay think is important,
but at the end of the day is that'sonly important because of a very
tangential legal issuethat I find interesting.
And so that editing processI think has helped as well.
(09:19):
And I imagine your time at theCourt of appeals reinforced the
importance of trimming the fatand the legal writing aspect
of the work you do, I'm sure.
Yeah.
And I think I'm a person who tends towrite when the page limit is 10 pages,
I'll write 15 pages andthen edit down from there.
And that's just kind of the way thatI've always written. But absolutely,
(09:42):
if I'm not able to get my point acrossclearly and concisely, then we lose.
So it's always that battle.
Alright, so Jason, tell us a littlebit about yourself, your background,
which is fascinating and how it isthat you came to be a amazing trial
lawyer.
Well, thank you for the adjectives.I don't quite claim native status.
(10:03):
We did move here when Iwas one years old in 1977,
so close but not quite. AndI did just give away my age.
I grew up here as well. My dad isan attorney or he's now retired.
He mostly worked his career hereeither for the city attorney's
office or the attorneygeneral's office here.
(10:24):
I grew up obviously with the legalworld being part of my world,
but as those listening or watching know,
government attorneys don't get paid well.
So while I did attendCherry Creek hold for booze,
I was not gifted A BMWon my 16th birthday,
but I always knew I wanted to bea lawyer and some of that was the
(10:47):
natural selection process ofnot having any other skills.
So I went to college knowing Iwanted to be a lawyer. I went to
undergrad at Miami Universityin Ohio. As we like to say,
Miami was a universitybefore Florida was a state,
so you shouldn't confuse them, but peopledo. And I went in as a PoliSci major,
that's sort of the track,
(11:07):
and I took PoliSci 1 0 1 orwhatever it was and I hated it.
So I swam in college.
And so I was talking with a senior whowas going to law school and I was like,
this sucks. And he said, youdon't have to be a PoliSci major,
you can major in anything,so just do what you like.
I changed my major to creative writing,
(11:27):
which obviously being a good writeris a huge asset. As an attorney,
I did that.
Then I went to law school at theCatholic University of America,
Columbus School of Law,
it's the other law school inWashington dc and went there
because as many reallyintelligent people do,
(11:48):
followed a girl to my place of education.But it all works out in the end,
even though she did dump me rightas I arrived in dc. So a good start.
But I did meet my eventual wife myfirst year in law school anyway,
so it all worked out. But DC is agreat place to go to law school.
And I was there during a particularlycrazy time with both Bush v Gore and nine
(12:09):
11 while I was living there.So it was interesting, I mean,
literally I walked by the SupremeCourt to get to my apartment every day.
So there'd be huge protests,some guy carrying a giant cross,
somebody holding up an anticircumcision sign for some reason,
all the interesting protests.
And then I was going to stickaround in DC for a while,
(12:30):
but that didn't work out.My wife, or not yet wife,
but she moved to Colorado,
her family lives here.And so I moved back as well and started
work at Perkins EY here,
which had just opened up their Denveroffice because my view of the world was
you got to go to the big firm andeventually be a partner there.
(12:51):
And that's all I ever kind of thoughtof or wanted other than a federal
clerkship.
So I did that for a couple of years andI managed to get a federal clerkship on
the 10th circuit. A new judge hadbeen appointed Judge Tim Kekovich,
with whom my dad hadworked at the ags office.
And actually those who have been aroundin Colorado for a while will remember
(13:13):
the amendment Two case, nothing to dowith guns, but having to do with Colorado,
decided to constitutionallyessentially discriminate
against L-B-G-T-Q folks.
And that went up to the Supreme Court.
My dad did the trial defending the law,
and Judge Kovich was a solicitorgeneral at the time. He did the Supreme
(13:37):
Court argument on behalf of thestate. So there was a tie there,
certainly got my foot in the door afterthat. I worked for Brownstein. Again,
just sort of like thattypical big firm track.
I grew up a little bit under Stan Garnet,
who eventually became theBoulder district attorney.
And his view of litigation was notthe typical view of litigation for big
(13:58):
corporate firms. His view was,fuck it, let's go to trial.
I'm not going to dicker back and forthwith discovery letters and all that
nonsense. Let was just goto trial and see who wins.
And then 2008 recession hitand a lot of layoffs happened,
including myself. But duringmy time at Brownstein,
I had actually done a case for Frank AAR's
(14:22):
firm. He was a client of Brownstein,
and we had a case where he was our client,
and I guess I did a good job becausewhen he knew I was looking for work,
he said, Hey, come jointhe firm. And I was like,
nobody goes from Brownstein to Azar.
I was just about to, there's ajoke there somewhere if they.
Yeah, it was not a realexistential crisis, but I did struggle with it. I mean,
(14:44):
I spent all these years buildingthe resume, doing really well,
trying to get on this track. I asked alot of people what they thought. My dad,
my law school roommate, judge Tim Kovich,
and eventually decided thatI'll take the leap of faith and
realized while there,
although I was doing mostly class actionmass tort stuff that representing human
(15:06):
beings as opposed to corporations wasway more interesting and rewarding.
