Klinedinst PC has launched a brand new service aimed at supporting small firms and solo practitioners tackling significant cases throughout California.

Klinedinst’s Co-Counsel Services are designed to provide trial preparation, research resources, and case advisory services to small firms handling large, complex cases. Solo practitioners and small firms no longer have to refer out this work; instead, Klinedinst attorneys can be brought on board to instantly enhance trial preparation, technical capabilities and staff load to effectively litigate and successfully bring a case to trial.

“This is a revolutionary new concept to the world of small practitioners,” noted James D. Crosby, Shareholder and Chair of the Co-Counsel Services. “When you’re a small firm handling a complex matter, there really are two options: either work the case yourself at the expense of family and other clients, or refer it to a larger firm. Klinedinst’s new Co-Counsel Services provide a third option: keep the client, and bring on a trusted partner to help work the case with you.”

Through Co-Counsel Services, attorneys can choose how to structure their relationship with Klinedinst, The firm’s statewide network of attorneys and staff can assist with motions, discovery, depositions, document management, trial preparation, and if necessary, in-trial assistance in the second-chair role. If an attorney wishes, Klinedinst can serve as first-chair, equally sharing case work and trial duties.

Klinedinst’s Co-Counsel Services are the first of their kind in the nation. “The Co-Counsel Service is a natural progression for us,” stated John D. Klinedinst, Founder and CEO of Klinedinst PC. “We are essentially taking our recognized capabilities in handling major complex litigation, and combining it with our experience working with small firms in the Professional Liability arena.”

“Our focus in a co-counsel relationship is to act as a support system to the small-sized firms in successfully carrying out all aspects of the case,” added Crosby, a business litigator and former solo practitioner who joined Klinedinst in January, 2012. Crosby’s experience in handling complex, multi-district cases for clients served as the inspiration for the Co-Counsel Services. “When you’re a small, independent attorney, you want to do what’s right for your client, but you can only go so far before you hit a ‘capacity ceiling.’ Being able to co-counsel with a trusted legal partner allows attorneys to strengthen their relationships with important clients without sacrificing their practice or personal life.”

The new practice group is available immediately, and will be offered in all four Klinedinst PC office locations in California.

I have decided to run for the San Diego County Bar Association Board of Directors this year. I have been thinking about it and making inquires for month or so, and have decided to give it a shot. The election will be in November, but I am starting my campaign efforts right away. As many of you may know, I have been involved in Bar and Bar-related activities throughout my career as an attorney here in San Diego, including serving on the Board and as the President of the Bar Association of Northern San Diego County, serving as a Trustee and as President of the San Diego County Law Library Board of Trustees, and serving on the Board of the San Diego Volunteer Lawyer Program. I presently serve as a trustee on the Law Library Justice Foundation, as Vice Chair (and Chair in 2013) of the SDCBA Civil Litigation Section, and as a member the SDCBA Communications Committee. I would now like to put my experiences and background to work on the SDCBA Board. It is a logical progression for me. And now that I am back working in downtown San Diego, the logistics of Board service would be much easier. I greatly enjoy such activities and would be an active member of the Board. I also believe it would be an interesting time of change to serve on the Bar Board. Long-running institutions, like the SDCBA, are finding their way and evolving in our new interconnected, horizontal, always-on, world. They need to continually re-assess their relevance in today’s media-based environment, re-structure the way they provide services and benefits, and re-tool the ways in which they communicate with constituents and the public. Recent changes in the SDCBA website and the ongoing shift to making it the hub for the provision of bar information and services, and for interaction with Bar members, show the SDCBA is evolving to meet the current needs of its members and the public, and not just resting on its impressive history. I would like to help the SDCBA continue that process. I would appreciate your support and endorsement in my run for this important SDCBA Board of Directors position. I am excited about the run and hope it will be successful. Thank you. Jim

After I started at Klinedinst, I started being called, along with other firm trial attorneys, a “trial horse”. I took it as an acknowledgment of my trial experience or, perhaps, a sign of respect for my many years in the trial trenches and active trial practice. A Google search dug up various references to well-seasoned, pugnacious, successful litigators being referred to as “trial horses”. I really liked the term, still do. Jim Crosby – Trial Horse! Cool! But, my Google search, and a simple dictionary search, also turned up a glaring problem with the term. Now, I am not so sure being a “trial horse” is such a good thing!

