Insights

by James D. Crosby

This coming year, I will litigate cases like a professional athlete . . . . . .

This coming year, I will litigate cases like a professional athlete . . . . . .

When I win a MSJ at oral argument, I will stop, look to the heavens momentarily, then look down and kiss both of my biceps.

When I lose a MSJ at oral argument, I will hold my arms out, look at the Judge for a few seconds with the “are you kidding me” look, look away, slowly shake my head in disbelief, and flash the “you’re a f…ing idiot” look.

When I win a significant motion in limine, I will throw my arms down, flex my biceps, run around the counsel tables, looking sideways and yelling.

When I lose a significant motion in limine, I will look at the Judge and slap my forearm repeatedly with the disbelieving “where’s the foul” look.

When my trial objection is sustained, I will walk over and chest-bump opposing counsel, wag my finger at him, shake my head, and yell “don’t try me again”!

When my trial objection is overruled, I will look at my second chair co-counsel with the questioning “where were you” look.

When the jury returns a favorable verdict, I will jump up, stand, throw out my chest, throw my pen down to the floor, slide sideways two steps and spin around, drop to one knee, bow my head, cross my chest, look to the heavens, say a few words, stand up, butt foreheads with my second chair co-counsel, and slowly walk out.

When the jury returns an unfavorable verdict, I will look at them in disbelief, slowly shake my head, look dejectedly at the ground, slap the butt of my second chair co-counsel, and walk out with my head bowed.

When I see opposing counsel in the hall after the trial, I will walk up to him, grab him by the back of the head, dramatically touch foreheads with him for a few seconds, privately whisper a few words in his ear, then turn around and walk away, flush with victory.

When interviewed outside the courtroom by the Daily Transcript about the trial victory, I will do one of two things:

• I will say “I told that hack on the other side not to try me, not to take this case to trial against me, that there could be only one result when you go to trial against me, a loss”, and then apologize profusely whenever and wherever possible for my comments for the next few weeks; or,
• I will say that it was a team effort, that my trial team just kept fighting to the end, that I couldn’t have won without my client, second chair co-counsel, trial team, excellent staff and partners, and the love and support of my wife and children, that it was a close case that could have gone either way, and that my opposing counsel is a great lawyer – and then thank heaven for the victory.

When interviewed outside the courtroom by the Daily Transcript about the trial loss, I will do one of two things:

• I will say “the judge was awful, he took the case away from us with lousy rulings, he clearly had his mind made up about this case from the start, what a hack, we really need to take a good look at who we are putting on the bench in this state”, and then apologize profusely whenever and wherever possible for my comments for the next few weeks; or,
• I will say that I feel poorly for our client, that I are obviously unhappy about the loss but that my opponent tried a good case and I respect the jury and its decision, and that after getting a little rest I will be looking at the result to determine whether there are issues that an appellate court should review to insure that justice was done in this matter.

As I head back to my office after the trial victory, I will trot away in slow motion, waving one finger in the air for the victory.

As I head back to the office after the trial loss, I will walk quickly, briefcase in hand, red Beats headphones on, stern-faced, eyes forward, acknowledging no one.

Come to think of it, I don’t think I will litigate cases this year like a professional athlete!

by James D. Crosby

Scrap the “separate statement” requirement for summary judgment/adjudication motions in California!

This last week, my paralegal and I put together and filed an opposition to a motion for summary or, in the alternative, for summary adjudication. It was one of several summary judgment motions and oppositions I have done this year. Now, I think summary judgment/adjudication motions are extraordinarily powerful weapons in the trial attorney’s arsenal. Cases for which there is no defense can be adjudicated without the expense and delay of trial. Meritless or, more crassly put, BS cases can be dispensed with. Claims can be narrowed, defenses can be vetted, evidence can be challenged. Trials are interesting, challenging, and, in my view, the best part of this business. But, a client should not have to bear the risk, expense, and emotional misery of trial where there really is nothing that needs to be tried. Summary judgment/adjudication motions, when serving their proper function, separate the proverbial wheat from the chaff. They are essential to a proper-functioning civil justice system.

