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James D. Crosby – Business Trials & Arbitrations – jcrosby@hcesq.com

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 ( http://www.hcesq.com) 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.

Thanks.

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

Email: jcrosby@hcesq.com

Web: http://www.hcesq.com

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 (http://www.hcesq.com) 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
Email: jcrosby@hcesq.com

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. http://wp.me/p4jZaw-L 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…

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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.

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, 2104), 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!

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