So yeah. So.
Let me just make sure I got it.
So you did end up going to Azarwhere you're doing mass torts.
Were you on the wage claimswith the Walmart case?
I think maybe a lot of people don'tunderstand the breadth and skill and
knowledge that Azar brings to cases.
(15:29):
So sometimes they might think,oh, it's car crashes only,
but there is a whole world ofamazing lawyering that is going on at
that firm. Was that your experience?
Yeah, so it's certainly like you've gotthe public persona and the public image,
which he's very much involvedin perpetuating. But yeah,
behind the scenes there'sa lot more going on.
(15:50):
I came in at the tailend of the Walmart cases.
They were resolving and settling.
So I got to fly out to acouple of objectors hearings.
And so if people think personal injurylawyers are really kind of bottom of the
barrel, which I know that'sthe public perception,
it's absolutely incorrect becausethe second that you get hurt,
you got to call one of us andyou'll be thankful that you did.
(16:12):
But in a class action,
you can object to the class actionsettlement and it can hold up the class
action settlement for years and years.So I had some involvement in that.
But the main case I focused on,
which was one that did not end upsuccessful was a wage claim against
Hewlett Packard,
and that was out in California in adistrict court up in San Francisco. So
(16:35):
worked on that and eventually foundmy way to a firm called Darling
Milligan Smith and Les,which was a very small firm,
and I was think the sixth orseventh attorney mostly doing
litigation, but a broad practiceand was there for 10 years.
And then I had done some casesco-counsel with folks over at Aborn mi,
(16:57):
including Clay referredcases back and forth.
And when time came for a change,
they were the only people I calledto see if they were interested.
And fortunately they were. And I've beenhere, what, three and a half years now.
So.
Fascinating, fascinating.
You've sort of run the whole gamutwith your father 10th circuit.
(17:17):
It's unusual.
Is it not for attorneys to clerk forfederal judges after they've been in the
workforce for a period of time?
Or does that happen I guess when youhave a new judge that takes the bench?
Yeah, I mean certainly it'snot the typical situation.
Judge Kovich came onto the bench in themiddle of what is normally the clerkship
cycle.
(17:38):
And I had been out for a couple years andhe was looking for clerks who did have
practical experience becausehe was getting up to speed.
And so that wouldhopefully accelerate that.
So I was his second class of clerks inhis first and second class of clerks,
at least there were at least two outof the four of us that had been working
for at least a year inthe regular workforce.
(18:00):
I had been working a couple of years.
Got it. Alright. Well Clay, Jason,
let's talk about this amazing trialthat y'all had in Denver who wants
to give us the factualbackdrop of what happened.
So in this case, werepresented Dr. Penelope er.
Dr. ER's got an amazingbackground as a geologist
(18:22):
turned educator, just kind ofa very inspirational story,
but I think what's most relevant to thiscase and what's most impactful is her
work with directly workingwith science students
in elementary and high school. So shebecame a science teacher 25 years ago,
30 years ago after acareer as a geologist.
(18:45):
And then from that became theleader of the entire science
program for Arapahoe County SchoolDistrict, if I recall correctly.
And then from there starteda magnet school solely
focused on stem science, technology,
engineering and math skills forColorado students within Arapahoe
(19:06):
County School district.
And then from there became the executivedirector of the charter school that we
ended up unfortunately soon STEMschool down in Highlands Ranch.
And so she became an executivedirector there back in
2012 when the school had just beenstarting out and it was kind of
failing. It wasn't doing particularlywell either financially or from a student
(19:29):
performance perspective. Andshe really turned it around.
And over a decade of beingthe executive director,
the leader of that school made itinto just this incredible force
within Colorado education.
It started being some of the highestperforming students in the state started
being nationally ranked and recognized.
And then I think as isall too common these days,
(19:52):
STEM suffered a schoolshooting in May of 2019.
There was a horrible shooting there.
And I think that for the STEMcommunity and for our client,
that was a real game changerand it forced our client to
really commit to theschool in her entirety,
help the school throughthis traumatic event,
(20:13):
be the school leader that she had alwaysbeen from an academic perspective,
but now it was also from a societalperspective and helping these kids who had
been through this horrible traumaticevent become successful students again.
So she goes through all of that andshe's been the executive director at the
school for a decade,
and the school decides that it wantsto start replicating, in other words,
(20:36):
opening other charter schoolswithin Colorado and maybe outside of Colorado with
the same kind of curriculum.
Let me jump in and ask aquestion about that because,
so when you have a charterschool, it is a public school,
is that right?
And that's an importantdistinction, right?
Because so charter schoolsare essentially these private,
(20:57):
usually nonprofit entities thatcontract with a public school district,
in this case Douglas County SchoolDistrict to run a school to run a
public school.
They have this kind of unique entitywhere they're not purely within
Douglas County School District, theyhave their own board of directors,
they have their own budget, they havemuch more latitude on their curriculum.
(21:19):
That's kind of the whole point of it.
