While watching television recently, I started seeing ads from a certain law firm focused on a contentious message: Bigger is better. This law firm tells people that the only way to fight the big defense law firms and insurance companies is to hire a massive law firm. Although I have nothing against this particular firm, its message ignores what we all know: In almost every case out there, clients are better served by a single, capable lawyer on a shoestring budget than by a team of “good enough” lawyers with fancy stuff. Negotiation skills, knowledge of the area and actors, and research and writing ability are what matter most, not money.
Still, size and money make life easier. This may not translate to more money for the clients, but it means that solos and small firms typically have to operate differently than large firms. For new lawyers fresh out of law school, it means living without many of the conveniences (such as full Lexis or Westlaw subscriptions) we had in law school. For all of us, it means carefully balancing workload, budget, and ethics compliance. Assuming a case makes it to discovery, big defense firms with nearly unlimited budgets can try to drive up costs, and solos and small firm lawyers must understand what they can demand and what they need to do without.
This article provides lessons I learned as a litigation consultant and supervising attorney in a plaintiff-side employment litigation boutique. First, I will discuss software and services solos and small firm attorneys should know about. Second, I will go over specific discovery pitfalls and solutions. Finally, I will discuss ethical concerns regarding workload and finances.
College, law school, and beginning lawyer trainings are full of salespeople trying to sell us the best services out there. Some lawyers get caught up in the hype. They get dedicated servers (with paid IT services for maintenance), client management software that costs hundreds of dollars per month per user, full Microsoft Office packages, dedicated laptops with virtual private network (VPN) services and remote desktop environments, a full subscription to Adobe Acrobat (or Adobe Creative Cloud), and either Lexis or Westlaw. After a few months, these lawyers often wonder why they are completely broke and have to shut down.
On the other side, some attorneys start a free Google account with Google Docs and email, grab Adobe Reader, and then use Fastcase (or another service provided by their state bar) and Google Scholar for research. These lawyers refuse to spend any money they do not need to, and they ignore safety and data security concerns. Free accounts from Google, Microsoft, Yahoo!, and others implicate ethics rules because emails can be scanned for data collection. Additionally, in certain areas of law, these attorneys will have a hard time figuring out certain file types or doing redactions.
At a minimum, attorneys should have a paid email account with security protections. These usually cost $10 to $15 per month per user. Both Google and Microsoft come with a full office suite and cloud storage. Both allow secure file sharing through cloud storage. Both have the ability to allow multiple people to collaborate on a document simultaneously, although I prefer Google Docs for this. Google is cheaper, but it has two drawbacks. First, users cannot use Google Docs offline for both their personal and professional accounts on the same computer. Second, Google’s suite does not have the ability to handle .pst files (which contain an entire Outlook email and calendar). There are .pst viewers available, but good, secure ones usually cost additional money.
Large firms will often use expensive document production programs such as Relativity to enable native or image production. In my experience, PDFs are sufficient for almost everything. In employment law, .pst files are important, as is original metadata, but that is it. Almost everything can be done with PDFs. There are open-source and free programs to do basic editing of PDFs, but I recommend a professional, paid software package if attorneys will be doing redactions or substantial document production. Having said that, Adobe is expensive. I recommend either Kofax Power PDF Pro (https://www.kofax.com, $179) or Nitro PDF Pro (https://www.gonitro.com, $179.99). Each allows users to create, edit, combine, convert, and securely redact PDFs. They also do Bates numbering with custom prefixes and suffixes, even across documents. One additional lifesaving feature is their ability to auto-create bookmarks with the file names for combined files. If attorneys use descriptive file names, a simple checkbox allows descriptive bookmarks, reducing time spent labeling everything in discovery responses.
Client portals and case management software can be helpful, and they will usually ensure compliance with ethical requirements, but they are not necessary. With secure file sharing in cloud management software, lawyers can protect important information without spending hundreds or thousands per month.
Lexis and Westlaw are great to have, but Fastcase and Google Scholar are good enough, as long as attorneys realize the limitations they bring. Both Lexis and Westlaw do offer strong discounts for sole practitioners and small firms, which can be worth it, but I recommend getting pitches from both and negotiating. Do not be afraid to walk away and use Fastcase and Google Scholar if the prices are not worth it, but keep in mind how much time is saved by having accurate symbols and summaries available.
The first tip was already given above: Use PDFs. Native is usually unnecessary, and the costs of native production are high. If a PDF will contain all the information needed, then a PDF should be used. In this same vein, everything should be electronic whenever possible. Paper can be easier on the eyes, but electronic is easier on the knees and wallet. Paper has to be securely stored until such time as it can be securely destroyed. Paper must be carried. Paper must be purchased. Stay digital. This applies to everything, including transcripts. Many courts no longer require a certified sealed transcript, but you should check before declining it. Even if a sealed copy is required, that should be the only paper copy.
