Whether you like it or not, the legal services market is evolving quickly. Technology continues to spawn new platforms for marketing and delivering expertise. Firms are exploring deeper specialization and international growth. But, perhaps most importantly, clients are voicing greater cost-sensitivity. The economic meltdown of 2008, the democratization of legal information, and swelling competition within the legal services market have made clients increasingly eager to understand, and indeed actively question, the value of the services they receive. The bottom line: well, the bottom line; more than ever, clients want more for less. In order to remain competitive, if not relevant, lawyers need to deliver simpler, faster, and cheaper service.

This pressure is particularly acute for litigators. Litigation is, by definition, an adversarial process, one that naturally tempts parties to abandon reason for retribution. Clients also usually want quick results, notwithstanding (or, in some cases, precisely because of) litigation’s attendant procedural gridlock. Not exactly an easy starting point. Even worse, assuming both expectations can be managed, there’s still the Gordian knot of costs, an issue often just as vexing as the underlying dispute.  

So how can litigators protect their clients’ objectives and budgets? The long-term solution will, by most accounts, involve some combination of regulatory change, systemic reform, and overdue innovation, some watershed that provides lawyers with new avenues for offering more cost-effective litigation support. Until then, we can ease out clients’ pecuniary pain by working strategically and efficiency. Lady Justice’s robe may be Gucci and not Gap, but make no mistake – our choices are dressing her.   

Here are 10 simple ways that we can help manage our clients’ ligation costs:

1. Counsel proactive, not reactive, thinking. How better to avoid the expense of litigation than to avoid litigation altogether? From a legal perspective, our clients’ best investments are proactive reviews of any significant business practice, contract, policy, or decision that might potentially trigger litigation. Far from a voluntary expense, these are initiatives advancing risk management and long-term cost-savings. By ensuring, for example, that a key business practice is beyond a regulator’s reproach, that contracts are clear and enforceable, or that important decisions are immunized from liability, we can save clients big headaches and big bills.

2. Thoroughly investigate and forecast the mandate. Clients should know upfront what litigation will entail and cost. To this end, any case should begin with counsel thoroughly investigating the relevant facts, including reviewing all key documents, interviewing any potential witnesses at trial, and searching for any additional information online. In some cases, this may also involve requesting to inspect documents and demanding particulars.  Only after this investigation is complete can counsel then understand the competing legal theories on which the dispute will turn and, accordingly, how to draft complete, persuasive pleadings. Likewise, only after digesting the relevant factual matrix can counsel reasonably predict the litigation’s procedural scope and, more importantly, the resulting client expense.  This step may involve a significant cost, and maybe even a hard sell to clients, but it’s a cost worth incurring. How else can clients exercise an early, informed choice about the course ahead and avoid what might otherwise be a massive, unanticipated expense?

3. Explore early settlement. For any number of reasons, the best course ahead may be settlement: the difficultly in proving a claim or mounting a defence; the expense, time, and uncertainty involved in seeing the matter through trial; the business or emotional cost involved in continued litigation; or even the potential precedential effect of a trial judge’s decision. In such cases, an early settlement might save the client not only costs but possibly much more.

4. Alternative fee arrangements. This topic deserves its own article, but my point is simple: we can save our clients money and actually build better client relationships by charging for value not hours. Does everything you do on a file generate client value? If not, perhaps it’s time to scrap the rack rate. You’ll not only save clients’ money but build their trust.

5. Leverage the client’s resources. Clients can often play a helpful, cost-cutting role in litigation. In several recent matters, for instance, I had clients prepare detailed chronologies attaching all relevant documents, something that allowed me to identify the issues immediately and save me hours putting the story together myself. I also recently had a number of clients assemble their affidavit of documents, some involving thousands of records, saving tens of hours of work. Find ways to have clients help themselves.

6. Staff appropriately. At all turns, the file should be carried forward through the most cost-effective staffing possible. This usually involves cost-appropriate roles being played by partners, associates, and students. However, other cost-cutting middle men can also service clients well, such as those who scan and code documents, or handle e-discovery.

7. Use pre-trial motions and procedure wisely. Some pre-trial motions can end, or at least narrow, the scope of litigation, thereby saving cost. Others simply delay the inevitable or, worse, give the other side an opportunity to improve its pleading. Choose wisely.

8. Explore mediation before discovery. Some document heavy cases are best managed by mediating before discovery. A settlement before discoveries will obviously avoid one of the biggest expenses in litigation. Even in the absence of a settlement, the parties will have often narrowed the issues moving forward, again saving cost. 

9. Use Rule 49. In the event you’ve missed the off-ramp to settlement and are barreling towards trial, protect your clients’ cost position with a formal offer to settle. In fact, given the potential cost consequences it raises, a well-pitched offer may actually accomplish what previous settlement discussions could not.

10. Be civil. Lastly, decorum counts. Incivility produces tit-for-tat correspondence, unnecessary disputes and, ultimately, belabored procedure. Litigation is complicated and expensive as is. As a matter of professional obligation, we should ensure that we’re not adding to that cost in order to preserve our own egos.

This article was originally written and published in October 2013.

About the Author

Trevor Guy is Counsel with the Legal Services Branch servicing the Ministry of Citizenship, Immigration and International Trade.

Any opinions expressed herein are solely those of the author and do not necessarily reflect those of the Ministry of Citizenship, Immigration and International Trade.