Cutting Litigation Costs Without CompromiseBy Olivier A. Taillieu and Mark Wolf
Let’s face it—litigation is expensive and getting more so every year. While some lawyers have begun to explore alternative fee arrangements, such arrangements have not caught on as widely as anticipated. Absent such arrangements, attorneys face increasing pressure from clients to keep costs as low as possible. This article discusses some practical ways to keep litigation costs from skyrocketing.
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 tackling an intricate problem only to learn that the client already addressed that same problem successfully in another case. The result? The attorney has demonstrated to his 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.
Even though we have law degrees, years of courtroom experience, and the ability to run circles around over-matched adversaries, many of us fail to learn everything we should about our clients. As part of your pre-suit investigation, interview your client about past cases and claims, and find out what worked and what did not.
Once you have the full picture, rely on your expertise to assess how to use that information in your case. There is no value in reinventing the wheel; you add value by making the wheel better. You know that the law can vary from district to district, and even within the same district over time. You may also recognize factual distinctions that would dictate a different outcome in your case.
You might also have success approaching counsel from prior cases involving the same opposing party. Those lawyers can be a rich source of information, even if they were unsuccessful in their litigation—perhaps especially in that situation.
The client can also be full of resources that can lower costs. For example, the client’s technical staff can gather the information you need in the initial pass-through phase of document review. This is especially efficient when a review of the client’s files requires in-depth knowledge of a technical field (as in a high-tech patent case) or when collecting particularized business information (as in a second request from the SEC). Of course, sometimes the client’s resources are not just helpful but necessary—for example, when the files to review are in a specialized format not easily understood by most attorneys, such as internal databases. When you push for utilization of in-house resources, your client will appreciate both the option to use its own people and your efforts to keep costs low.
You should also consider using your client to call on others in the industry who might contribute to the case. We have all dealt with businesspeople wary of talking openly with lawyers, perhaps for fear of getting overly involved or exposing some self-incriminating facts. But when a competitor, customer, or even a complete stranger in their same position in the industry calls, these same businesspeople often prove open and insightful.
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. 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 minimize the costs of document review.
The client’s connections in the industry often make it easier to find qualified expert witnesses or services that can provide helpful presentations for use at trial. For example, the client might be aware of a video production service that is already familiar with the client’s products, thereby decreasing the cost of developing explanatory videos for use in a product-liability, trademark, copyright, or patent case. Similarly, the client’s marketing professionals (whether in-house or outside) can be a cost-effective source of graphics, surveys, or data that may otherwise have to be created from scratch.
Focus Case Strategy
Perhaps the single greatest cost-saving measure is establishing your overall case strategy early. Through a thorough pre-filing investigation, you will identify the relevant facts and witnesses, the appropriate legal theories for your case, and, most importantly, whether the availability and measure of damages in the case make it worth your client’s pursuit at all. That last question—whether the case is worth it—is a difficult one to present to your client, especially if your client is anxious to file suit. By engaging your client in an objective cost-benefit analysis, however, you demonstrate your willingness and ability to help your client minimize litigation costs in every possible way. Most clients will prize that trait and reward it with repeat business.
If you and your client do decide to move forward, your pre-suit investigation will enable you to draft a narrow complaint that will contain your client’s costs and reduce the likelihood that you will have to defend against a motion to dismiss or strike. Defendants can use early case investigation similarly to narrow the scope of their answers.
By keeping the initial pleadings simple, you lay out a clear road map for your case, save money at the filing stage, and minimize the chance that you will have to deal with extraneous discovery requests, a mountain of motions and letters, and hours of unnecessary deposition testimony.
Your simplification of the case also makes it much easier for the jury to rule in your favor. Juries don’t want to hear a dozen different theories of why your client should prevail; they want to hear your client’s story. The simpler the story, the easier it will be for the jury to understand and buy into your theory of the case.
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. Motions to dismiss may be effective in delaying litigation, but they rarely succeed in knocking out the most damaging claims. 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 during the litigation. When you do, save costs and impress the court by presenting only your best arguments. This strategy accomplishes two things: First, judges appreciate attorneys who refrain from throwing every conceivable case at the judge in the hope that something might stick. In reality, your third-tier arguments will not put your motion over the top; by including them, you run up the bills to present a brief that will not help your client. An overloaded brief may bury your strongest argument in a mountain of garbage, dooming you and your client.
Second, by bypassing more marginal issues, your brief can focus on the real winners. With that extra time and space, your brief can be more concise and compelling. Moreover, by narrowing the focus in the motion to those issues that really matter, you simplify your task going forward, presenting the parties and the court with a clear picture of the core arguments.
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. By keeping these things in mind from the beginning, you can clearly define your goals for discovery and motion practice.
Just as jury instructions offer a game plan for your case, they also give you your opponent’s game plan. The jury instructions essentially tip your opponent’s hand as to the information he or she needs to get from depositions and other discovery vehicles. By preparing, you can effectively place roadblocks to your opponent’s case—not because you are withholding information but because you have anticipated and can counter the use of that information.
Sometimes, despite your best efforts to build a strong case for your client, you will be on the wrong end of the case. Even if you don’t believe you have a real chance to win, you can maximize results for your client through settlement. The sooner you can get to that point, the better for your client.
Develop a Cooperative Relationship with OpposingCounsel
But so many of us think: “I didn’t go to law school just to negotiate settlements. I suffered through that evidence class so I could make it to the courtroom!” 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 and maintain a cordial, cooperative relationship with opposing counsel. A strained or contentious relationship between counsel nearly always causes litigation costs to skyrocket. In a discovery dispute, for example, the most cost-effective way to resolve the issue begins with picking up the phone and having a reasonable conversation with opposing counsel.
Of course, it is not always possible to develop a cooperative, amicable relationship with opposing counsel. Some lawyers simply will not play nice. At other times, you might feel so certain about the rightness of your position that you feel no need to budge. Even when this happens, try to take every opportunity to build a positive relationship between you and your counterpart whenever possible. Every bit of goodwill earned becomes capital you can spend later in the litigation.
Clients looking to cut costs in every corner of their budget place high value on outside lawyers and firms that offer streamlined, cost-effective litigation services without compromising strategy. Demonstrate to your clients a willingness and ability to minimize the cost of litigation by leveraging your client’s own assets, focusing your case strategy to highlight the key winning issues, and developing a cooperative relationship with opposing counsel. Your efforts will be rewarded with repeat business and enthusiastic referrals.
Olivier A. Taillieu is a partner with Zuber & Taillieu LLP, Los Angeles. Mark Wolf is general counsel with FMC Technologies, Houston.
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