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(Leah Hogsten | The Salt Lake Tribune) In an effort to prep herself for argument before the 10th Circuit Court of Appealsl, Peggy Tomsic and James Magleby practice in a mock appellate court in their offices. James Magleby and Peggy Tomsic are the lead attorneys for the plaintiffs in Utah's same-sex marriage case. The two are taking over the fund-raising efforts for the case.
Utah attorneys fighting for gay marriage are used to winning

Courts » As they brace for the next round, attorneys fighting Utah’s same-sex marriage ban look to chalk up another victory.

First Published Apr 07 2014 01:01 am • Last Updated Apr 08 2014 02:00 pm

When Mark Lawrence asked attorneys James E. Magleby and Peggy A. Tomsic to take on Utah and its ban on same-sex marriage, they had one question for him: Why us?

Lawrence, it turns out, had done his homework. He told the pair he was looking for lawyers with a winning track record of doing hard things "because this is going to be really difficult."

At a glance

Career highlights for James Magleby and Peggy Tomsic include:

» Won $134 million verdict in USA Power v. PacifiCorp, et al, 21st-largest verdict in nation in 2012 (Tomsic and Magleby)

» Successfully defended Portland General in $1 billion claim in Bonneville Pacific bankruptcy (Tomsic)

» Achieved $4.7 million verdict in Haug v. La Caille, breach of partnership and fiduciary duty (Magleby)

» Reached $45 million settlement in ClearOne v. UBS, a securities dispute (Magleby)

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Magleby and Tomsic had squared off against armies of attorneys with endless resources in the face of long odds on behalf of underdogs before. A notable example is the $134 million verdict they won in 2012 for USA Power, a utility firm started by three people, against behemoth PacifiCorp.

But the fight Lawrence proposed seemed incredibly daunting.

This is, after all, Utah, among the most conservative states in the nation and home to a worldwide faith that has thrown sizable support into the defense of man/woman marriage laws. Besides, at that point, everyone envisioned a legal battle akin to California’s Proposition 8, with two years of preparation, a monthlong trial before a judge, scads of witnesses and evidence, and full-on, bare-knuckle litigation.

The price tag, they figured, was at least $3 million — and more if the case went before the 10th U.S. Circuit Court of Appeals, as it will this week, and possibly the U.S. Supreme Court.

And, of course, Lawrence didn’t have any money.

The two attorneys didn’t flinch or tell Lawrence, as nearly everyone else had, that he was crazy. They kept listening.

Lawrence, an information technologist from West Valley City who founded the advocacy group Restore Our Humanity specifically to challenge Utah’s marriage ban, was "really persuasive," Magleby said.

"Nobody I knew had ever heard of him," Tomsic said. "It was like, wow, he’s a real grass-roots guy. He’s coming from nowhere with a big heart and a big vision of how to change the world. It was awesome."

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The attorneys realized the risks were substantial and numerous. They had experienced hatred and threats before — Magleby when he represented a former partner of La Caille restaurant — but what about their families, their children in particular? Would the case be a financial hardship for their Salt Lake City firm, Magleby & Greenwood? Would it hurt their ability to attract and retain clients?

"I didn’t care," Tomsic said, "because this was the right thing to do, and I was willing not to get paid. I was willing to take whatever risks there were and work my heart out for this because it needs to happen, and if I can help do it, I’m there."

Still, there was one more consideration — a big one.

"We didn’t just take this case without thinking long and hard about the merits of it," Magleby said. "We knew the worst thing that could happen for our clients or for the bigger picture [of marriage equality] was to take this case and get our a-- kicked."

They devoured court records in other same-sex cases and concluded, as Magleby puts it, "Holy cow, this is a winner. It’s not even close!"

"We didn’t know at which level we would win," he added, "but we knew in the long run we were right."

Sure, the state might go after a big trial, with lots of witnesses and mountains of paperwork, the attorneys figured. But what they knew from PacifiCorp and other big wins is this: "We’re as smart as anybody else and we know we’ll work harder," Magleby said.

And with that, they were on board.

What they never anticipated is that the challenge to Amendment 3, overwhelmingly approved by Utah voters in 2004, would go as quickly and as efficiently as it did.

The attorneys filed the federal lawsuit March 25 on behalf of plaintiffs Derek Kitchen and Moudi Sbeity; Laurie Wood and Kody Partridge; and Kate Call and Karen Archer. On Dec. 4, U.S. District Judge Robert J. Shelby heard oral arguments.

"It was not a hard, intellectual legal argument," said Tomsic, whose opening statement has been described by some as historic. "It was getting across the point it’s time, it’s time now, and do it in this case."

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