10 Ways To Minimize Litigation Expenses Immediately
on April 28, 2016 posted in Business Litigation
Litigation certainly is costly, and businesses are continually surprised by increased expenses needed to fight an adversary in court. Inhouse counsel departments are always under pressure to cut costs and crave creative ways in which to control litigation spend.
Here are 10 ways that you can minimize your litigation costs almost immediately:
1. Seriously consider whether you even need an expert witness. Sure, there are cases in which an expert witness must be retained. Malpractice and construction accidents are examples. There are certainly many others. But in the last few decades, a cottage industry of various expert witness types has grown exponentially. And they aren't cheap. But there is some overuse of and overdependence on experts, and there are cases where, although the kneejerk reaction might be to retain an expert, one is really not needed. Carefully review the claims, defenses, and what type of proof is needed to make your case, and then determine if an expert is truly required.
2. Ask for a litigation plan, strategy or road map. Together with a litigation budget, counsel should provide a blue print on the strengths/weaknesses of the case, short term and long term objectives, and overall strategy. Something that tells us where we want to go, and how we get there. It lays out the various causes of action or defenses, what is needed to prove them, and gives us an idea of potential costs.
3. Don't depose everyone and their mother. Many times there is a kneejerk reaction to depose everyone named in interrogatory answers or ever mentioned by anyone in the case. Depositions can be very expensive. There may be no need to depose some of these people. Paper discovery should be closely examined to determine the role and importance of anyone who counsel suggests should be deposed. Your outside counsel should explain why a particular person should be deposed, how long it might take, the potential costs involved, and how it would help the case. Using sharp, laser-focused and targeted discovery requests may work just as well and be much less costly.
4. Motions, Motions, Motions, ....and more Motions. We've all seen it. That case that seems to linger on forever because a multitude of motions have been filed or are pending for months on end. Especially if these are discovery motions, a lot of time, money and resources have been wasted. You should implement a rule that your outside counsel must consult you first before filing any motions and provide a reasonable, concise explanation as to why the motion is needed, the cost involved, and how it will help the case.
5. Insist that your outside counsel use formed out motions. Did I mention motions? In the event motions necessary - and many times they are - your outside counsel should be able to package a motion together quickly and efficiently using a data bank of formed out or template motions. No need to reinvent the wheel here. Discovery motions are a perfect example. These are so frequent that we have a formed out template so a secretary can draft one lickety split. Not much attorney time is needed to review or edit it. And a discovery motion should never be 20 pages long. That is simply absurd and wasteful.
6. Staffing should be lean and mean. Only one attorney should attend a court hearing or deposition (with minor exceptions). I cannot remember the last time I attended court or a deposition with one of my associate lawyers. In most cases, it is unnecessary. Unless, of course, you want the proverbial “show of force,” and are willing to pay for it.
7. Ask for a rate discount. Request a discount on hourly rates, especially if you are giving the law firm a continuous, steady flow of work. Many lawyers will oblige. Those who don't you should jettison. Also ask for a discount on an outstanding bill if you pay it quickly. It's quite reasonable for a law firm to take a “haircut” in exchange for getting paid quicker.
8. Don't nickel and dime me. No one likes to be nickeled and dimed. It makes you feel unappreciated and not part of the “family.” Refuse to pay for charges like faxes, copying, phone charges, or research charges (as opposed to lawyer “time” spent researching). I can't remember the last time I charged a client for copying, if ever.
9. Require Status Reports. Demand a status report on the case monthly or quarterly, with a status on billing and expectation of future tasks and costs. For example, is there a spate of upcoming depositions that will break the bank? (see # 3 above). Is a summary judgment motion looming in the not-so-distant future? You want to be forewarned about what’s coming down the pike.
10. Stay engaged and be a true partner with outside counsel. Outside counsel wants your feedback and approval, and they want to be a partner with you. Of course, we understand you have many other (important) things on your plate to deal with, like running a business or a department. But if you dig your head in the sand and ignore a case, you may find yourself on the receiving end of a gargantuan legal bill at month’s end. The more communication, the better, and the less a chance of miscommunication or an unpleasant surprise at the end of the month.
Implementing many of these rules could result in immediate savings in your litigation spend. With litigation expenses spiraling out of control, it pays to put a little bit of thought into it in order to minimize costs so that your budget isn’t busted.
Jim Hunt, an attorney and partner at Tenaglia & Hunt, P.A., can be reached at 201-820-6003.
Tenaglia & Hunt, P.A. provides business clients with experienced legal representation. We handle many types of business disputes on behalf of corporate clients, including Fortune 500 Corporations and SMBs throughout New York, New Jersey, and nationally. We take an aggressive but professional approach and always seek creative ways to help our clients. To schedule a free consultation and learn how we can help your business, call us at (201) 820-6001 or (212) 692-0200.