Recession-Era Litigation

The first thing we think about in difficult times is our continued survival--our ability to keep our businesses afloat. For many law firms, that has meant re-tooling, layoffs, cost-cutting, discounts, and whatever other measures are necessary to continue to make a living. I think we need to do more than that. To me, this seems like a good time to re-examine the way we practice, so as to help clients conduct their businesses more efficiently.

One part of that re-examination might ask whether litigation can be conducted more efficiently.
That doesn't just mean cutting billing rates, or coming up with clever alternative fee arrangements. To look at the profession that way would treat the provision of legal services as a commodity. It's not enough to sell our billable hours more cheaply, or to figure out better ways to package those hours. It's more important to find ways to solve problems for clients without using so many of those hours. For example, we know that most of the work that is done during the pre-trial phase of a case is of little use at trial. I rarely find much material in the reams of pre-trial motions that are sometimes filed that can be used at trial. I don't introduce most of the documents obtained during discovery as exhibits; and I don't cite very much of the deposition testimony. So it would seem that one way of conducting litigation more efficiently is to avoid doing work that is not going to help settle the case, or help try the case. This goal may be easier said that done, since we don't always know in advance what will prove useful later. But it is probably good to question whether the work we are doing is likely to prove beneficial if the case goes to trial. We also know that more than 90% of cases never even go to trial. So another way of conducting litigation more efficiently is to try to reach settlements sooner, before a huge amount of time and effort are put into pre-trial motions and discovery. In most cases, this time and effort does not change our view of the facts significantly. Therefore, it generally makes sense to explore settlement early.

Another part of the re-examination involves questioning whether the tools of litigation are the best means of resolving the client's problem in the first place. That means exploring other means of dispute resolution. It also means trying to work out issues that arise during a lawsuit using negotiation rather than litigation. Every disagreement with one's adversary need not turn into a pre-trial motion or an angry letter. Generally the results that can be achieved by a little give-and-take are just as good as the results that can be achieved by bringing every problem that arises in a case to the attention of the judge.

I think sometimes we lawyers are afraid to be conscious of costs, and also afraid to explore alternative means of resolving disputes, not only to preserve a way of operating that is beneficial to ourselves, but also because we are afraid of being seen as less than the most zealous possible advocate of our clients' interests. We assume that clients are going to be most impressed with a scorched earth, aggressive litigation strategy. Many clients tell us that they want such an aggressive approach, and they want to give the other side no quarter. I believe, however, it is our job to remind clients of the costs of such a strategy, and also to advise them that such a strategy does not always lead to the best result. We can do this without losing sight of the objective of achieving the best possible result for the client, and without sacrificing any of the preparation that is necessary to prepare the most effective case for our clients.