But, it is really time to dump the separate statement of undisputed/disputed facts requirement for such motions in California! Preparing and, more-significantly, responding to these statements is time-consuming, expensive to the client, and, in my view, a largely worthless undertaking.

I know these requirements were put in place to attempt to streamline the summary judgment/adjudication process. But, at least from this trial attorney’s perspective, they have done just the opposite. Regularly, even the simplest of summary judgment motions includes a separate statement with pages, and pages, and pages of redundant “undisputed facts”, which are then, in the case of the customary alternative summary adjudication motion, cut and paste verbatim into the statement for each successive cause of action at issue. And, per statute, all of this largely meaningless redundancy and paper must be responded to with more meaningless redundancy and paper.

This is all made more complicated and onerous by the inability of many attorneys to recognize the difference between undisputed facts and evidence. Undisputed facts material to resolution of a case or cause of action offered with supporting evidence, as contemplated by the statute, are often times replaced with pages and pages filled with formatted columns setting forth specific pieces of evidence as “undisputed facts”. The summary judgment motion I just opposed, a motion that involved fairly straight-forward substantive issues and limited evidence, came with a 69-page separate statement, including 234 separate “undisputed facts”, all of which had to be responded to, per statute. My responsive separate statement was 85 pages long! And, really, the matters at issue were well-briefed, with references to the relevant evidence, in the 20-page points and authorities on each side. The opposing briefs succinctly teed-up the relevant issues for consideration. The separate statements were a largely meaningless sideshow.

It can be, it is, a real mess. Does this really streamline the summary judgment/adjudication process? Should a lawyer or paralegal have to spend hours and hours cutting pasting verbatim text from one column to another across pages of redundant “undisputed facts” to complete a separate statement? Do the judges actually read and review all of the pages and pages of separate statement materials accompanying the large majority of summary judgment/adjudication motions? How could they, and still effectively handle their now-crowded motion and trial calendars? And, most importantly, should clients have to pay for all this time and effort? Or, should attorneys have to eat what would otherwise be good billable time because they cannot, in good conscience, bill a client for such busy work? The answers to these questions are self-evident.

I could, perhaps, envision a better separate statement procedure – maybe one centered around the actual elements of a cause of action or a defense, as opposed to one centered around claimed “undisputed facts”. If an element of a cause of action or a defense is claimed not to be subject to factual dispute, the separate statement could set forth that element and the corresponding evidence that establishes the absence or, conversely, the presence of a factual dispute. That might work better.

But, really, I think the whole separate statement thing should just be scrapped! Put it on the shelf with all the other good ideas that did not work out as contemplated. Get rid of it. Competent attorneys should be, and are, fully able to explain to the court in customary briefings with lodged relevant evidence why they are, or the other side is not, entitled to summary judgment or adjudication. That’s what lawyers do – brief issues and tee them up for resolution by the courts! It really is just that simple.

So, I say, repeal the separate statement requirement for summary judgment/adjudication motions in California! We have lived long enough with this onerous, expensive beast. I think you would hear an immediate, loud, collective sigh of relief from both Bar and Bench were that to happen.

by James D. Crosby

Good Time To Go To Law School?

Interesting New York Times DealBook article on the emerging buyer’s market for those entering law school. http://nyti.ms/1vmF7QC Prospective law students are in great bargaining positions for law school admissions and aid – especially top students. I also think the legal market for new business is continuing to pick up, after a number of tough recession years. The U.S. economy is ticking along with modest but sustained growth. The stock market is booming – more deals for attorneys to work on and to litigate over when they fall apart. And with fewer students coming out of law school over next few years – some incoming classes are as low as they have been since the 70’s, demand for new attorneys should heat up as well. Good time to go to law school?? Looks like it.

by James D. Crosby

The Importance of Early and Effective Trademark Clearance Searches

A nice piece on trademarks and trademark clearance searches from my Klinedinst colleague, Sam Strohbehn. http://wp.me/p4jZaw-L via @wordpressdotcom

by James D. Crosby

“…an attorney does not provide a service to the client by stealing his or her money.” Lee v. Hanley – The 4th District Weighs in on CCP 340.6.