In the horse-racing world, a trial horse is a horse used for practice by thoroughbreds and champions. In the boxing world, a trial horse is a fighter who can take a punch, but never gets a shot at meaningful fights and gets knocked around by champions for practice. (Think DeNiro towards the end of “Raging Bull”). Online dictionaries define “Trial Horse” as one who is “set up as an opponent for a champion in trial competitions or workouts” or “an opponent who performs against a superior foe in a workout or exhibition”.

See what I mean! Taken literally, being a “Trial Horse” would mean superior attorneys regularly use me as a practice punching bag to beat on in small meaningless trials.

Think I will stick with “seasoned” trial attorney!

Can a trial court consider the financial impact of the attorney fees award in determining reasonable attorney fees under contract per Civil Code Section 1717? California’s First District Court of Appeals says it cannot. Adassa Walker v. Ticor Title Company of California – Court of Appeal Case No: A126710. In Walker, the trial court had considered the financial impact of the award on the plaintiffs in determining the amount of reasonable fees awarded to the prevailing defendants under contract per Civil Code Section 1717. The Court of Appeals held that the trial court had abused its discretion in doing so. The Walker court acknowledged that an award of contractual attorneys fees per Section 1717 may be subject to equitable considerations, but held that “a losing party’s financial condition should not be considered in setting the amount of such an award”. The court noted that unlike statutory fee awards, contractual fees are “voluntarily incurred”.

“The possibility of an award of contractual attorney fees exists because the parties chose to enter into an agreement containing an appropriate provision. The award is a business risk assigned as a matter of mutual agreement by the parties. As a result, contractual attorney fees cannot fairly be characterized as a punishment. Nor can the possibility of an award of contractual attorney fees constitute an improper denial of access to the courts, since the risk of such an award has been undertaken in return for the benefits of the contract”.

The court noted that under Section 1717 courts are instructed to consider such factors as the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. But, the losing party’s financial condition may not properly be considered and, presumably, evidence of such financial condition would be irrelevant and inadmissible as to the issue of contractual “prevailing party” attorney fees.

Lesson to be learned – if you agree to pay attorneys fees if you lose, crying poor will not work when you do!

Real interesting new 9th Cir. opinion. U.S. v. Nosal. Does an employee who violates an employer policy prohibiting the use of work computers for non-business purposes commit a federal crime under the Computer Fraud and Abuse Act? 9th says No. Nosal – http://1.usa.gov/Hq5Ks9

Real interesting opinion. Turns on statutory construction but makes broader point on criminalizing what might otherwise been considered day-to-day activities by millions of people. Look at this passage:

Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by gchatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.

The effect this broad construction of the CFAA has on workplace conduct pales by comparison with its effect on everyone else who uses a computer, smart-phone, iPad, Kindle, Nook, X-box, Blu-Ray player or any other Internet-enabled device. The Internet is a means for communicating via computers: Whenever we access a web page, commence a download, post a message on somebody’s Facebook wall, shop on Amazon, bid on eBay, publish a blog, rate a movie on IMDb, read www.NYT.com, watch YouTube and do the thousands of other things we routinely do online, we are using one computer to send commands to other computers at remote locations. Our access to those remote computers is governed by a series of private agreements and policies that most people are only dimly aware of and virtually no one reads or understands.

Take a look, interesting stuff – also an issue that will be before Supreme Court. Other circuits have come down differently on application of the Computer Fraud and Abuse Act.