And where a lot of charterschools are focused on societal
issues or things like that,
or there's a specific reason for thembeing that separate and apart from
education,
what was unique about STEM and what Dr.Yer did there is that this was a school
that was focused on stem, right?
It was focused on uniquestudents who might not thrive in
(21:43):
other situations,
but because of the environment that shehad built at the school were exceeding
all expectations.
Correct me if I'm wrong, but one of,
and I think that this becomesrelevant on your case,
I thought is as a public school then
she's eligible for para, is that right?
And para for those that don'tknow is an amazing pension
(22:05):
plan.
Do you want to kind of explain toour listeners what para is and why
if you are eligible forit, it's a big deal.
So Para is,
it's the social securityreplacement for public employees.
So folks that are employed by the stateof Colorado, Denver school district,
Douglas County School District,
(22:26):
cherry Creek School District and anumber of other governmental entities
all fall under Para.
And what that means is that boththe public entity and the employee
contribute a certain portion toa guaranteed pension program.
As pensions phased out,this somewhat replaced it,
and it's kind of this quasi 401k ish,
(22:49):
but pension ish type of program whereyou can get a certain percentage up
to a hundred percent of youraverage highest salary as a
public employee.
And so it's a real big incentivefor folks to take on these otherwise
low paying jobs and work at themfor an extended period of time.
So Dr. Eker is a part of thisand when she comes up and it,
(23:12):
she's now been the executive directorfor 10 years and they want to expand the
charter school networkthat they're developing,
they offer her this position as theCEO of this network. In other words,
she would sit above all of the schoolsas they opened other schools and she
would be the visionary leader ofhow are we going to extend this
STEM-based curriculum toall of these other schools.
(23:35):
Still as an employee, asa governmental employee.
Right?
There's a unique piece of parathough that you can retire
for para purposes, begindrawing your pair of benefits,
and then return to work for a publicemployer while still drawing your pair of
benefits,
these benefits that you've been payinginto throughout your decades long career.
(23:59):
And so she was at the pointwhere that made sense for her.
And so she goes through with thisprocess that she had talked with the
president of the board ofdirectors at STEM about,
and she signs a new CEO contract that'sthis three year CEO contract that
would've taken her out intothis year 2025 as the CEO
(24:20):
of STEM schools as a charter network.
She signs that contract,
then she goes through with thisretirement for para purposes,
and then as a result of that,
once a new president comes into the boardand before her contract even starts,
they take the position, STEMschools takes the position that,
(24:40):
well you've retired and thereforewe're not going to honor your contract.
It's a very simplified way of putting it,
but essentially they refuseto bring her back as a CEO.
And were there ramificationsbeyond just the income during that
contract period of time that she's losingor were you essentially filing suit
(25:01):
just for the contractualbenefits of that CEO contract?
We ended up at trial with just thecontractual benefits of the CEO contract.
I mean, was there otherimpacts? Absolutely.
This is a woman who had dedicated themajority of her professional career to
educating students and building upto this point where she could expand
(25:22):
her vision for educating kids whomight not succeed anywhere else but
under the STEM program thatshe had built would succeed.
And that's all ripped away from her.
The impact goes farbeyond financial for her.
The problem is this is a contractcase and we're dealing with a
governmental entity. So because of that,
(25:44):
we couldn't bring any tort claimsagainst the governmental entity.
And so we did have the contractclaim though that got by CGIA,
obviously the ColoradoGovernmental Immunity Act,
and so we kind of narrowed it down.
We had hoped to go afternon-economic damages at trial.
The judge unfortunately shut us down onthat and only allowed us to go after the
(26:08):
economic damages, but wewere able to go after that,
at least the economicportion of what she lost.
So educate our listeners because manypeople might be thinking, well wait,
I thought Colorado was a rightto work state or whatever it is.
You can get fired for any reason. Anytimetoo bad, so sad, go find another job.
So how is your client able to bring aclaim for sort of sounds like wrongful
(26:31):
termination or something like that?
So Colorado is an atwill employment state,
and what that means is theemployer or the employee
can end the employment relationshipfor any reason or no reason at any time
without notice,
so long as it's not for adesignated improper reason, right?
(26:52):
You can't fire somebody for refusing toengage in illegal conduct or you can't
fire somebody because of theirrace or religion, things like that.
Protected class.
Right,
or protected activity that at will statuscan be modified through a contract if
there's an employment contract,
then written employment contract orverbal employment contract in some
situations that governs right,
(27:14):
and that limits theability of a company to
terminate or otherwise changethe terms of employment.
What's interesting in this case is wedidn't even get them right because they
refused to even employher under this contract.
So it truly was therewas a contract in place,
they agreed to employ her and they refusedto abide by those obligations. What.
(27:37):
Did you have to prove? In other words,
what did the contract say they wereallowed to terminate the contract for
and what was their reasoning fornot agreeing to go through with the
contract?
Jason, do you want to jump inhere and discuss that aspect?
