James D. Crosby – Business Trials & Arbitrations –

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

James D. Crosby, Attorney/Partner - Henderson, Caverly, Pum & Charney, LLP

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

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

When I lose an 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!

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.

Good Time To Go To Law School?

James D. Crosby, Attorney/Partner - Henderson, Caverly, Pum & Charney, LLP

Interesting New York Times DealBook article on the emerging buyer’s market for those entering law school. 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.



James D. Crosby Joins Henderson, Caverly, Pum & Charney, LLP

James D. Crosby, Attorney/Partner - Henderson, Caverly, Pum & Charney, LLP

I have joined Henderson, Caverly, Pum & Charney LLP ( as a partner. At Henderson Caverly, I will continue to represent individual and business clients, both plaintiffs and defendants, in general and complex business, commercial, intellectual property and real property litigation. I will also expand into probate and trust litigation.


James D. Crosby, Partner

Henderson, Caverly, Pum & Charney, LLP

12750 High Bluff Drive, Suite 300

San Diego, California 92130

O: (858) 755-3000

C: (858) 705-0083




Get every new post delivered to your Inbox.

Join 378 other followers