In an opinion that will put a broad grin on the faces of plaintiff malpractice attorneys across the state, the Fourth District Court of Appeal held this week in Lee v. Hanley (G048501) that the Code of Civil Procedure Section 340.6 one year statute of limitations for attorney malpractice may not apply in cases involving a client claim for return of attorneys fees retained by the attorney. The court distinguished leading cases applying section 340.6 and analyzed the legislative history of the statute. But, the basic premise of the opinion is stated by the court as follows:

“Here, we find the words of the statute to be plain and unambiguous. They provide the applicable statute of limitations for an action based on “a wrongful act or omission, other than for actual fraud, arising in the performance of professional services . . . .” (§ 340.6.) So, if the wrongful act or omission at issue arises “in the performance of professional services,” the statute applies. If the wrongful act or omission at issue does not arise “in the performance of professional services,” the statute is inapplicable. As we have already stated, an attorney does not provide a service to the client by stealing his or her money.”

While I share in the Court’s obvious revulsion towards an attorney stealing a client’s money, I think the opinion, especially in its repeated reference to the tort of conversion as one area where the one-year statute may not apply, is problematic. And it will certainly be used by plaintiff’s attorneys to attempt to break open the one year statute in any malpractice case involving a claim for the return of fees, including those where the attorney hasn’t stolen anything or done anything wrong.

This was a demurrer case. In its analysis of the complaint at issue, the Court stated the following:

The second amended complaint in the matter before us alleged that, after Attorney Hanley’s services with respect to the settled litigation had been fully completed,he knowingly refused to release money belonging to Lee, which he himself had characterized as her “credit balance.” When we liberally construe the second amended complaint we see that, despite Lee’s form of pleading, she has made factual allegation adequate to state a cause of action for conversion, for example. (Welcon Electronics, Inc. v. Mora (2014) 223 Cal. App. 4th 202, 208-209, 215-216 [wrongful exercise of dominion over identifiable sum of money belonging to another].) 

To me, this is a troubling passage and subject to much potential abuse by smart attorneys with otherwise stale claims. Seems like the case could be used to extend the limitation period beyond one year in any matter involving fees – like when the client wants a refund of fees already earned. Couldn’t the client just claim the attorney is not entitled to the fees, sue for conversion and then, based on Lee v. Hanley, push the applicable statute to 2 or 3 years?

But, conversion is an odd bird – it can be an intentional tort but it can also be just a general intent exercise of dominion or control over another’s property. “Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant’s good faith, lack of knowledge, and motive are ordinarily immaterial.” Los Angeles Federal Credit Union v. Madatyn (2012) 209 Cal.App.4th 1383, 1387. “Conversion must be knowingly or intentionally done, but a wrongful intent is not necessary. Because the act must be knowingly done, ‘neither negligence, active or passive, nor a breach of contract, even though it result in injury to, or loss of, specific property, constitutes a conversion.’ It follows therefore that mistake, good faith, and due care are ordinarily immaterial, and cannot be set up as defenses in an action for conversion.” Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119, 1124. Under Lee v. Hanley, a careful drafter with a stale claim but a story involving client money, will sue, claim “conversion” and maybe get past demurrer on an otherwise time-barred claim – but, on a claim based on a strict liability tort where the attorney’s good-faith, mistake and due care are meaningless. Conversion is not always theft and not always “wrongful” in the traditional sense.

I  understand the court’s concern about disreputable lawyers absconding with client monies. I share it, as most all lawyers do. And the simple phrase “…an attorney does not provide a service to the client by stealing his or her money” makes sense. But, this is a case where the law of unintended consequences may trap a lot of fine attorneys, who have good faith disputes with clients over earned fees, into defending what would otherwise be stale claims and losing the statutorily-mandated protection accorded by Section 340.6.

by James D. Crosby

Your Memory Rewrites the Past! Are Eye-Witness Testimony and Witness Recollections of Prior Events Ever Credible?