Yeah, sure. I mean, so again,
and we're talking about a writtencontract signed by both parties
(28:00):
in March of 2022 with a start date
of August 1st, 2022.
So the contract was actually very simple.
It's not a typical C-suite contractthat's going to be 20 pages with a golden
parachute and anything like that.
It was a couple pages and there werethree ways to terminate the contract,
(28:21):
two of which were irrelevant.
The only one that mattered was bymutual agreement of the parties.
And so there was no way foreither party including our
client,
let's say she just decided halfwaythrough her tenure under this contract,
she just didn't want to do itanymore. She can't do that.
She was stuck in this contract. Theywere, unless there was a mutual agreement.
(28:44):
And so the school,
like Clay said earlierwhen she said, look,
I'm going to step awayfor short amount of time,
I'm going to have noinvolvement with the school,
that's going to be my retirement. So Ican start collecting my para benefits and
then I will start thiscontract on August 1st.
The school took this insane positionadvocated by this other lawyer that was
(29:09):
representing them at the time that wasjust absolutely legally incorrect in our
view that well, if youretire, then you retire.
And that somehow acts as her not
honoring or repudiating thecontract. And so when she said, no,
that's not what's happening here,and said, before August 1st,
(29:29):
before the start date of the contract,
I have every intent to come backand start my job on August 1st under
this contract. They saidno. And our response was,
where is the mutual agreementto terminate? There isn't one.
And we can get into sort of the OpenRecords Act and the Open Meetings Act
things, which really made it, in our view,
(29:52):
impossible for the schoolto make a good faith
non frivolous claim thatthere was a mutual agreement,
but they did so nonetheless.
Yeah. So let's talk.
What was their in court excusefor why they did what they did and
then what's the real story andhow did you find the real story?
Yeah, so I'll start briefly.
(30:13):
So the story in court was you retire,
that means you retire and thiscontract is no longer in existence
and they claimed that somehow thepara rules themselves prohibit
a para eligible employee fromagreeing in advance of a retirement
to come back. Well, that'sjust not true. In fact,
(30:35):
para documents specificallycontemplate this,
and the school had done this with anemployee prior to Dr. ER doing it.
The real story,
which was discovered through corerequests and other documents and witness
testimony in trial was that a lotof people, for whatever reason,
despite her extraordinarysuccess helping their children,
(30:55):
didn't like Dr. Eker.
They said she ran the schoollike a business and they thought she was overpaid.
And it ended up being likea lot of stuff is high.
School all over again, right? Right.It's like the cooler talk of people.
I'm just imagining these teachers orschool administrators just sitting there
talking smack and then it justbecomes this toxic work environment.
(31:16):
And in my mind, I'm telling myself allkinds of stories of how this went down.
And I'll let Clay take over on what wasin the text messages and everything that
prior counsel obtained through Corabecause it was like high school cliques.
It was like mean girls.
Oh my God. Yeah. And Jason alluded to,
I mean a lot of credit goes to ourpredecessor counsel over at Lewis Rocha,
(31:37):
Angela Viic and Paige Johnson over therewho represented Dr. Ecker right after
she was terminated they got right onit and they sent out Cora request,
Colorado Open Records Actrequest to the charter school.
Before the lawsuit was filed.Is that right? Alright,
so talk to us a little bit about thatand the ability to use core requests.
So the Colorado Open Records Actright is the state version of foia.
(32:00):
Essentially what the Open Records Actsays is that any public entity who's
conducting public business has tomaintain all the records regarding public
business and public finances thatextends to charter schools who are public
schools under public school districts.
And so our predecessor council was ableto request things like the text messages
(32:21):
between the president of the board ofdirectors and the vice president of the
board of directors.
They core requested all the emailcommunications between the board
members who made this decision not toallow our client back about that decision.
I have a question about the text messages.
We have a system here where we cantext our clients and it goes into our
(32:42):
software. Did they have that or didthey literally take screenshots?
I'm just wondering,
you're just relying upon the honor systemof two people texting each other to
actually preserve that.
As much as we get into these battleswith opposing counsel, right?
Eric Hall who was on theother side of this case,
a very straightforward honestattorney to recognize that, look,
(33:04):
there are these text messages,they exist, they're responsive,
we're not going to hide them, we'regoing to deal with it straightforward.
And a lot of credit goes to him of doingsomething that I fear that there are
less scrupulous attorneyswho would not have done,
but at the end of the day they did.They took screenshots on the president,
took screenshots on her phone,
(33:24):
and those were produced very quicklyas a result of core requests.
I'm literally in shock. I feel like thatwould never happen in one of my cases,
but maybe it's just my luck in the world.
Well, keep in mind it's gotto be the governmental work.
So a lot of, particularly in the attorneygeneral's office here in Colorado,
(33:45):
they are required to have two phoneslike personal phone and government phone.
And if you do any governmentbusiness on your personal phone,
well that is going to bring everythingin your personal phone into the net of
Quora requests. Part of the problemhere is as Clay talked about,
is this charter school hasits own board of directors.
