Insights

by James D. Crosby

The Rat Hole

In the to and fro of modern litigation, at the speed at which we practice these days, I occasionally, not very often, but admittedly, occasionally, get myself stuck in that devolving rat hole of acerbic email exchanges with opposing counsel that start to drift from the professional to the personal. I get my hackles up and my competitive juices start to flow (but not in right direction), and I step into that rat hole with my opposing counsel, my colleague. We go at it, back and forth, emails flying, email-response-email-response, back and forth, we fall into presuming bad faith on each others part, questioning each others motives, and painting each other personally with our respective client’s litigation positions. We let our usually stellar professional demeanors and calm dispositions slip into “oh yeah, well, take that” mode. It becomes an unprofessional, unproductive, condescending, rat hole of battling egos.

And, frankly, most civil litigators are pretty good at it, they can do the back-and-forth all day – parsed words, pithy retorts, and ever-so-subtle comments implying bad faith and slyly underscoring the weak lawyering skills or lack of experience of your opponent. (And, guys, let’s be honest, the rat hole does trend male!) Litigators, trial lawyers, we’ve all been there, or been tempted to go there. I have. Been there, done that – not very often, but, I have stepped into that mess. And it’s not good. It’s a down-spiraling rat hole. And, in all instances, its dangerous, not good for your client or his/her pocketbook, not good for your practice or career, and not good for your health.

First, the rat hole rarely, if ever, moves your case forward in a productive substantive way, and you will most always create email exchanges that look awful, if not downright juvenile, when laid bare before the court in a subsequent motion. In the heat of rat hole battle, you could also put something in writing, without taking time to reflect on ramifications, that harms your client’s position or glues you to a position that you don’t want to be stuck to. You may also be ruining the professional relationship that you might unexpectedly need for an extension or some extra time two months later. The rat hole breeds grudges that demand retribution.

Second, the rat hole is just a terrible waste of your productive time, and money, either yours if you don’t bill for your rat hole time or your client’s, if you do.

Third, if you are a frequent, habitual rat holer, word will get out. It will hurt your practice and career. Your reputation will suffer. Your brand will tarnish. Your opponents will be wary of you, not because you’re a great lawyer, but because you cannot be trusted and because litigating in the rat hole with you is just awful. Colleagues will stop referring you clients because they don’t want to tarnish their reputations by exposing their clients and referrals to your rat hole-ness. Attorneys are terrible gossips. As a rat holer, you will surely become a frequent topic of such gossip. And that’s not good.

Fourth, unless you are by nature a bit perverted, the rat hole is just not good for your well-being and health. Its profoundly negative. You usually get attacked personally, your skills and experience get impliedly, if not expressly, questioned. That’s not fun. And it is wholly unproductive. That pithy well-constructed attack sentence may make you feel good when you click and send. But, it’s effects are ephemeral at best. There will be a response, and you will counter. Every one must have the last word in the rat hole.

The rat hole, it’s just not a good place.

So avoid it. Don’t step in the hole. Take a breath, take a walk, reflect a few extra more minutes before you send that nasty email or respond to the nasty one you just got. Is it necessary? Is it worth it? Does it further your client’s cause? The sharp, well-landed, punch or counter-punch may feel good at the moment, but,…. really? Keep on steady ground, fight hard, go at it, but don’t rat hole.

And, if you slip, step in, start to get sucked down into the rat hole. Stop. Just stop. Climb out. Pick up the phone. Email, text, whatever. Contact your opponent, your colleague. And simply, forthrightly, apologize for your tone and conduct, for your rat hole-ness, re-set your relationship as best you can, and go back to fighting for your client, hard, but on substance, on procedure, and on the law and the facts, on the steady ground of competence and professionalism. If an apology for your rat hole-ness is not in the cards, ok, just stop, move on, and work to rebuild your relationship with counsel with words and deeds going forward. But, either way, really, stop and climb out! It’s just that simple. And, I assure you, in most every instance, your opponent will want to climb out of that hole too. That has been my experience from my few trips to, and climbs back out of, the hole. Because, except for those habitual holers, and we all know who they are, nobody really likes the rat hole!

And if your opponent, no matter your professional overtures, words and deeds, wants to stay in the hole with the rats, let him. Just don’t jump back in yourself. Bottom line – avoid the rat hole! It’s not good for your client, or for you.

by James D. Crosby

Cocktails with Counsel Podcast – Coming Soon!

by James D. Crosby

I Miss Court.

We have adjusted to our locked-down litigator lives. Zoom depositions. Video and court call appearances. Working from home. Video mediations. Empty offices. Causal attire. Masks. Distance. Worries about getting others sick, about parents/loved ones, about getting sick. Cases move forward, discovery proceeds, motions are heard, depositions are taken, trials are set, cases are settled, new cases are filed. And the months pass. It has all kinda’ worked. It’s ok.

But, you know, …

I really miss being in a courtroom. The whole thing. Walking into the courthouse. Riding the elevator up packed with lawyers. Seeing and chatting up friends in the halls. Sitting with colleagues waiting through a long calendar for my matter to be called. Hearing other lawyers argue their cases. Interesting motions, stupid motions. Good arguments, stupid arguments. The judge-lawyer banter. Happy judges, terse judges, hard-to-read judges. Hearing my matter called. Appearing. Arguing. CMCs. TRCs. In-limines. Standing up to give opening. Cross-examining witnesses. Closing. Waiting on a jury. Taking a verdict. Winning. Losing. Those nobody-wins results. Even just walking back to the office along a crowded downtown sidewalk. All of it.

