GPSolo Magazine - Oct/Nov 2003
Complex Litigation for Small Firms and Solo Lawyers
The words alone strike fear into the hearts of litigants: "complex litigation." It's a legal process that swallows up time, energy, and money, continues for an unknown period of time, and ends with an outcome that could not have been predicted with any degree of certainty.
Most plaintiffs' lawyers would rather avoid it if they can. But some are irresistibly drawn to its intellectual challenges and seduced by the excitement of donning a white hat and galloping across the finish line to the cheers of a vindicated client. The hoped-for prize is, of course, a contingent fee far larger than could ever be earned by cranking the billable hours.
To defense lawyers, winning a complex case is nice, but simply getting the case in the door can be a prize in and of itself. The defense of a single complex case can create an income stream long enough to put one's children through college and graduate school, assuming counsel is skillful enough to keep the paying client happy over the long haul.
The court system seems to be less enamored of complex litigation than the defense bar. Complex cases, with their thicket of discovery, scheduling, confidentiality, bifurcation, and "junk science" issues, to name a few, cling to the docket like burrs on a pant leg. Judges view this longevity as a negative, because old cases lingering on the docket can make it seem like the judge isn't getting his or her work done.
Whether you are trying to avoid it, find it, or create it, complex litigation may one day find its way into your caseload. The common wisdom is, and has long been, to deal with it by breaking it down into manageable sections. How that is done today differs significantly from how it was done in years past.
The Traditional Approach: For Large Firms
Defense firms traditionally sectioned complex litigation into manageable parts by heavily "staffing" the cases with partners, associates, and paralegals assigned to work almost exclusively on one discrete aspect of the case. For example, in a product liability case, associate/paralegal teams might be formed to develop facts relating to the industry state of knowledge about the hazards of a particular chemical at a certain point in time. The associates would take depositions and collect information via paper discovery for review by the partners. Without the assistance of the paralegals to keep track of the deposition transcripts, exhibits, documents, and interrogatory answers, the associates would be paralyzed. One could not prepare for a deposition or create a factual summary or a timeline without having access to the transcripts and documents containing the facts. Their location, and how they were organized, was usually known only by the paralegal in charge, who might also be supervising other paralegals assigned to summarize the depositions and exhibits.
Continuing up the line, without the associates and their in-depth knowledge of their assigned facts and issues, the partners would be unable to evaluate the strength of the case or develop strategies for handling or settling it. Each time the partners needed a piece of information, they would look to associates to ferret out the needed documents and facts with the help of the paralegals. During the course of any given case, a paralegal could be instructed to comb through Mr. Smith's deposition 20 or 30 times, looking for different information for a different purpose during each pass. One day it might be to find names of potential witnesses, and another day it might be to find what the deponent said about his education, and yet another time it might be to determine where and when the documents containing corporate records would be located.
The "staffing" model of complex litigation management, when implemented successfully, resulted in a huge, symbiotic billing ecosystem that billed efficiently but worked highly inefficiently owing to the repetition of the same or similar tasks for different purposes. Defense firms gravitated to this litigation management style because there were many people working on the case, each of whose work was totally necessary, never quite finished, and always billable.
In contrast, on the plaintiff's side, when a retainer agreement called for something other than monthly billing, such as a contingent fee or a fee award at the end of the case if the plaintiff prevailed, the staffing concept was generally viewed as being too resource-intensive. More likely, a single lawyer or a team of two or three lawyers would try to hold all the necessary information in their brains and on random legal pads. Cataloging such massive amounts of information in a meaningful way, while highly desirable, was generally considered to be so time consuming and labor intensive as to be, as a practical matter, impossible.
As the years passed, plaintiffs continued to sue, using more and more sophisticated legal theories and arguments. Defendants responded by conducting far-reaching discovery, and it appeared as though the courts were about to explode from overwork. Clients were beginning to notice how much they were paying lawyers to defend their cases using the staffing model, and they didn't like it. Many created in-house positions for lawyers to keep an eye on outside counsel and audit their bills. The year 1990 was a turning point. A well-known Annapolis, Maryland, lawyer was convicted of fraudulently overbilling one of his major litigation clients. Courts started thinking about limiting the amount of time lawyers could spend developing issues and facts, thereby pulling the plug on what had been, up to that point, the lawyers' right, if not duty, to turn over and look under every stone along the litigation path, no matter how long it took or how expensive it became. In 1993 the federal courts implemented a requirement that lawyers exchange, early on in the case, the basic information necessary to make an informed decision about settlement, without the need for all the paperwork previously involved in requesting such information. In 2000 the federal courts placed a one-day (seven-hour) limit on each deposition.