It's not governed by theboard of directors of Douglas County schools and it's a
(34:09):
voluntary board and that obviouslyis a difficult position to be in,
and they may not really have all of theexperience that they need to understand,
gee,
you probably shouldn't text poop emojisabout somebody that you don't like
because it's going to be found out.
Or it's going to be blownup as a huge demonstrative.
And I'm going to be questioning youabout what you meant by that poop emoji,
(34:32):
which is something thathappened in the case.
It's just fascinating,fascinating, fascinating. So,
and I think I cut you off, clay.
You were talking about the textmessages and other information.
I think that we were going tothe real story of what was going.
On. Yeah, I want to jumpback to that real quick.
So we've used that in other caseslike civil rights cases for instance,
(34:53):
and sending core requests to policedepartments and other entities like that,
that may be a target as a defendant.And it's not part of discovery.
It's much broader than discovery.
So you can ask for any publicdocument regarding any issue and it
allows you to do a pre-suit discoveryin a way that's much broader than
(35:15):
you might actually getit at the end of the day.
I think this case would've looked a lotdifferent if Angela Viic and her folks
over Louis Rocha hadn'tjumped on this immediately.
It sounds magical,
not having discovery disputehearings with your Cora requests.
Well, and then I mean whatended up happening is there was very little document
discovery in the case because they haddone such a good in those core requests.
(35:38):
And I think any case,
I feel in my gut that there's stuffthat we left on the table, right?
I'm sure there was other documentsout there that we could have gotten,
but at the end of theday, there was enough.
And I think that we were ableto tell a very compelling story
of like Jason was saying, a mean girl,
which is exactly what our client calledthe situation on the stand where she
(36:01):
was being targeted by a groupof board members who didn't
want her around anymore.
And they saw this as their opportunityand they got really bad advice from an
attorney who testified that they couldjust simply walk away from this contract
that obligated them toemployer for three years.
So I want to come back for sure,
to the excuse of ourattorney told us it was okay.
(36:24):
But before I do that,
how did you all formulatethe theme and story of this
case to make the jurors care about this?
It seems it's fascinatingbecause I'm geeked out by it.
Definitely a wrong has occurredhere, but I'm a lawyer,
maybe I like these things are jurors oris there a concerned jurors are like,
(36:46):
well, so what? Go get a differentjob or something like that.
I could show you our war room andI don't know if it's been a race,
but we have this huge one wallthat's all dry erase, right?
And Jason and I filled up that entirewall probably three times over trying to
map out everything.
It looked like a crazy person drawingthe string lines between two different
things. But I thinkwhat we ended up doing,
(37:09):
and we went through so manydifferent iterations of this,
and this is where I want Jason to jumpin here in a minute. On the focus groups,
we found out that really peoplegot that our client cared.
They got her backstory of being a caring,compassionate teacher and educator,
and that's pretty apparent on its face.
(37:30):
What we needed to tell thestory of is that she got set up
and there was a motive here and thatthis was a decision that was motivated
by a desire to get her out of there.
That became our story because wehad some amazing testimony from a
former board member that reallytold this story of how they tried to
(37:52):
take advantage of this situation thatshouldn't have in any way impacted her
ability to return as CEO of the company.And so we learned a lot of that.
I think from the focus groups.
I'd love to hear how focus groups help.
It almost sounds like betrayalor some kind of word that
evokes intense emotionalresponse. How'd you find that.
(38:16):
Betrayal is if you canfind betrayal in a case,
it is one of those fundamental humanemotions that just triggers people.
It really does. We all know thatlogic and facts do not drive a case.
They are sort of the carsthinking about a train analogy.
Those are the cars carrying the cargo.
The engine of any trial train is a motion.
(38:39):
And we did a couple focusgroups through Mojo Consulting,
reach out if you want tohave your case focus group.
But the first focus group we did was whatwe call just a perception focus group.
And we give them a very general neutral,
maybe defense heavy slightly narrativeof the case and then just start
asking open-ended questions much like youwould do during a voir dire if you had
(39:02):
the time to do it, which you don'tColorado, which is a problem.
But one of the things that afocus group member said was
sounds like she was set upthat didn't come from us,
that came from them organically.And we knew there was some of that,
but you don't want to look at theworld with a conspiratorial lens.
But when focus group members justaverage Joe's off the street,
(39:24):
start looking at things and saying,this just looks like she was set up.
And then we had the evidenceto substantiate that.
It really gave us a good insightinto we can use that betrayal setup
as our emotional engine. Andso Clay alluded to one of the former board members,
a gentleman named James Hardy,who in my view very courageously,
(39:45):
he's a former board member.He has no obligation to us.
He actually quit at a protestwhen all of this went down back in
2022 because what he saw in his view was
very problematic.
He felt they were trying to manufactureattorney-client privilege where none
should exist,
particularly with an entitythat is bound by the law
(40:08):
to keep its meetings open to the public.And his testimony
was not dynamic, right? Thiswasn't a Perry Mason moment,
I really kind of had to draw it out ofhim. But he had sent a, what was it,
six eight page single space,
10 point font email to the boardof directors long before any
(40:29):
of this got hot with lawyerslaying out what he saw were the
problems,
and he sent it to the president of theboard of directors and the other board
members. And during trial,
when we asked the president of theboard of directors, whether she read it,
she said, I skimmed it. It was very long.