Effective January 2, 2012, I will be moving my business litigation practice into Klinedinst PC (www.klinedinstlaw.com), a long-established and very well-respected San Diego business law firm. This career move has been the subject of several weeks of discussions and negotiations with the Klinedinst firm management, and I am quite excited about it. The firm has almost 60 attorneys across four Southern California offices, about 40 of whom are at the firm’s main office located blocks from the state and federal courts in downtown San Diego. Some of the best attorneys in San Diego and Southern California are in this firm. I will become a shareholder at the firm and maintain complete control over my existing cases.

As you might expect, the reasons for this move are many. But, principal among them is my desire to better serve my clients. The solo practice model has many positive attributes, including personal autonomy and a good degree of flexibility in the way I work and the manner in which I deliver legal services. It has served me and my clients quite well for many years. But, in recent years, the complexity and, more significantly, the pace of the types of financial and business cases I handle has increased significantly. And, while my work product has never suffered and my court-imposed deadlines are always met, at times my solo practice has strained to efficiently handle case flow and effectively meet the needs of my clients. The move to Klinedinst will immediately remedy this situation. I will have significant staffing and office capacity behind me, as well as paralegals and other fine attorneys to assist as necessary with cases. When I am in trial or at extended depositions, progress in other cases will not stop. Other attorneys will be available to work on the cases, as necessary. I will also have the acumen and experience of some of the best business attorneys and litigators around to provide input on case substance and strategy. And, personally, I will have a lot of very nice, interesting people to work with! It should be a win-win situation for all involved, including my clients.

Effective January 2, 2012, my new contact information will be as follows:

James D. Crosby
Shareholder
Klinedinst PC
501 W. Broadway, Suite 600
San Diego, CA 92101
Phone: (619) 239-8131
Fax: (619) 238-8707
Cell: (858) 705-0083
Email: jcrosby@klinedinstlaw.com
Website: www.klinedinstlaw.com
Twitter: @crosbyattorney
Blog: www.crosbyattorneyblog.com

Thanks and Happy New Year!

Jim Crosby

Originally posted December 1, 2011

The LA Times and New York Times report a possible ballot initiative this fall in California to, among other things, impose a sales tax on attorney services. It will be fascinating to observe how California law firms react if this tax is approved and imposed. Will they simply levy the tax without comment? Will they increase their fees to address the added firm administrative costs associated with the new tax? Or, will they absorb the tax to keep clients happy in these lean times? Perhaps they will lower rates to account for the additional tax to keep clients happy? Much depends upon the specifics and size of the proposed tax, and a particular firm’s client base.

Regardless, it seems a good marketing opportunity for law firms seeking a competitive advantage. The pitch: “We know these are tough times. The imposition of a sales tax on the valuable and necessary services we render for our clients will only make matters worse for our business clients struggling in a tough economy or facing the costs of litigation. So, effective upon imposition of the new tax, we will cut our rates in an amount commensurate with the sales tax. Thank you.”

The calculation is simple – accept a small percentage reduction in revenues in hopes of keeping existing clients happy, generating new clients and increasing market share. But, would this really work? And would it be fair? Should the attorneys and accountants bear the true burden of the proposed tax?

If this new sales tax is imposed, we will see how California law firms react. If it happens, it will certainly make for lively discussion in partner meetings across the state.

Originally posted November 22, 2011

Civility, across the broad arch of a career, is a successful and lucrative business model. I believe it will enhance your professional career, better serve your clients, make you more profitable, and keep you sane.

Civility is typically discussed in lofty abstract terms at collegial meetings of judges and attorneys. You’d think it was written in stone or tablet. Yet civility is much more difficult to apply in the aggressive, day-to-day jockeying of a litigation practice. We’ve all had that Friday afternoon call with an aggressive, uncivil, opponent whose been jacking you around in discovery for six months. Or that call from a lawyer who has denied you multiple extensions and who now wants one himself because his kid is sick. How about that senior partner who wants an associate to draft and serve 300 special interrogatories, simply to make the opponent “spend some money?”

