When it comes to litigation, people rarely agree on anything. Nearly everyone, however, believes that litigation is too expensive. This view is particularly prevalent in the patent community, where each party can spend more than $5 million in legal fees if even a simple case goes to trial.
There are obvious ways your lawyers can save you money, for example, by discounting their billing rates, offering alternative fee arrangements, and using widely-available tools to reduce discovery costs. Litigants have come to expect these cost-saving measures from their law firms. But none of these things actually address how your lawyers will work on your litigation matter. Litigants often focus on cost as the primary factor in hiring a law firm, when the focus should be on value. For example, a team of lawyers with higher billing rates may be able to do more for less money than a team of lawyers that bill at lower rates.
The problem is that most litigants do not know how to assess the value of legal services, much less know what questions to ask prospective law firms. After spending more than a decade representing both plaintiffs and defendants under alternative fee arrangements, I have identified several strategies and practices that consistently provide superior value in litigation (some of which run counter to widely-held beliefs in the legal industry). Here are five ways your lawyers can increase value and save you money:
1. Invest in Due Diligence
To file a complaint or an answer in litigation, your lawyers are required to conduct enough due diligence to make sure there is a reasonable basis for your claims. But litigants are often reluctant to invest beyond this minimal level of due diligence because many cases settle early, so a significant pre-suit investment could result in wasted resources.
This approach is often a mistake. A deep understanding of the strengths and weaknesses of your case will give you an advantage because you can start developing facts and positions before the other side appreciates their importance. It will also help your lawyers stay focused on the issues that will matter most. In several of my cases, early due diligence allowed my clients to pursue a case schedule that addressed key issues at the beginning of the case before the parties started spending money on general discovery. But even under a “normal” case schedule, I have found that the “investment” in due diligence is usually recouped a few months into discovery and continues to generate significant costs savings throughout the case.
What about the possibility of losing your investment in due diligence because of an early settlement? In my view, you have a significant advantage in settlement negotiations if your lawyers know the case better than their adversaries. By knowing your strengths and weaknesses, you can make sure your settlement position will ultimately be supported by the merits of the case. There is nothing worse than learning about the negatives of your case for the first time from the other side, and then significantly cutting your settlement offer in response. Moreover, many cases needlessly proceed into discovery and beyond because neither party really understood the merits of their claims. An investment in due diligence can help facilitate a settlement and avoid more significant costs down the road.
2. Create a Litigation Plan
If your lawyers have conducted enough due diligence to understand your case, the next thing your lawyers can do to save you money is create a litigation plan. At a minimum, the litigation plan should identify the evidence you will need to prove your claims, identify the likely sources of that evidence, and set forth a schedule that your legal team must follow to obtain this evidence so that it can be used in expert reports, dispositive motions, and trial (think of a Gantt Chart). Your lawyers should adhere to the plan and update it regularly. The litigation plan will only require a small investment, but will save you money both by keeping your lawyers on task and by preventing an unnecessary expansion in the size of your legal team to meet deadlines (usually with lawyers who are completely unfamiliar with your case).
3. Staff Your Case Correctly
Litigation can be like a roller-coaster. There will be times that require a significant amount of legal resources and times when things are quiet. Large litigation teams are now a thing of the past. Most law firms have learned that lean legal teams are more efficient and provide better value. Sometimes, however, cases can be staffed with too few lawyers. During the “high-volume” periods of the case, your team will need to call in reinforcements to meet deadlines. As discussed previously, these new lawyers will have to learn the case from scratch before they can contribute. The associated costs can be staggering.
A better approach is to find a middle ground by staffing your case with enough lawyers to cover the active periods of the litigation. For this approach to be successful, however, it is critical that none of the lawyers on the team are duplicating work (which is a rule that should be followed no matter how the case is staffed). During the quiet periods, skilled lawyers can stay abreast of the major issues and bill only a few hours per month to do so. That is a very small cost compared to the investment required to get a new lawyer up to speed midway through the case. Moreover, in most cases, the new lawyer will never be able to obtain the level of knowledge held by the lawyer that has participated throughout the litigation, even if only at a minimal level.
4. Make Sure Senior Lawyers Are Involved at the Front-End of Projects
One way your legal team may try to maximize value during litigation is by pushing as much work as possible down to junior lawyers. But this approach can be costly if senior lawyers fail to provide guidance and set expectations for the junior lawyers at the beginning of the project. The brief-writing process provides a great example of this problem. The senior lawyers on your legal team will usually have strong views on the arguments that should be made, the order that arguments should be presented, and the general case themes that should be incorporated into the brief. Often, the junior lawyer will draft the brief with little or none of this information. The junior lawyer proceeds to spend a significant amount of time on the brief, only to have the senior lawyer completely re-write it later. These inefficiencies can be avoided with just a small investment by senior lawyers at the start of major projects.
5. Capture Work Product
Although capturing work product is the fifth item on the list, it is probably the most important way that lawyers can provide better value and save you money. With the fast pace of litigation, lawyers typically jump from one issue to the next to meet deadlines, but often fail to capture work product in the process. Without fail, an idea or an issue that was addressed early in the case will come up later. If your lawyers do not capture their work product, there is a good chance that the ideas and analysis you paid for may be lost. Or just as bad, you will end up paying your lawyers a second time for the same work.
When some people hear the idea of capturing work product, they often think of the outdated practice of creating memos on various aspects of the case. Although extensive memos on a few issues can be worthwhile, this practice is often inefficient. Plus, it fails to capture some of the best ideas and strategies that are generated during team meetings or at other unexpected times as your lawyers work on your case. My litigation teams are all connected to a collaborative platform that allows us to organize and share all of the work product generated for the litigation. Whether it is an idea for a line of questioning in a future deposition, notes on a new legal opinion that addresses a key issue, or a list of documents that needs to be on the exhibit list for trial, all of this information can be quickly stored and used by the team at a later point in the case.