You could see the jurorsrespond, are you kidding me?
(40:51):
This man takes the time and effortto lay out chapter and verse and
you just basically slough it offthat dismissiveness or was sort of an
undercurrent during the trial.
So who's your first witness?
Was it the board member that wrote thesix page letter or was it the president
of the board had to havebeen one of those two people.
Right? It's the former,
it was the board member who resignedwho sent the letter and look,
(41:14):
every great trial lawyer knowsyou need to start your case
impactfully,
but also with a witness who'srelatively uncrossable or unimpeachable,
somebody who has no skin inthe game, those kind of things.
And he turned out to be avery good first witness again,
although not dynamic in his testimony.That was really interesting.
And that letter, I mean we kept comingback to it over and over and over again.
(41:37):
Every one of their witnesses,
we would ask them about phrases andsentences and quotes from that letter and
they had no answer to.
It. Was it exhibit one?
No, it wasn't. The contractwas exhibit one. Okay.
Okay. That's fair Question.
Talk to us a little bit aboutadvice of counsel as a defense.
So sometimes we see thiscome up in bad faith cases,
(41:59):
things along those lines. Howdoes it apply to a case like this?
What's interesting is it doesn't,right? They tried, frankly,
they pled very limited defensesin this case and their defenses
were a moving target.
And I think if there's one thing thatI've taken from this case and working with
Jason on this case in particular,
it's being tenacious about those pretrialmotions and educating the court about
(42:24):
what your objections are going tobe because they were all over the
map on their defenses and they wereessentially trying to smuggle in an advice
of counsel defense in a contract case.
Advice of counsel is only adefense to an intent-based claim.
You have to have some sort of intentor knowledge element that your
(42:44):
counsel's advice negates that yourcounsel advised you could do this.
So there's no way I could have intendedto do anything wrong in a breach of
contract case, you don't have that.
There's no intended requirement.And so we advocated for both in
pretrial motions,
in bench briefs in I think thatthere was at least one hearing in the
(43:05):
few days before the trial that Jasonhandled trying to push this idea to the
court of they can't rely on thisattorney to absolve them of a breach of
contract claim. And slowly the judgecame around to us and we were able to,
when we cross-examine that attorney,when they put 'em on the stand,
we were able to really box them in.
And the judge issued a contemporaneouscurative instruction in the middle
(43:29):
of this attorney's testimonythat you can only consider this
testimony for the effect ithad on the board members.
The advice of counsel is not a defense.
And so we were able to really kind ofthrough what felt to me at the time as
over objecting, right?
Standing up in front of thejury and objecting repeatedly,
(43:52):
but also having educatedthe judge so much before,
and Jason having done so much work there,
we were really able to box this guy in.
And then we were also then ableto create this closing argument
of what all of this is really theresult of is bad decisions that
were the result of a bad attorney.I mean, at the end of the day,
(44:13):
it actually I think ended up benefitingour case for them to rely so heavily on
this attorney who was so obviously wrong.
Just so I make sure thatI understand the law,
I will confess that I am not well versed.
So if you had pled orhad punitive damages,
damages or somethinglike that on the table,
then the advice of counselwould be relevant to that,
(44:37):
to the intent behind punitivedamages or like a fraud claim.
But because this was justsimply a breach of contract,
if a lawyer says you'reokay to breach the contract,
the issue is just whetherthey breached the contract,
not why they breach the contract.
And so I do a lot of whistleblowerwork. And so in those cases,
a lot of times it'sfraud on the government.
(44:57):
And so you have to prove thatthey knowingly committed fraud.
And you'll see a lot of advice of counseldefense in those situations, right?
Because there is this knowledge element,
there's an intent element that you haveto prove that doesn't exist for contract
cases. And so we were verymuch able to, I think,
use that to our benefit where they thoughtit was a big benefit for them of this
(45:18):
well-respected attorneythat they had had for years,
was advising them that they could dothis when in fact he didn't look at
anything. He didn't do anythingto confirm his opinions.
He was just shooting fromthe hip and he was wrong.
And so would a quick Google search tellyou advice of counsel does not apply to
breach of contract claims.
A pretty quick one, and Clay'sunderselling it a little bit here,
(45:41):
and I'll let him tell the story of hiscross of the attorney, Barry Arrington.
But what you have hereduring the depositions,
what we heard over and over and overagain, the president, the vice president,
other board members who were deposedis you could hear them saying
a literal talking point given tothem, I'm sure by counsel was, well,
(46:02):
Barry Arrington told us thiswas the way para worked.
This is what Para said. Well,
Barry Arrington in our view was dead
wrong. And the fact that allof these people relied on it,
I almost
feel bad for them as voluntaryboard of director members.
(46:25):
But at the same time,
para rules and para pamphlets arewritten in very plain English.