New Approaches for Solos and Small Firms
While all this was going on, enterprising trial consulting firms and software developers were studying what lawyers needed to help them divide their cases into sections or categories and to "staff" them in ways that did not require unlimited time and resources. Even though some defense counsel were reluctant to give up billing opportunities, client attitudes gave them little choice. The judicial perception that complex litigation was becoming a pernicious bloat on the court system worked to the advantage of plaintiffs' lawyers, who wanted to litigate core issues rather than collateral issues. These circumstances created a perfect environment for the creation and development of the litigation management software available today that allows virtually any sole practitioner or small firm to manage complex cases on a notebook computer more efficiently and effectively than some of the nation's largest law firms could ten years ago using the staffing model. Not to be left behind, defense firms embraced the new technology as well, and today a new, more efficient mindset flourishes. At every level—client, lawyer, judge—the seminal question is, do we really need to be doing this, and if so, what is the most efficient way to go about it?
Whether a case is complex, or someone is simply trying to make it appear complex through the use of that word, the new software tools currently available, coupled with thinking techniques such as brainstorming, can be invaluable in breaking the case into manageable parts, or in debunking the notion that the case is even complex in the first place.
Brainstorming. "Brainstorming sessions can help you deal with case complexity problems," states Greg Krehel, CEO of DecisionQuest's CaseSoft division. "Early in case preparation, brainstorming helps you flesh out the critical factual disputes and set goals for discovery. As trial approaches, brainstorming helps you assess case strengths and weaknesses, develop themes, and finalize trial strategies. . . ." Rather than trying to swallow the case whole, you deal with it in manageable chunks, for example by developing certain lists at the very beginning of the case and refining them as discovery proceeds:
- a list of questions that need to be answered;
- a cast of characters;
- a list of factual and legal issues; and
- a chronology of key facts.
Legal database software. Thanks to new software technology, solos and small firms can now transform these brainstorming sessions into a practical method for managing complex cases. Affordable programs such as CaseSoft's CaseMap help you organize and explore the facts, cast of characters, objects, issues, authorities, and questions in a case, and even create reports for use during hearings, trials, and client meetings. Such software allows much greater efficiency than the old staffing model; once you enter the information, it is linked to other parts of the database and can be retrieved in answer to a variety of different questions.
For example, during the first and only read-through of his transcript, a paralegal can enter all the information Mr. Smith testified to at his deposition, and link each fact to all the issues, questions, and objects in the case. Later, when the paralegal is asked what Mr. Smith said about names of potential witnesses, his education, and where and when the documents containing corporate records would be located, she can simply run these three reports with a few clicks of the mouse. She will not need to reread the deposition or its summary each time. In fact, if the paralegal has gone home for the day when the lawyer realizes the need for this information, the lawyer can call up the reports herself without even bothering the paralegal. Goodbye, bloated symbiotic billing ecosystem.
The new software also eliminates the labor-intensive filing and retrieval systems needed for the myriad documents crucial to complex litigation-removing another barrier that once prevented solos and small firms from taking on such cases. By scanning and entering these documents, you can retrieve them at the push of a button. Need copies of all documents authored by the defendant pertaining to the real estate deal? An itemized list of documents produced in bates-stamped order? Everything is instantly available on the computer.
Chronology-graphing software. Another major headache of complex litigation is straightening out the chronology of the case. Here, too, software is now available to help solos and small firms. Having trouble keeping track of what happened when? No need to query your partner on the case or start rereading the interrogatory answers. Programs such as CaseSoft's TimeMap create professional-looking visuals that can be used as thinking aids, at depositions, in briefs, or in client status reports. One of TimeMap's most useful features is its "comparison of conflicting accounts" that displays conflicting witness accounts above and below a common timeline, leaving no doubt about who said what when. It's hard to say whom these visuals help more-the lawyers, the clients, or the jury. Users can enter the dates and facts directly into such chronology-graphing programs or import them from a legal database program. The finished product can be printed out, e-mailed, or saved as jpegs and metafiles that can be used in word processing documents or PowerPoint presentations.
While they are highly sophisticated and extremely versatile, these programs are easy to learn. Recently I decided to use TimeMap to plan my daughter's summer camp schedule, which required a comparison of various local camp opportunities to determine whether they ran consecutively or overlapped. My fifth-grader watched over my shoulder for ten minutes or so before announcing, "I can do that, Mom. Let me finish it." And she did.
Complex litigation is no longer reserved for wealthy firms or martyr lawyers with no personal life. Anyone with the patience to develop a litigation plan, a budget, and a timeline can join in the fun.
Robin Page West is a partner at Cohan & West, PC, in Baltimore, Maryland. She can be reached at firstname.lastname@example.org.