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Trial Lawyer on the Road

Trial lawyer on the road – five depositions, five days, three states.

Depositions, as always, are fun. Always great sport to grill somebody else’s witnesses on their own turf.

Other than that – long flights, airports, hotel rooms, not enough sleep, G&Ts in hotel/airport bars, late night drives to hotel with iPhone/Siri directions, rental cars, late night/early morning prep, where are my documents?, OJ and quick snacks rushing for next plane, obnoxious attorneys, combative witnesses, snide opposing parties, friendly court reporters, crappy food, occasional good food, drinks and dinner with local counsel, strange conversations with complete strangers sitting next to you on plane, flying over major cities at night – so cool!, pages flying by on kindle, stale music on shuffle, old people cutting in line for plane, flight delays for “maintenance” issues, pounding out more emails after plane doors are closed and before attendant catches on, another drink on plane?, texts with Jill and the girls – the best, f’ freezing weather everywhere, sun is missing, running rest of practice from a phone, deadlines piling up at office, billing entries piling up on yellow pad, emails piling up on phone, reviewing drafts on iPhone/iPad, days crawl by, days fly by, next question, next objection, next answer, next deponent, . .

And so it goes!

All part of the job.


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!

Forget “The Book” – Just get a Case!

For young attorneys looking to generate new business, it may help to stop thinking about “Building a Book” and start thinking about just “Getting a Case”.

The “Book of Business”, a daunting, interesting phrase. Every lawyer talks about it. It is ever present in the legal business, in any law firm. He has a big “book”. She has built a nice “book”. He has a portable “book” and is looking to make a lateral move. You need to build a “book” or you will never be a partner. I need a “book”. You need a “book”. “Book”, “Book”, “Book.” And, so on. But, what does that mean?

The “Book” – it describes, or implies, highly successful attorneys who carry a few large loyal clients around in their pockets who generate reams of cases year after year after year. And that is the reality for some attorneys – most large firms have attorneys who have such books – insurance carriers or private clients who provide an ongoing flow of repeat work. And that is wonderful.

But, for a great many attorneys, including myself, it is not about the “Book” as defined above. Rather, it is about the ability to consistently generate work, one case at a time, from a variety of sources, year in and year out. I have a nice group of cases right now, from a variety of sources both inside and outside my firm. But, most of those cases will be gone a year, or even three months, from now, to be replaced by the next nice group of cases from a variety of sources. Is that a “Book of Business”? I don’t know. But, it is a flow of good work for me, for my associates and for my firm. Let’s call it a “book” I am currently reading, to be replaced with the next book when I am done reading the current one. That’s my “book”! And, I hustle all the time to keep that “book” refilled with new cases.

My “book” ebbs and flows. Sometimes, there are lots of new cases in my “book”; other times, the “book” runs low, needs to be refilled and I am laying awake at night worrying. There are very good years with big fat “books” (think, big hard-bound Russian novels) and there are ok years with thinner books (think, trade paperback spy novels). But, I have found that if I continue to hustle and work hard, my “book” is always there – there is always another case.

For lots of attorneys, I suspect, for most, its not 20 cases from one source, its 20 cases from 20 different sources. And they get those 20 cases, one case at a time! But, 20 good cases is 20 good cases, no matter where they come from.

For many attorneys, especially young attorneys, it just too daunting, too overwhelming, to think about “building a book”. Just seems to difficult to do, so they do nothing, year after year after year. I suggest it is much better to think in terms of “getting a case”. Just get a case, sign it up, deposit the retainer, add it to your case list, pat yourself on the back – then get the next case, sign it up, deposit the retainer, add it to your case list, pat yourself on the back, – then get the next, then get the next. One case at a time, one client at a time! Next thing you know, you are keeping yourself busy with your own “book” of cases and pounding on the partnership door. Every successful rainmaker will tell you they are always hustling for the next case, then the next case, then the next case,…… And so it goes.

So, for those attorneys who want to generate their own work and build their own practices, I say: Forget “The Book”, Just get a Case!

Fonss, Estigarribia, and Klinedinst PC’s Expanding Corporate, Transactional, Securities and M&A Expertise.

In September, my firm, Klinedinst PC, added Christian P. Fonss and Mariel I. Estigarribia, principals of the transactional and securities firm, Fonss & Estigarribia LLP, as shareholders.

