Mystery Case

Is it ever in the best interest of the client to appeal to the state supreme court for the right to continue to be served by a law firm (in this case the firm of Olsen and Traeger, LLP, in which Kent Olsen and Douglas Traeger are the name partners) which has so pissed off the trial judge by their conduct that the trial judge ordered them disqualified from participating in the case, even if the trial judge was wrong?

Likewise, is it ever in the best interest of a law firm to appeal a disqualification, so that, even if you prevail, everyone with internet access and everyone who reads the Colorado Lawyer will know within the month that you so pissed off a trial judge that your were disqualified from the case? In particular, does it make sense to do this when the remedy you get when you win is that the very same pissed off trial judge gets the privilege of making more findings of fact about why your firm is so truly evil that it must be banned from the case on remand?

Wouldn't it have been smarter for the firm and the client to go their separate ways, for the firm to pay the small $5,000 attorney fee award to the other party that resulted from their misconduct, and to keep the incident buried in an obscure trial court file that would be mere gossip to courthouse insiders and nothing more? Indeed, given that you were caught red handed and had to admit it, wouldn't it have been even better strategically, to have withdrawn from the case before the judge had an opportunity to declare your firm deplorable in a court order?

Why this case played out the way that it did is a mystery whose resolution likely has the name ego. If you ask me, this firm has made serious strategic mistakes in deciding to bring an appeal, as well as having made a serious tactical mistake that led to the appeal, even though it nominally won its case in the state supreme court on the issue it raised. Trial judges have vast discretion on a multitude of issues, and to prevail in appealing those issues, you must show not just that the judge would have been wiser to rule the other way, but that the decision was an abuse of discretion. This is a very difficult place to be putting your client.