Trial lawyers spend much of their professional existence trying to prove that a witness’ or party’s testimony is not truthful – that the party or witness is lying. We seek out and use documents, photos and ESI that are contrary to the witness’s current testimony to call the witness’ credibility into question. We depose witnesses to get their story “under oath” in case they change their testimony at trial. When a party testifies differently from his deposition testimony or other previous statement on a material point, we go on the attack! “Do you recall giving deposition testimony in this case? And, you gave that testimony under oath, right? You swore to tell the truth at that deposition just like you did in front of this jury today, right?” Then, we point out the inconsistencies between the deposition testimony and the trial testimony, and stride triumphantly back to our counsel table having decimated the opponent. Come on, admit it, don’t we all just love catching the opposing party in a bald-faced lie in front of a jury entranced by the real-life conflict playing out in front of them. “Ladies and gentlemen of the jury, he’s a liar – he says one thing one time and another thing another time – and all under oath – don’t believe him!”

But, what if the witness’ current testimony, while materially different from her previous testimony, is no less “truthful” than the previous impeaching testimony was when given? What if a witness testifying differently at different times about a past event was still telling the “truth” each time? Wouldn’t that undercut the whole premise of what trial attorneys spend much of their time doing – using the contrast between a witness’s testimony at trial and her testimony or statements at prior times to suggest the witness is a liar? It appears that may just be the case. In fact, it may be worse than you think. According to neuroscientists at Northwestern University Feinberg School of Medicine in a study recently published in the Journal of Neurosceince (Hippocampal Binding of Novel Information with Dominant Memory Traces Can Support Both Memory Stability and Change by Donna J. Bridge and Joel L. Voss, Journal of Neuroscience, February 5, 2014), your memory regularly rewrites the past with current information, updating your recollections with new experiences. When a memory is recalled, the brain updates that memory in light of current salient facts – “… all memory is adaptively tuned to information that is currently salient.”

In a layman’s discussion of the study (“How Your Memory Rewrites Your Past.” by Marla Paul, Northwestern University News, February 4, 2014), Donna Jo Bridge, one of its co-authors, states that “Our memory is not like a video camera. Your memory reframes and edits events to create a story to fit your current world. Its built to be current.” The co-author notes the study’s implications for eyewitness court testimony – “our memory is built to change, not regurgitate facts, so we are not very reliable witnesses”. The other study co-author, Joel Voss, says the notion of perfect memory is a myth. “Everyone likes to think of memory as this thing that lets us vividly remember our childhoods or what we did last week. But, memory is designed to help us make good decisions in the moment and, therefore, memory has to stay up-to-date. The information that is relevant right now can overwrite what was there to begin with.”

If this study, and these findings, are correct and generally applicable to everybody, it is profoundly disturbing. If this is correct, can a witness or party recollection of a past event or discussion ever be deemed reliable and credible, or, more pointedly, can we even lay a foundation of personal knowledge for a witness’ testimony about past events if that witness’ personal knowledge and memory of those events has been “updated” multiple times since the event she is recalling? Look at it this way, if an agreement was altered to reflect current facts and circumstances every time somebody read it, would such an agreement ever be admitted into evidence as reflective of the parties’ actual agreement at the time it was signed? Surely not. But it seems that may be exactly how the brain alters memories!

If this is true, are not contemporaneous-to-the-event-in-question agreements and writings perhaps the only credible evidence of the event in question; that is, unless the author’s memory of the event wasn’t recalled and “updated” between the event and the writing?

Is a party’s memory of a critical event “updated” to reflect current circumstances every time that party recalls and discusses those events with his attorney?

If a witness recalls an event at trial differently than she did in deposition a year earlier, is she really lying and simply giving truthful testimony both times based her then-current and -updated memory of those events?

If this is true, shouldn’t we have jury instructions that advise a jury to view testimony based upon memories of past events with much skepticism in that such memories are subject to change and not likely accurate evidence of the events recalled?