Discovery delivery can also be electronic, although this can be annoying. At one firm I worked with, we used Google for Business. When I attempted secure delivery through Drive, my opponent’s firm blocked my opponent from accessing Drive to get the documents. My opponent, a Big Law attorney, threatened to contact the judge and say we did not comply with our discovery obligations. After their IT department tried and failed to access the document, they again threatened me. I still love their argument, which was they block Google because Google is not secure, but I should be in trouble because they could not access a document on an allegedly unsecured system. I pointed out the flaw in their argument, and then I granted access to their IT department, which resolved the dispute. When the same incident happened with another Big Law firm, I uploaded the files to their file-share system directly, which is another workaround. There are secure, ethical, and cheap methods of sending discovery, and sole practitioners and small firms should become familiar with them.
One annoying tactic large law firms use in briefs is to repeatedly cite to unpublished cases using only the Lexis or Westlaw citation. Some firms will intentionally (I suspect, based solely on a few experiences with no proof) figure out which research platform solos and small firms use and cite to a different one. I had a case where my opponent kept citing unpublished cases with the Lexis numbering, and trying to find the cases was quite time-consuming. I decided to send an interrogatory requesting a list of all unpublished cases cited in briefs with docket numbers as used in PACER (the docket number is preserved in both Lexis and Westlaw, so the numbers are readily available). My opponent refused, even after good faith, and I decided to actually request a conference with the judge. When I explained to the judge that PACER charges for searches based on the number of results and that we did not have Lexis, the judge agreed that we should be provided the docket numbers. Litigators know that judges hate discovery disputes, and the conference did not go well for my opponent. This is an effective strategy for combating a common Big Law tactic and reducing expenses.
The final tip I have is to carefully consider what discovery is necessary. In my practice area, depositions are the biggest expense. Video depositions are fun, but they should almost never be used. The benefits just do not outweigh the costs. Big Law attorneys love video depositions as a way to increase costs, but attorneys do not need to order a copy of the video. An e-transcript is enough, and it will have time stamps in addition to line numbering. If, by some chance, opposing counsel argues in a brief that the video is important, they must submit a copy of the video into evidence, and attorneys on the case can demand a service copy. There may be times when video is important, but it is usually just a means of driving up the bill.
If there are several witnesses, it may be necessary to avoid costly depositions. For friendly witnesses, affidavits can be secured. Because affidavits are under oath, witnesses may be less likely to change their stories, and the affidavit can be used for impeachment purposes if witnesses change their stories later. As a disclaimer, I practice in the Eleventh Circuit, which allows affidavits to be submitted in support of a summary judgment motion. I realize some circuits are different, so this may not work for everyone. For hostile witnesses, a written deposition may be an effective solution to collect evidence while keeping costs down. If the client is paying expenses, these strategies should be thoroughly discussed.
There are two main concerns when conducting discovery on a shoestring budget. Lawyers must ensure that they conduct enough discovery to adequately pursue their cases. If a lawyer advances fees pursuant to a contingency agreement, the lawyer risks a malpractice suit if he or she does not conduct enough depositions based solely on cost. The key is to act as early as possible and prioritize important depositions. Depositions can be done throughout the discovery period. After the first deposition or two, the lawyer can assess the likelihood of recovering fees. If the case looks weak, throwing more money at the case may not be worthwhile. The important things are to act early and give time for proper judgment and to make judgments based on the likelihood of success and the strength of the case, not just finances.
For lawyers who do not advance fees, there is a strong concern over what to do when discovery must happen. This could be the $1,500 charge for a copy of the client’s own deposition ordered by the other side, or it could be a deposition that the lawyer absolutely needs. Generally speaking, advancing non-contingent fees puts you on tricky ground according to ABA Model Rule of Professional Conduct 1.8. However, Rule 1.8 states that fees may be advanced and “may” be contingent. As a practical matter, most attorneys do advance some fees and put clients on payment plans. Whether this is allowed may vary by state, but it generally should be allowed in circumstances where not advancing a fee would be detrimental to the client’s case.
Bigger is not always better. Small law firms can compete with Big Law budgets, but it takes careful planning and consideration. Being smart about budgets, being up-front with clients about expectations concerning fees, being proactive in discovery, and properly prioritizing what is important can see an attorney through. We can always tell ourselves what we tell our clients when they walk into that deposition with three Big Law attorneys on the other side of the table: “Look how scared they are—they had to bring three attorneys to face me.”
