Get An Early Case Evaluation
One of the most important steps you can take to control your litigation costs is to conduct or obtain in every case an early assessment, both factual and legal, of the claims and defenses. This assessment will allow you to evaluate the feasibility and desirability of an early, cost-effective resolution to the case, whether through settlement, mediation or other alternative dispute resolution process, or dispositive motion practice. Even where an up-front resolution does not seem likely, the early assessment should allow you to adopt a controlled, strategic approach to pretrial discovery, settlement, ADR, and/or motion practice that can dramatically reduce your costs.
If you lack the in-house resources to perform an early case assessment, you may want to obtain one from outside counsel, who may or may not be the same counsel you retain to litigate the case. One counsel could perform an early assessment in all of your cases, wherever they are brought, since he or she need not be admitted to practice in the jurisdictions where the cases will be tried. The more familiar an outside attorney becomes with your company and your litigation, the better he or she can meet your needs.
Establish and Monitor a Litigation Plan and Budget
Once you have conducted or obtained your early case evaluation, work with outside counsel to develop a realistic litigation plan and budget consistent with your goals and strategy. While a budget is an estimate, not a guarantee, it is nonetheless an important tool for communication and control that can ensure that everyone is on the same page from the outset of a case through its completion. The budget should be neither too high nor too low, since surprises are no more desirable than unnecessary costs.
Be willing to leave some stones unturned. Outside counsel cannot choose, without your blessing, to narrow discovery, limit affirmative motion practice, or fail to take other actions that could possibly aid your cause, even if those actions are unlikely to have a significant effect on the outcome of the case. Counsel should, however, be prepared to help you perform a realistic cost-benefit analysis so that you can make these critical judgment calls and ensure that they are reflected in the litigation plan.
Control Case Staffing and Billable Tasks
Lean, dedicated case staffing creates maximum efficiencies. Many cases can be handled by one or two attorneys, with appropriate paralegal support. When fewer professionals must familiarize themselves with your company and the file and engage in internal communications, you reap the savings.
Consider requiring advance approval of tasks that entail any significant time commitment, such as legal research and dispositive motions. You may find that the firm has already conducted the necessary research in another case or that you can supply it from a prior case of your own. Before authorizing a dispositive motion, evaluate carefully whether it is likely to succeed or will otherwise advance your litigation strategy. A summary judgment motion can cost $50,000 or more in a complex business case, and many trial judges view such motions with skepticism.
Consider Hiring Outside Litigation Management Counsel
Managing litigation to secure optimal results at the least possible expense takes time and expertise. Whether you have a lot of litigation or very little, you may want to retain outside counsel experienced in litigation management to supplement your internal resources and ensure that you are minimizing your litigation spend.
In addition to taking the lead on one or more of the cost-control mechanisms outlined above, outside litigation management counsel could:
- Identify the least expensive outside counsel appropriate to a case by employing both their own network and yours and interviewing multiple counsel. This interview process tends to generate some level of competition, often resulting in lower hourly billing rates or attractive alternative billing arrangements, as well as other advantageous terms of retention. The interviewees will also provide free advice that may aid the development of your litigation strategy.
- Handle select aspects of specific cases where that is most cost-effective, such as factual investigations, witness interviews and deposition preparation, coordination of discovery responses (potentially including electronic document recovery and review), settlement negotiations, mediations, responses to demand letters and subpoenas and other third-party process, and coordination of litigation with insurers and indemnifying or indemnified parties.
- Help develop internal litigation management policies and procedures, including practices related to data management, litigation holds, and e-discovery.
- Track and report, or help you track and report, your litigation results, trends, costs, cost savings, and lessons learned.
These are only some of the ways in which you can control your litigation costs. The key is to work with attorneys who are not only qualified to handle your work but also attuned to your desire for cost control, and equipped to provide it.
For more advice on controlling your litigation costs or for more information about Prince Lobel's litigtation, litigation management, or environmental services, please contact Jo Ann Shotwell Kaplan at 617 456 8097 or jkaplan@PrinceLobel.com.