If you have a case which pits testimony about past events against contemporaneous documents memorializing those events, shouldn’t the documents always win. And, shouldn’t you be able to call one of these neuroscientists to give an expert opinion that, based upon their study, witness recollection of past events should never be believed over contemporaneous documents memorializing those events because the memories have likely been “rewritten” any number of times since the events and the documents presumably have not?

Given these findings, shouldn’t all integration clauses in all contracts be fully and strictly enforced, because current witness testimony about prior contractual intent is always suspect and likely incorrect?

I could go on and on. If these findings are correct and generally applicable to everybody, the permutations are endless and disturbing to the point that perhaps witnesses should never be allowed to testify based upon memories of past events because those memories could never actually reflect the event. Wow! Sure shakes things up a bit, doesn’t it?

This is all pretty troublesome and, frankly, warrants a great deal of serious thought about the quality and reliability of the evidence upon which triers of fact regularly decide cases – cases which bear profound significance not only to the litigants involved, but to us all.

All I can say now is – take a lot of pictures!

by James D. Crosby

Can a Lawyer Review a Juror’s Facebook, Linkedin or Twitter Page During Trial? ABA says Yes!

On April 24, 2014, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 – Lawyer Reviewing Juror’s Internet Presence. In the opinion, the Committee considered the following question:

“Whether a lawyer who represents a client in a matter that will be tried to a jury may review the jurors’ or potential jurors’ presence on the Internet leading up to and during trial, and , if so, what ethical obligations the lawyer might have regarding information discovered during the review.”

The Committee formally opined that:

Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but may not communicate directly or through another with a juror or potential juror.  

A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).

In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.

More simply stated, using Facebook as an example, a lawyer can look at the juror’s Facebook page before and during trial, but cannot seek to “friend” the juror. The former would not be an improper communication with a juror, the latter would be. Further, if the juror’s Facebook page evidences juror or potential juror misconduct that is criminal or fraudulent, the lawyer must disclose same to the court.

In an interesting opinion, the Committee noted the “strong public interest in identifying jurors who might be tainted by improper bias or prejudice” and the equally strong public policy “in preventing jurors from being approached ex parte by the parties to the case”. The Committee stated that in today’s “Internet-saturated” world, the line between properly investigating jurors and improperly communicating with them is “increasingly blurred.” With the opinion, the Committee sought to clarify where that line is.

In approving the “passive review” of a juror’s social media presence or websites, the Committee stated that “the mere act of observing that which is open to the public” is not an improper communication. By analogy, the Committee noted that “a lawyer … would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.”

But, the Committee opined that sending an access request ( e.g., a Facebook “friend” request) to a juror crosses the line  – it is an improper communication because it asks the juror for information that the juror has not made public.

On the issue of the obligation of a lawyer who sees evidence of juror misconduct on a juror’s social media site, the Committee drew a bright line where the juror’s misconduct is fraudulent or criminal – the lawyer must act and report the misconduct to the court. But, where the juror conduct evidenced on the social media site or website violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, the lawyer’s obligation is less clear and not addressed by ABA Rule. The court noted:

“While any Internet postings about the case by a juror during trial may violate court instructions, the obligation of a lawyer to take action will depend on the lawyer’s assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes. For example, innocuous postings about jury service, such as the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt. A lawyer’s affirmative duty to act is triggered only when the juror’s known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.”

So, according to the ABA, trial lawyers can review the Facebook, Linkedin, Twitter, Instagram, etc., pages of jurors and potential jurors in advance of, and during, trial without violating ABA ethical rules.

And well they should! Social media sites can provide a wealth of information that can be very useful in voir dire, jury selection, opening statement and closing argument. Social media postings can provide insights into a juror’s politics, prejudices and predilections, insights which can be extraordinarily valuable at trial.