They are intended for non-lawyers.
And they lay out very clearlywhat para allows you to do
vis-a-vis retirement and coming back.
And all they had to dowas read those themselves,
(46:45):
but instead they relied on thislawyer who just led them astray.
And so during clay's,
it was a joy to watchbecause what clay did was
box 'em in. And Clay, I don'twant to ruin the climax here,
tell them what exactly thisguy copped to on the stand.
Well, so we were able to run throughall the things that he didn't review.
(47:08):
And my final line of questioning thatwe had thought about beforehand was
his interest in the outcome of this casethat he had a personal interest in this
case being a good outcome.Because if he didn't,
then the school would have a claim againsthim for the effects of his incorrect
advice that he gave them the advicethat essentially embroiled them in this
lawsuit. And so he hems and haws about,
(47:31):
I don't know what you mean by personalinterest and things like that.
And then I asked himthe final question of,
well have you put yourprofessional liability carrier on
notice your insurance carrier on noticeof a potential claim by the school?
And I had no idea whathe would say, right?
It's not a question I'd asked thedeposition, I just figured yes or no,
it didn't really matter to me.I just wanted to be out there.
(47:55):
And he had put them onnotice of a claim and
that they were under, I think under atolling agreement or something like that.
And I just ended mycross-examination right there.
I had another page of stuff to gothrough and I just looked at it and said,
I have no further questions,
because I think it drove home tothe jury this idea of they were
(48:16):
grasping at straws to try to finda reason to get rid of our client,
and they found it in this attorney whowas just telling them what they wanted to
hear, whether it was right or wrong.
So what was the end verdict?
And because I know theanswer to this question,
did you get any interesting questionsfrom the jurors as they were deliberating?
(48:37):
I'll do the end verdict and then I'lllet Jason talk about the juror question.
So we had every dime that we asked for,
so we went up there and we asked forthe three years of her base salary under
her three-year contract,
plus the value of the paid time off thatshe was promised under the contract.
And it ended up being, God, you'regoing to put me on the spot here.
I think it was
$949,634
(49:01):
and 60 cents, something likethat, right under 950,000.
And so the jury, we askedfor that from the jury,
we weren't able to ask forthe non-economic damages that we had hoped for,
but I think that it was a goodmeasure of the economic impact
for, and I'll let Jason talkabout the deliberations.
Yeah.
So Clay gave a great closingand continued to use these text
(49:25):
messages in closing with the poopemojis and the mean girl stuff back and
forth. And so the jury goes out,
they get the case Fridaymorning just before lunch,
and I have told everybodyI've worked with,
if I had my druthers closingargument would happen,
and then I would fly to some remoteisland and have no ability to access the
(49:45):
internet.
And then I'd come back six months laterand somebody would tell me the result.
And because the waiting for the jury,and then when the jury comes in,
it's literally the worstphysical feeling I have.
It's like driving by a cop doing 95to the nth degree. It's way worse.
But so we get a question. In all honesty,
we were pretty confidentinstructions had gone well.
(50:06):
The defense counsel had agreed andstipulated to an instruction that they had
essentially the burden to prove thatour client terminated the contract.
And a jury question comes back, andI won't be able to quote it exactly,
but it was,
are we limited to the$978,000 or can we give
(50:27):
more money?
In my dreams, it's like,
can we have a calculator or what if wewant to award more than they've asked
for? I don't know if I'll everget that question, but Oh my gosh.
Yeah. I mean, certainlyby leaps and bounds,
the best jury question I've evergotten, and this jury was smart. I mean,
the questions they asked, they asked alot of questions of a lot of witnesses,
(50:49):
and the judge allowed someand didn't allow others.
And the ones that they asked, even ifthey weren't actually asked on the record,
were smart.
They clearly knew what someof the legal issues that they
weren't allowed to considerwere. They were insightful.
And they came back basically afterfinishing their sandwiches and gave us
(51:10):
literally every dime we asked for.
There's a couple of things that Iwant to throw in there real quick.
We got that question.
We had stayed to tear down all thestuff and all the monitors and stuff.
So Jason and I are there helping andworking with our team to tear all that
down. Defense counselhad gone to eat lunch.
And so we see the question come outand we see the judge kind of look down,
(51:32):
shake his head a bit and say,we've got a jury in question.
And then we had to wait for defensecounsel to come in from his lunch.
And I don't know why he leftagain, frankly after that question,
but it was pretty impactful.
I will say one of the big things too thatI learned in this case is to use your
young associates. So Jason and Ihad an associate from our firm,
Ingram Wilkinson,
(51:52):
who's got the most stellar resume ofprobably anyone at our firm. He's just
incredible background, incredibly smartlawyer, but relatively young, right?
This was his first witnesses. Hetook a couple of cross-examinations.
He did our Rule 50 motion when we triedto get essentially a ruling in our
favor, but the jury saw that, right?
(52:13):
And they saw that we wereallowing somebody with a little less experience to get
up there and do their work andget the benefit of this trial.