Being civil is all the more difficult in lean economic times. After all, our clients are our customers. And we want to keep our customers happy. In addition to representing clients, we have to pay the rent, meet payroll, and keep the doors open. When a good-paying client wants us to stop being nice, start being a “bulldog,” and start making the other side spend money, it’s tempting to play into that client’s worst instincts. Why not keep the money flowing? The reality is that attorneys, like anybody, will do what works – especially when it’s lucrative. I hate to be cynical, but if being an uncivil jerk works and makes them money, that is what a great many attorneys will do. But, I think the contrary is true. Civility, though hard to apply at times, is good for business.

One can always point to a particular case or client where a more uncompromising and uncivil approach worked. After all, pre-trial litigation is really all about the imposition of risk and cost on the other side. And, like most litigators, this author cannot claim that he has not yielded to base competitive urges, including anger, at times. It would be impossible not to. Yet, I have litigated many more cases wherein civility significantly assisted in securing a good result for the client. And the best and most successful attorneys I know after almost 30 years in the trenches are those that, calmly, professionally and with a civil approach and a good-natured slap on the back, pick your case apart and destroy your position. I believe adopting and working hard to apply a more civil, professional approach in daily litigation practice is the better and, ultimately, the more lucrative approach. Civility is good business. I’d welcome your thoughts.

Originally posted – Spetember 9, 2011

Last week I appeared at a trial readiness conference in an employment termination case set for jury trial in a few weeks. As my opposing counsel and I walked into chambers, the trial judge said, “It’s good to see a couple of experienced veterans. We can dispense with these trial preparation matters rather quickly”. And so we did.

This got me thinking.

There is a much to be said for reaching the level of an “experienced veteran”. I have spent all of my professional life appearing in court. Or getting ready to appear in court in some form. That amount of experience comes with benefits: Instant credibility from the bench is one. Good instincts for how the court will likely rule on particular matters is another. More examples include an understanding of what a Judge likely will or won’t find persuasive. The ability to edit extraneous matters in briefs and pleadings. And finally, the confidence to estimate how long it takes to do something.

These things are very beneficial to clients involved in risky, expensive litigation.

But, such ease and confidence hold dangers as well. There’s the false belief that you have seen and heard it all before. The risk of under-preparing for a motion or hearing (“winging it”) because you’ve “been there, done that.” Smugness and overconfidence that can lead to mistakes. Complacency. Underestimating less-experienced opponents. All of this can easily morph into arrogance and complacency.

Perhaps an optimal combination is to balance the ease and confidence of a veteran trial attorney with a rookie’s drive and paranoid fear of screwing up. You are confident and at ease handling your cases, but you still lie awake at night worrying about covering all the bases and doing your best.

It seems this balance is a good insurance policy for staying at the top of your game. Do you agree?

A couple of months ago, I took on a new case with a rapidly approaching trial. It was a relatively straightforward Federal Court action. An equipment supplier was seeking to recover about $250K in equipment rentals provided to a Federal construction project.

I took over from another attorney who’d had the case for about 18 months. This prior attorney had approached the case with a “no-holds barred” mentality. There seemed no limit to the extensive case preparation: databases, trial software, digital visual presentations, hours and hours of paralegal time scanning and indexing documents, etc. An expert had reviewed thousands of pages of materials and worked up detailed opinions. Billings to the client reflected this “over the top” approach.

When I got the case, we adopted a new approach – simplify and streamline! We waived jury, significantly reduced the trial documents, nixed the visual presentations, withdrew the expert, and pared down the witness list. We had a strong case on the facts and the law. In my view, a busy California Federal Court judge wouldn’t need all the bells and whistles, and corresponding court time, to decide this case.

We tried the case last week. The result? We were awarded about 85% of the claim with interest and legal fees – a big victory for the client. Strong case – simple trial presentation – good result!

This streamlined approach would not have worked in all cases. The facts, the law, the amounts at stake and the forum in which the case will be decided will dictate the approach in any given case. But, at least in this case, simple was better.

I’d be interested to know of cases in which you found simpler to be the best approach.