In fact, in the future and perhaps even now, not conducting Internet research into jurors could be risky. In an opinion footnote, the Committee noted as follows: “While this Committee does not take a position on whether the standard of care for competent lawyer performance requires using Internet research to locate information about jurors that is relevant to the jury selection process, we are also mindful of the recent addition of Comment [8] to Model Rule 1.1. This comment explains that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

by James D. Crosby

Miller Act, 90-Day Notice, Open-Book Accounts – Ramona Equipment Rental v. Candelaria Casualty

Won a victory before the Ninth Circuit today in a significant published decision. The case is Ramona Equipment Rental v. Carolina Casualty Insurance (No. 12-55156). I represented Ramona Equipment. The appeal was from a case I tried before Judge Marilyn Huff in District Court here in San Diego the summer of 2011. The issue before the Ninth Circuit concerned application of the Miller Act (the payment bond statute for federal works of improvement) ninety-day notice provision to a supplier providing goods/equipment to the federal work of improvement on an open-book account. The ninety-day notice provision (40 U.S.C. section 1331(b)(2)) provides, in pertinent, as follows:

“[a] person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made . . . .”

My client had supplied rental equipment to a subcontractor on a federal construction project on an open book account. The rentals were provided to the worksite over a six-month period of time. The subcontractor did not pay in full. Client gave the required ninety-day notice to the general contractor and filed suit under the Miller Act. The general contractor and the bond surety argued at trial that the ninety-day notice was untimely as to all rental equipment furnished to the project more than ninety days before service of the notice. The District Court disagreed and, relying heavily on Noland Co. v. Allied Contractors, Inc. 273 F.2d 917, 920 (4th Cir. 1959) in the absence of Ninth Circuit authority, concluded that, in light of the open book account, the ninety-day notice covered all rental equipment furnished to the Project.

The Ninth Circuit Court of Appeal, addressing the issue for the first time in today’s published opinion, agreed and affirmed the District Court judgment. Citing to Noland and other decisions from the First, Fourth and Fifth Circuits, the Court held that:

“…if all the goods in a series of deliveries by a supplier on an open book account are used on the same government project, the ninety-day notice is timely as to all of the deliveries if it is given within ninety days from the last delivery.”

The dissenting opinion noted that “the ninety-day notice requirement serves to protect the general contractor and its surety.” The majority opinion countered that:

“.. the weight of circuit authority recognizes a broader purpose in the Miller Act. In the end, the goal of the notice provision must take a back seat to the purpose of the overall statute, which is to provide recovery for suppliers who have provided materials but not received compensation.”

This is a nice win for a good client after a long battle. The case is also significant in that it serves to clarify application of the Miller Act ninety-day notice provision to suppliers of materials and equipment to federal jobs on open-book accounts in a fashion consistent with the overall remedial goals of the Act.

It is a nice victory. Like I always say – Winning is Always Better than Losing!

by James D. Crosby

Trial – Effective Way to Resolve Difficult Disputes?

When I showed this new blog site to an attorney friend of mine, she commented on the trial practice emphasis – “Nobody goes to trial anymore”.  Clearly, that is not accurate – the state and federal courts are full of civil cases being tried. Nevertheless, this is a common refrain heard from lawyers and business alike. Nobody wants to go to trial. Trials are too expensive. Too risky. It takes too long to get to court. Arbitration or mediation are the only way to go.

That prompts the following question – are civil trials still an effective way to resolve difficult disputes? I say, Yes!

Let’s consider some of the common refrains about trials as a means to resolve disputes.

Too risky – My view on this is simple. I will generally trust a jury or a judge to get something right as much or more than I trust a commercial arbitrator to make the correct call. I think the notion that one will get a wiser, fairer result from an arbitrator than one will get from a judge or jury is just not tenable. Further, the decisions of judges and juries are always subject to review on appeal when they get it wrong. Also, arbitrators vary greatly in their acumen and ability to analyze and decide cases. And, finally, there is always the “split the baby” issue. Often times, arbitrators, who are being paid by both sides and who often also work as mediators, will seek the path of least resistance, not make the tough call, and render a “middle ground” decision to resolve a dispute. Maybe that works in particular cases. But, in most cases, a tough call has to be made between right and wrong, tenable and untenable, strong claim and BS claim. I trust juries and judges to make those tough calls as much, or more, than I do commercial arbitrators.