And I think they really appreciated it.
You could see them actually paying alittle bit more attention to him than
opposing counsel who obviously had beendoing this for decades and was very good
attorney.
But I think they were appreciative thatwe allowed a young attorney to have some
(52:36):
time in court.
What a just phenomenal result ifpeople want to get ahold of you.
So my first question,
how do they get ahold of you and whattypes of cases does your firm handle?
I mean, it sounds like you are doinga lot of some business litigation.
I know you all do supercomplex product liability,
personal injury cases. So real quick,
(52:58):
what kind of cases should people reachout to you and how do they get ahold of
you? Start with you, Jason.
Yeah, sure. I do notspecialize in anything.
And so basically I helpanybody who's being screwed,
and that can be personalinjury, it can be employment,
it can be defending a small businesswho is getting taken advantage of by a
larger business, CanOx lanes,
(53:22):
it's big business commerciallitigation fighting that.
It does run the gamut. Youcan email me at jason wa
soki@omtrial.com.
Our phone number is (303)592-5900. But before we leave,
I do want to make sure we getthe Lebowski story, but go ahead.
Clay. Oh yes, the Lebowski story, andI mean there was no disrespect, Jason.
(53:45):
He knows this, that I have suchrespect for Jason as an attorney,
so absolutely phenomenal.
So most of what I do iswhistleblower adjacent.
I represent a lot of whistleblowers inemployment claims, retaliation claims,
and then in keam and bounty actions.
So folks who know about illegalconduct or fraud on the government
(54:07):
or fraud in relation to securitiesfilings, things like that.
That's the majority of my work.
I also do a lot of just runof the mill employment work,
like this employmentcontract case, but we also,
we've represented some pretty highlevel folks in discrimination cases,
things like that. Ourfirm as a whole though,
I mean we essentially run thegamut on the plaintiff's side.
(54:27):
We do everything from complex personalinjury with a focus on brain injury work
to complex legal malpracticecases. On the plaintiff side,
our partner Michael Mimand Nicole Quintana,
they do just a phenomenal job withthese complex legal malpractice cases.
We've got folks here who doconstruction litigation for both
(54:48):
subcontractors and general contractorsas well as on the homeowner side
for construction defect. But we'vegot folks who do wrongful death cases.
Pete McClanahan at our office does anamazing job with medical malpractice
cases. Then we've got MurrayAborn, who I think, I mean,
he's in the office every day at, Ithink he's 82 now, something like that.
(55:09):
And he's just a wealth ofinformation, but he takes everything.
So we do run the gamut. I willsay it's mostly on the side of,
it's entirely on the side ofpeople who have been screwed.
We do try to fight the man a bit here,
even if we end up beingthe man in some situations,
I think our firm's real focus is on trial.
That's why I appreciate this podcast somuch is gives us the story to tell about
(55:30):
a trial that we were successful.
So obviously big fan of themovie, the Big Lebowski,
and it's funny because JudgeEff, who presided over this case,
his trial management orderis his case management order,
literally says in it, try to havefun. This can be a fun profession.
(55:50):
And so maybe taking that a little bit too,
literally during the cross-examinationof one of the board members,
an attorney whose name is Linda Davison,
who worked with my father atthe attorney general's office.
So I was asking her aboutsome of these text messages.
And one of the text messages said, Linda,
I agree with Linda thatDr. Ecker is playing us.
(56:15):
And so I asked Ms. Davidson, I'm like,
did you say that my clientwas playing you? And she goes,
I don't know what you mean. And I said,well, let's, at the text messages here,
it says, I agree with Linda that Dr.ER's playing us. Did you say that?
What'd you mean? And she goes, I don'tknow what you mean by playing us.
And I said, in the normalparlance of our times,
(56:35):
which is a deep cut froma Big Lebowski quote,
but I know Clay got it because he had tobite his lip. He was right next to me.
And then I'm fairly confident at leastone of the jurors got it because he
immediately leaned over to a fellowjuror and kind of whispered in her ear.
So that was actually kind offun. And Clay had the great idea,
(56:56):
which I probably will do in grabbingthat piece of the transcript,
maybe sending it to the Cohen Brothersor Jeff Bridges for an autograph.
I just think they're such apractice pointer, honestly,
in that not takingyourself too seriously and
humanizing yourself to thejurors. So I love that story.
(57:18):
Clay, Jason,
thank you so much for taking the timeout of your very busy lives to speak
with us. And congratulations on anamazing verdict. And until the next one,
we'll look forward to justice beingserved out there in the courtrooms all
across Colorado. Thanks everybody forlistening. Thank you for joining us.
We hope you've gained valuable insightsand inspiration from today's courtroom
(57:40):
warriors. And thank youfor being in the arena.
Make sure to subscribe and join us nexttime as we continue to dissect real
cases and learn fromColorado's top trial lawyers.
Our mission is to empowerour legal community,
helping us to become better trial lawyersto effectively represent our clients.
Keep your connection toColorado's best trial lawyers
(58:00):
alive@www.thectlc.com.
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