Controlling Litigation Costs
Law.com carried an interesting and useful post by Stewart Weltman of The Corporate Counselor on best practices to control litigation costs and optimize results (“Rules of Thumb To Rein in Litigation Costs and Optimize Results”).
Before commenting on the substance of the article, I need to make clear an important distinction (from our point of view) and a useful quibble.
First, the distinction: the article is written as advice to in-house corporate counsel. Our experience is mostly with clients who are far from the size where they would employ full time in-house counsel. Thus, the strategies to reduce costs would be selected and applied by non-lawyer business people.
The quibble is that if the author’s advice is taken just a bit too far, in-house counsel will end up micro-managing the litigation and relieving outside counsel of accountability for results. All the major strategic and tactical decisions would be taken by in-house counsel. In our case, the decisions would be made by non-lawyer managers and proprietors.
All of the above having been said and noted, the substance of the article can be turned around and re-characterized as a more general identification of options to be presented to the client (with or without the mediation of in-house counsel) along with an identification of the associated risks. There are risks. When you choose to dispense with a “needless” deposition, you better be right about the “needless” part.
I strongly recommend reading the full article to fully appreciate the “rules of thumb” to control costs and optimize results presented by the author. But, here is how I would boil them down:
- In motion practice, choose your battles carefully, don’t make every motion possible;
- Don’t make every argument, urging a losing position loses credibility;
- Don’t get into discovery disputes: produce more, rather than less; limit your document requests and don’t use interrogatories;
- Dispense with needless depositions and presume they are not needed until demonstrated otherwise;
- Don’t train your adverse witnesses with your best cross-examination at depositions;
- Don’t employ an ediscovery team;
- Do employ a “devil’s advocate” lawyer to test your counsel’s strategy and tactics.
A consistent thread running through the article is the use of a “best-case story” to keep your case simple, short and effective.
Ultimately, we can’t disagree with the author’s conclusion that there is no quick fix. Controlling litigation costs requires close attention to every aspect of the litigation.
Great job boiling it down.
Interrogatories are almost always cost-prohibitive given the same questions can be asked in person at a deposition. Failure to be one's own Devil's Advocate is the stuff of malpractice complaints. Discovery motions almost always result in pyrrhic victories; collegial and diplomatic communication between adversaries is less expensive and less strenuous.
Very nice and practical piece. Keep up the good work.