Attorneys face increasing pressure from clients to keep litigation costs as low as possible. What can lawyers do to keep these costs from skyrocketing and, ultimately, to keep clients happy?
Use your client’s assets. One of the most important steps you can take to keep costs down is to develop and maintain an open line of communication with your client. Attorneys often spend hours zealously tackling an intricate problem in a case only to learn that the client had already addressed that same problem successfully in another case. The result? The attorney has demonstrated to the client that the client knows more about the law than the attorney, and the attorney ends up on the hook for a hefty bill that the client is not inclined to pay.
In another common scenario, an attorney presses forward with a brilliant strategy only to discover that the client is not on board with it. The attorney’s bullish tactics rack up high legal bills and perhaps push the case down an avenue from which there is no easy extraction.
Even though we have law degrees, years of experience in the courtroom, and the ability to run circles around over-matched adversaries, many of us fail to learn everything we should about our own clients. As part of your pre-suit investigation, interview your client about past cases and claims. Find out what worked—and what did not work—in another case. Inquire about the facts, the witnesses, the jurisdiction, and the legal theories.
You might also have success approaching counsel from prior cases involving the same opposing party. These lawyers can be a rich source of material, even if they were unsuccessful in their litigation—perhaps especially in that situation.
The client can also be a rich source of staff resources, particularly early on in the case, when costs can be significant. The initial pass-through document review can be helped dramatically when you have the client’s technical staff gather the information you need. This is especially true when a review of the client’s files will require an in-depth knowledge of a technical field or when collecting particularized business information.
Your client’s well-honed negotiation skills may provide another way to reduce litigation costs. The client may have spent years negotiating the best deals for his or her business. In many cases, for example, the client may already have an effective information technology group or vendor with whom they have negotiated special lower rates. Use that relationship to take on as much of the document review process as you can.
Focus case strategy. Perhaps the single greatest cost-saving measure is establishing your overall case strategy early on so that it informs your output. A thorough pre-filing investigation is necessary. Through this investigation, you will identify the relevant facts and witnesses, the appropriate legal theories under which the case might travel, and, perhaps most important, whether the availability and measure of damages in the case make it worth your client’s pursuit of it at all. By engaging your client in an objective cost-benefit analysis of the overall case value, you demonstrate your willingness and ability to help your client minimize litigation costs in every possible way. Most clients will prize this trait and reward it with repeat business.
If you and your client decide to pursue the litigation, your pre-suit investigation will enable you to draft a narrowly tailored complaint that will help contain your client’s costs and naturally reduce the likelihood that you will have to defend against a motion to dismiss or a motion to strike. Defendants can use early case investigation similarly to narrow the scope of their answers.
Once litigation begins, identify your goals before engaging in motion practice. If you think the case lends itself best to summary judgment, consider forgoing motions to dismiss, which might tip your hand and cost a lot of money. The most likely outcome of a motion to dismiss is that the plaintiff will understand where his or her case needs more work, and the court will grant leave to amend. You have now spent thousands of dollars and months of your client’s time to fight a battle that has resulted in an amended complaint. Your client is now obligated to answer the complaint, which may have become much stronger. Unless you have a surefire winner that will result in dismissal with prejudice, consider keeping your strategy to yourself.
Still it is likely that you will have to file or reply to a motion at some point. When you do, save costs and impress the court by presenting only your best arguments, rather than briefing every possible argument that might possibly relate to your case or motion. This accomplishes at least two things. First, judges appreciate reasonable attorneys who manage to refrain from throwing every conceivable case at the judge in the hope that something might stick. Second, by bypassing the more marginal issues, your brief can focus on the real winners.
To narrow your focus properly, you need to identify the key issues. Jury instructions provide an outstanding guide to the key issues of law and fact that need to be developed during the case. By referencing the jury instructions applicable to your case, you will quickly identify what you need to prove, whether you have the evidence to prove it, and what the jury needs to see at trial to rule in your favor.
Cooperate with opposing counsel. So many of us think: “I didn’t go to law school just to negotiate settlements.” Unfortunately, that drive to beat your opponent can cost your client a lot of money.
Rather than eyeing your opponent’s jugular from the outset, strive to develop a cooperative relationship early on and maintain it. A strained or outright contentious relationship with opposing counsel nearly always causes litigation costs to skyrocket. Of course, it is not always possible to develop a cooperative relationship with opposing counsel. But even then, take every opportunity to build a positive relationship.
Form an efficient team. Additional cost considerations come into play with expert witnesses. Your expert team should have a good blend of experience and low cost. This can often be accomplished by hiring an expert with a competent staff. The staff handles the grunt work of preparing drafts of the report under the expert’s supervision, then the expert adopts the report and conveys the message during depositions and at trial.
Choose your court wisely. A final consideration for cost savings is your choice of court. Although you might have grounds to bring the case in federal court, you may be more successful at keeping costs down if the case proceeds in state court. The jurisprudence of the federal court system makes a summary judgment motion nearly mandatory. State court actions are less likely to face costly summary judgment motions as part of the litigation. Similarly, the application of Daubert and Twombly to your federal case increases the likelihood that you will face a motion to disqualify an expert or a motion to dismiss the complaint. These are just the types of motions that you would like to avoid if you are looking to save costs.
ABA Section of Litigation
This article is an abridged and edited version of one that originally appeared on page 48 of Litigation, Fall 2011 (38:1).
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Books and Other Recent Publications: Parallel Proceedings: Navigating Multiple Case Litigation; Managing E-Discovery and ESI; The Curmudgeon’s Guide to Practicing Law; Litigators on Experts; Winning the Jury’s Attention; The Young Litigator; Pleading Your Case; Complex Insurance Coverage Litigation Handbook; Civil RICO, 3d ed.; A Practitioner’s Guide to Appellate Advocacy; The Woman Advocate, 2d ed.; Employment Litigation Handbook, 2d ed.; Model Witness Examinations, 3d ed.; Effective Depositions, 2d ed.