James D. Crosby – Business Trials & Arbitrations –

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



James D. Crosby Joining Henderson, Caverly, Pum & Charney.

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

Effective today, I am leaving Klinedinst PC to join 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, and intellectual property litigation.

I am quite excited about my move to Henderson Caverly. It is a firm of highly-skilled, well-respected attorneys working at the peak of their profession across a number of different practice areas. Its growing business and trust litigation department is top-notch. I am honored to be joining the firm, and I thank Nancy Henderson, Kristen Caverly and my other new partners for this opportunity. Henderson Caverly will provide much of the flexibility and autonomy I enjoyed in my solo practice, coupled with the support of fine attorneys and the resources and capacity to handle most any piece of litigation. It will be great, and I can’t wait to get started!

My new contact information is as follows:

James D. Crosby
Henderson, Caverly, Pum & Charney, LLP
12750 High Bluff Drive
Suite 300
San Diego, CA 92130
O: (858) 755-3000
C: (858) 705-0083

The Importance of Early and Effective Trademark Clearance Searches

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

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

A nice piece on trademarks and trademark clearance searches from my Klinedinst colleague, Sam Strohbehn. via @wordpressdotcom

Originally posted on Strohbehn IP:

Trademark protection in the United States operates on a first-come first-served basis.  All things being equal, if you are the first to use a given mark for a good or service in a geographic area, you’re going to have exclusive trademark rights to that mark for those goods and services in that area.

By the flip-side of the same coin however, if you’re looking at naming a new product, company, or service in a given market, you better make sure that there’s no one out there already using the same or similar name for the same or similar goods and services, aka a senior user.  If there is, and you proceed with using the name anyway, sooner or later it’s going to cost you.  That cost could come sooner, in the form of a threat of litigation from the senior user if you don’t stop using the mark.  Or it…

View original 654 more words


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