I recently lived through a litigator and client’s bad dream—a case that settled on the eve (literally) of trial. As a litigator, it is difficult to be primed for battle only to have to pack up and go home, unable to test yourself in battle against a highly regarded opponent. The client, on the other hand, is unhappy that all the transaction costs were incurred before resolution could occur. As I reflected on this dissonance, I began reflecting on things that might have happened in the context of our case that could have altered the outcome. Like many cases, I am not sure that anything could have changed the outcome, but the reflection led me to a list of things judges might do differently.
For most companies, litigation is the law department’s single biggest line-item expense. For many individuals, litigation is just too expensive to pursue. The expense is ever-increasing as e-discovery becomes more and more costly. There is now an entire industry whose mission is to increase the cost of the discovery process while simultaneously touting their cost-saving attributes. Litigants, even sophisticated companies, often find themselves caught in tangled mess of barbed wire, caught amongst outrageous expense and discovery complexity, rules that were mostly drafted in an age before electronic information was commonplace and lawyers who seek to turn every misstep into a fight to the death or a sanctionable offense no matter how small the consequence the particular case.
The judiciary as a whole has failed to answer the clarion call presented by the expense of the system they oversee. Many judges, alone or with colleagues, have stepped up masterfully.
But too many judges—state and federal—have not. The wide differences between those who have intelligently and creatively addressed many of the problems only raises the risk of inconsistency born of forum selection and random assignments. This inconsistent application of broad rules written in other times makes prediction of outcomes on potential issues difficult, frequently forcing expensive capitulation to unreasonable demands as an alternative to an expensive, highly-briefed motion, a delayed decision and uncertain outcome.
With the caveat that I have never served as a judge nor clerked for one, I offer the following thoughts for consideration. The caveat is important, because I cannot know the full spectrum of issues judges must confront, the increasing challenge of limited and frequently declining resources and other considerations seen only from chambers. But the same limitations on my eyes are frequently the same on the eyes of inside counsel and other litigants. Perhaps there would be something gained on all fronts from a public discussion of the concerns the various constituencies have.
1. Accelerate the end. There is substantial empirical data that the cycle time of a case directly influences cost. The longer a case lasts, the more it costs. The Eastern District of Virginia has a rocket docket. Can’t more courts adopt fast tracks?
2. Require senior trial lawyer involvement. Experience counts for a lot, and experienced lawyers can frequently get to agreement when junior lawyers cannot. Senior lawyers more frequently avoid fights that are not truly necessary.
3. In business to business cases, get the businesspeople involved. Outside lawyers are frequently focused on process, and on getting more information before considering settlement. Businesspeople frequently don’t feel the same need. The people who actually own problems want the problems to go away sooner rather than later, and are more concerned about getting an acceptable outcome than the process of doing so.
4. Identify and decide key issues first. In many cases, there is one issue that is the impediment to resolution. Find out what it is and decide it.
5. Guard against too much process at the expense of practical outcomes. Lawyers gravitate toward process. They take refuge in it. Clients want results. Fast.
6. Standardize rules in ways that drive efficiency. For example, Judge William Alsup of the Northern District of California has a standing order regarding the numbering of exhibits in depositions that eliminates the need to renumber exhibits when complying with Rule 26(a)(3).
7. Limit discovery. Endless interrogatories, endless requests for documents and endless requests to admit are the byproduct of a lazy mind. When it can be done, impose a limit on discovery (especially written discovery) unless a party can make a compelling case that it needs more.
8. Master e-discovery cost drivers. It is impossible for every judge to be an expert in this area, but every judge must have a resource available to refer matters to who can address these issues.
9. Reduce the briefing. Does every discovery matter need to be fully briefed? On many issues, courts should allow a one-page letter. Or require a telephone call.
10. Decide quickly. On these one-page-letter or telephone-call disputes, fast decisions will save extraordinary amounts. The constant interruption of work creates a stop-and-start, herky-jerky approach to litigation. Every stop-and-start delays things and increases expense. Because judges have so many cases, reducing briefs and fast tracking these kinds of decisions may well reduce workload.
Lawyers tend to pursue discovery so we can “know” the story and eliminate all uncertainty about “the facts” of our cases. Or we want to see if we can get summary judgment before we consider settlement. Many companies now eschew these traditions, instead recognizing that because most cases settle, a willingness to accept greater uncertainty about the facts in exchange for earlier resolution is a positive trade-off. Because of this, the settlement option should be pursued as a first option and exhausted before resorted to the traditional and expensive practices of all-out discovery. Judges would be well-advised to make the parties exhaust the settlement option first.
There is no panacea for litigants, but judges need to be sensitive to their role not only as administrators of justice, but also as centerpiece participants in a system that is becoming prohibitively expensive. More discussion among the bench, litigants and litigators will hopefully yield some practices that will reduce the cost of participating in and resolving litigation.
Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and cope with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation.
Pat is the author of the book Alternative Fee Arrangements: Value Fees and the Changing Legal Market. He also blogs at In Search Of Perfect Client Service.
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