Too expensive –  It cannot be denied. Preparing and taking a case to trial is costly. But, is it really more costly than commercial arbitration and other forms of alternative dispute? Commercial arbitration is not cheap and, in my view, rarely a less-expensive alternative to trial. Is a two-week commercial arbitration with arbitrators charging $500-$600/hour any less expensive than a two week-jury trial? Clearly not.

What about mediation? That’s surely cheaper than trial. In the abstract, I am a strong believer in mediation and, especially, early mediation. It is very cost-effective because it presents a true alternative to trial or arbitration and their associated costs. I regularly advise my clients to consider it. Stop paying lawyers – fix the problem – get back to running your business. But, it is my experience that early mediation efforts are often rejected by the client and, when pursued, rarely work. Usually, by the time the client comes to me, other ways of fixing the problem have been tried and failed, or the client legitimately wants to right a wrong, beat back an unjustified claim, or remedy real damage. An early mediation will likely not be fruitful. Further, in my view, risk – more precisely, the real risk of going to trial and losing – is usually the principal motivator of fair settlements. That risk is just not present at the commencement of most cases. It would be nice if all parties could sit down in a room with a skilled mediator before pursuing litigation and, over coffee, calmly, rationally, with the exercise of business judgement and foresight, resolve their disputes. But, let’s be frank, that is not the real world. And, further, many disputes simply should not be so resolved. There are many battles that simply need to be won and many opponents that simply need to be beaten. So, my view, mediation is good, and can be very cost-effective; but, only as part of an overall trial strategy, only when and where it makes sense, and only if it works. A day sitting in a mediation that does not resolve a case because your opponent perceives no risk and has no incentive to settle is not cost-effective – it is a waste of a day.

Takes too long to get to trial – This can be true, especially given current limited budgets and staffing in California courts. And, frankly, this is an area where arbitration is a better alternative. If you want something resolved very quickly, arbitration likely works best. But, you must accept the risks and costs of private arbitration noted above. Further, cases can be worked up by experienced trial counsel in a manner that lessens the impact of current court delays. At least here in San Diego, the courts are not suffering from a lack of trial capacity. There is ample calendar room to try cases. But, the courts here suffer from a lack of staffing and capacity to promptly handle motions. Demurrers, discovery motions and summary judgment motions will dramatically delay a trial date. Clean cases with minimal law and motion practice will get to trial fairly promptly. Experienced trial counsel can dramatically lessen the effect of current court delays by closely scrutinizing the need for extensive motion practice in any given case (Is that demurrer really necessary? Will it resolve the case? Can I really prevail on the summary judgment motion?) Further, if necessary discovery is propounded very early in the case, motions to compel, if required, can be scheduled and heard with timing that may not delay a trial. Have a discovery plan and necessary discovery ready to go when you file. Serve the discovery as early as possible. Take necessary depositions promptly. Get discovery disputes teed up for resolution early in the case so they don’t serve to kick your trial date. And, don’t jack the other side around on discovery. Their discovery motions will just serve to delay your trial date. If you intend to pursue summary judgment, get going on the case and have the motion heard as early as possible. Advise opposing counsel early that you intend to pursue summary judgment, suggest that she get her discovery done as well, and that you will oppose any continuance request if she doesn’t. And, otherwise avoid motion practice if at all possible. The problem with the courts is not the ability to handle trials but, rather, the capacity to promptly handle motions. Think strategically, get going on discovery early, avoid motions, the case will get to trial in a reasonable time frame.

Cleary, this issue is broader, more nuanced, and more complicated than presented above. And, the strategy in any given case must always be driven by the nature of the dispute and the needs of the client. Also, my view is prejudiced by the faith I have in courts and, in particular, juries to generally make the right call. But, in my view, trials, and thoughtful, strategic preparation for trials, remain a practical, effective, and the best, way to resolve difficult disputes. If a dispute can be resolved, effective preparation for trial and the risk of trial will result in the best settlement. If a dispute cannot be resolved and a resolution must be imposed upon the parties by somebody else, a civil courtroom, in front of a jury or judge subject to appellate review, is the best place to go for that resolution.

by James D. Crosby

Litigator or Trial Attorney?