I miss court.

by James D. Crosby

The Line.

Sometimes I think running your own practice is best described as, everyday, walking a line – the line between doing the work and getting the work. Spend too much time doing the work, you don’t have enough new work. Spend too much time getting the work, you struggle – working late or weekends – to do the work. The line, there to walk everyday. Some days I feel like a soldier, in shiny boots, rifle in hand, chin up, head erect, eyes forward, marching, in identically-calibrated steps, the line perfectly. Other days, I feel like a drunk, pulled over by a traffic cop, asked to walk the inebriation line, not even knowing where the line is. But, you plow ahead, everyday, you strive to do your best work every time, you get the work done and timely filed, you keep the clients happy, you hustle for new work, you pay the bills, you take some money home, you handle the ups and downs of private practice, you juggle work and home, and you move forward – everyday, happily walking the line, your line.

by James D. Crosby

Working 3.0 – San Diego Court Update.

San Diego Court Update:

The Superior Court in San Diego has now closed except for emergency matters through April 3. All civil proceedings are continued. But, electronic civil filings are ongoing. We understand they will be held in queue and processed by the Court when operations resume.

The U.S. District Court remains open but under very severe restrictions. All jury trials are continued to April 16. No new trials are being set. Individual district judges retain discretion to conduct proceedings, by telephone or video conference where practicable, as necessary to preserve the rights of the parties. U.S. District Court electronic filings are ongoing.

Accordingly, we will continue to meet all filing deadlines in all matters in both the Superior Court and U.S. District Court. Our opponents are working, so are we. The battles continue, just from a distance for awhile.

Regardless of these changes and any more to come, our practice is open and running, and will remain so in this turbulent, unsettled time. We are here, we are available, we are working, we continue to fully represent our clients and their interests, and we are taking on new matters. If you have questions or concerns, don’t hesitate to call/email/text.

Be safe and stay healthy.

by James D. Crosby

Working 2.0

The Superior Court in San Diego has now closed for all but emergency matters through April 3. All civil proceedings are continued. As of now, the U.S. District Court here in San Diego is still operating with visitor limitations. But, I suspect that will change in short order. We will continue to monitor for changes in court directives. Otherwise, our cases remain on file and active. Our opponents are working, and the battles continue, just from a distance for awhile.

Regardless of these changes and any more to come, our practice is open and running. My paralegal, Veronica, is working remotely but is fully set-up to continue her important work on behalf of our clients and to meet their continuing needs. I will be working at the office primarily but remotely at times. We are fully equipped for remote work as necessary and will be fully available as usual.

We have invested in the infrastructure to effectively work with our clients from afar and have been doing so efficiently for quite some time. We will continue to do so in this turbulent, unsettled time. We are here, we are available, we are working, our cases proceed, and we are taking on new matters. If you have questions or concerns, don’t hesitate to call/email/text.

Be safe and stay healthy.

by James D. Crosby

Working.

The state court in San Diego has postponed jury trials through March. The federal court is operating normally, but some postponement of federal jury trials is presumably inevitable. Otherwise, the courts are open, and cases are proceeding. Likewise, my office is open. We are being careful, taking precautions, washing hands, wiping surfaces, shaking elbows, and working hard to maintain a safe work environment. And, as has been the case for many years now, we can and do largely work with our clients from afar and make all our court filings electronically. So, we are here, we continue to represent our clients, our cases are proceeding full speed, and we are taking on new matters. Be safe. Stay healthy.

by James D. Crosby

Losing your First Trial, Ouch! Good Bosses to the Rescue!

I was lucky to be able to try my first case very early in my career – in my 3rd year of practice, now almost 35 years ago! It was a business case, breach of contract, I think, a bench trial in North County Superior Court. Up against two older experienced attorneys.

I had worked hard, was ready to go, fully prepped, couldn’t lose! When I Ieft the office early that morning to go to court, two of my bosses, Dick Lynn and Jim Mehalick, both fine litigators, were in the small reception area of our small firm to see me off. Dick, with a big smile on his face, said – I will never forget this – “if you lose, don’t come back!” Jim smiled. Funny, I thought, kinda? They wished me good luck. Off I went.

I represented the plaintiff. Trial started, I gave opening, put up my witnesses, got my evidence in, closed my case, and LOST! Motions for judgment granted to both defendants.

Devastated. Obviously picked the wrong career. What will the client do – sue me? What will my bosses do? Maybe they weren’t kidding, will they let me back in? Jill and I have a baby on the way, just bought a house, how will I pay the bills? Back to marine biology? A young lawyer unrealistically projecting out years about how a career crunching loss would ruin his entire career and life! In retrospect, silly, but, hey, I LOST my first trial, a case I knew I couldn’t lose.

I went to work the next day to face my bosses. Needless to say, they let me back in the office! We went over the trial, the result, and our remedies. They were encouraging, supportive, thoughtful. They explained, as any trial lawyer would, you can’t win them all, you will lose cases you thought you would win and win some sure losers. Great support, perfect advice – just what I needed, righted my ship, reestablished my gravity. Taught me some lessons. Put me back to work. Ending of the story – we appealed, won, and settled the case.

Moral of the story – its good to have supportive bosses/colleagues/mentors and perseverance pays!