I have known Chris and Mariel for some time and was very pleased to have them join Klinedinst. Chris and Mariel, attorneys with a wide range of experience in M&A, corporate, securities, and transactional matters, immediately undertook to Co-Chair the firm’s Corporate and Securities and Transactional and M&A practice groups. Chris and Mariel have really hit the ground running, dramatically expanding the firm’s ability to service our diverse clientele. Fonss and Estigarribia also provide a transactional and dealmaker’s perspective for the litigators of the firm’s Complex Litigation Practice group, a practice group that I chair.

To help you understand KPC’s broad, and rapidly expanding, capabilities within the corporate, transactional and securities legal space, I am including below a representative list of transactions handled recently by shareholders Chris Fonss and Mariel Estigarribia:

Securities Matters

Served as counsel to multiple public company clients across various industries
in connection with the preparation, review and filing of ‘34 Act reports,
including Forms 20-F, 10-K, 10-Q, 8-K, 6-K, 3, 4 and 5 and proxy statements.

Represented various public company clients in the SEC review and comment

Advised multiple technology startups regarding capital raising transactions.

Served as counsel to a large accelerated filer in connection with a 1-for-10
reverse stock split on domestic and foreign exchanges.

Served as counsel to Indian investor in connection with the Series A
Preferred Stock financing of a technology start-up.

Mergers & Acquisitions

Served as counsel to a leading provider of orthotics and prosthetics in connection
with numerous business acquisitions.

Represented public cyber-security company in acquisition of national communications
lifecycle management services provider.

Served as counsel to a large automotive supplier in connection with its
$250M share purchase of a European and Asian laser-welded blank subsidiary
of the largest steel manufacturer in the world.

Served as counsel to San Diego-based furniture rental company in connection
with a sale of substantially all of its assets.

Contract Drafting/Review

Advised automotive original equipment manufacturer in connection with
Spanish language promissory note and security agreement.

Drafted and negotiated private label supply agreement for Southern California
manufacturing concern.

Drafted and negotiated services and sponsorship agreement with major
California entertainment company.

Drafted and negotiated strategic supplier agreement for local specialty goods

Joint Ventures

Served as counsel to a global retail company in connection with a proposed
joint venture with a leading mortgage broker.

Served as counsel to multiple entrepreneurs forming a company focused on
the promotion and operation of participatory sporting events.

Served as counsel to an SBA 8(a) company in connection with negotiations of a joint venture.

Real Estate

Served as counsel to a leading San Diego accounting firm in connection
with the drafting and negotiation of an office space lease.

Served as counsel to public cybersecurity company in connection with the
review and negotiation of multiple leases.

Again, I am very happy to have Chris and Mariel working just a few doors down the hall of our San Diego office. As a friend, its good to have them here. As a business litigator, it is good to have their perspective and insight into the deal side of disputes. As a shareholder, it is good to have them expertly undertaking significant transactional work for our clients.

Upward and onward!

The San Diego County Bar Association Board of Directors Election – A Win and Many Thank Yous.

The election is over. I won a seat on the San Diego County Bar Association Board of Directors. I will sit for a three-year term commencing next month. I am quite happy with the result.

To those who helped, thanks for your endorsements and support. I also thank my firm, Klinedinst PC, its fine attorneys and excellent staff for their support, and the firm’s Executive Committee for its commitment of firm resources to the effort.

I especially thank Scott Carr and Jennifer Dominguez of the firm’s Marketing Department and my friend and law partner, Heather Rosing, for their help and hard work.


If you haven’t already done so, please vote! Thanks. Jim


San Diego Attorneys – I ask one more time for your vote for the Board of Directors of the San Diego County Bar Association.

Voting is almost done! Please cast your ballot at

With looming budget cuts already impacting our clients’ access to justice, your vote today has more importance than ever. The SDCBA has a truly vital role to fulfill in our community, representing the needs of its diverse membership, while also serving the needs of the public at large. Now more than ever, we need to maintain and strengthen lines of communication between bench and bar; continually re-assess and, where needed, re-structure the way we deliver services and benefits to bar members and information to the public; and, bolster support for our local courts during these challenging fiscal times.

I have been very active in SDCBA, North County Bar Association and other Bar-related activities over my…

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