Without ascribing labels to my work, this is what I do for a living. I represent people and businesses involved in legal disputes in court, and in trial. While I am not, by any means, always in court, the focus of my work every day is preparing for trials, and representing my clients in pre-trial court proceedings and in trial. The goal of my work is winning the dispute for my client either by pre-trial motion or at trial. While cases often get resolved through various means before trial, the goal of my work is to get ready for trial, go to trial, and prevail for my client.

So, what am I, a Litigator or a Trial Attorney?

What do I call myself? How do I describe myself to clients? How do I view myself? How do I want others to view me?

Litigator or Trial Attorney?

I prefer Trial Attorney. And here is why.

To me, litigator is a process-oriented word. To be a litigator is to be involved in the process of litigating. A litigator’s work is to litigate – to conduct the day-to-day process of a lawsuit. The work, the process of litigating, is the goal.

In contrast and, again, to me, trial attorney is a results-oriented phrase. Trial is the end goal of any litigation, the time and place where the result of the case is determined by judge or jury, and imposed on the parties. To be a trial attorney is to be trying cases and getting trial results. A trial attorney’s work is to get ready for trials and try cases to victory. The trial result, the winning judgment, is the goal.

Obviously, on any given day, the actual work of a litigator and a trial attorney, as I view those terms, is not really any different. Pleadings, motions, discovery, depositions, trial prep, and ultimately, trial (if the case does not settle out). But, I think there is a difference in mind-set that plays into how the case is worked up and, ultimately, the result obtained for the client. The trial attorney mind-set is to, from day one of any case, start getting ready for trial. The focus is on the trial and winning for the client at trial. Everything is directed at that ultimate goal. Conversely, a litigator mind-set is to work up the case for possible resolution by a number of different means. Resolution of the case is the goal, and not necessarily through a win at trial.

For me, it’s about striving to work my cases towards the winning result at trial as opposed to simply moving the case along – processing the case – to a resolution. It’s Trial Attorney, not Litigator.

Don’t get me wrong, like litigators, trial attorneys seek to conclude cases before trial by dispositive motion or through settlement on favorable terms. No competent attorney goes to trial where there are other ways to get the good result for the client. But, I believe a trial attorney mindset will always generate better pre-trial resolutions for the client as well. If you are, from day one of the case, working up strong trial arguments, those arguments will play themselves out in strong dispositive motions. On the settlement side, if you are viewed as a true trial attorney itching to get into the courtroom, the risk of trial for your opponent increases and the settlement value of the case to your client increases. I have been in settlement discussions with attorneys that I just know will not go to trial. Their threat of going to trial is a bluff and I know it. Invariably, I can put more pressure on those attorneys and they in turn put more pressure on their clients to settle. The result – a better settlement for my client.  Tough, tested, trial-ready – the trial attorney mind-set – will always yield a better pre-trial result for your client.

Most importantly, I prefer trial attorney because it reminds me everyday that it is not the process, but, rather, the result that matters. One can easily get trapped in the to-and-fro, and the competition, of motion and discovery battles, and snarky, snide letter-writing campaigns. But, do they serve the overall goal of getting the win at trial for the client? Does sending out reams of written discovery that you will never move to compel responses to get you ready for trial, or get your client the best result? Does asking a deponent where he went to high school or what his first job was further your client’s position on the merits and ultimately at trial? Maybe yes, maybe no. But, the desired result – a win for the client at trial – should drive that determination and not the customary, routine processes of motions, discovery and depositions that we all fall into.

A trial attorney mind-set has me focused always on the overall goal of a win at trial for the client. A litigator mindset has me mired in the day-to-day process, and losing sight of getting the win my client wants and is paying for.

So, I am a trial attorney, and not a litigator.

Works for me!