Strategies for avoiding unnecessary litigation expenses

published in McAfee & Taft tIPsheet | February 1, 2017

By Jessica John Bowman and Spencer Smith

Litigation is expensive, and concerns about the costs associated with litigation can deter both plaintiffs and defendants from vigorously pursuing their claims and defenses in court — even when those claims and defenses have strong merit.  Although there is no way to completely control the cost of a lawsuit, there are steps you can take to avoid unnecessary expenses and ensure that your case fits within your budget.

At the outset of any legal dispute, provide your attorney with an overview of the key facts, witnesses and documents.  Although your attorney will be able to provide you with advice as to how the law will apply to a particular set of facts, you are in the driver’s seat when it comes to helping your attorney understand the facts of your case.  Before the initial meeting between the client and its attorney, the client will often provide only a brief summary of the relevant facts, leaving it to the attorney to request further information, such as the names of witnesses and the location of the documents relevant to the dispute.  You can make the most of your preliminary meetings with your attorney by providing a detailed overview of the facts that gave rise to the litigation, the names of those who have the most knowledge of those facts, and copies of any documents that you believe are key to your case.  This will give your attorney a strong early understanding of your case, and will reduce the costs associated with the interviews and conferences between attorneys and clients necessary in the early stages of litigation.

Discuss your litigation budget with your attorney.  Too often, litigants do not understand the costs of litigation until they’ve already expended substantial resources in connection with a dispute.  By having an early discussion with your attorney about your budget, your attorney will be better able to set a litigation strategy that is in line with your overall budgetary needs.  In addition, your attorney can provide you with an estimate of the percentage of your budget that will be expended in each stage of the litigation, which will allow you to make informed decisions about settlement as the case moves forward.

Think about the results you can live with — not just what a “win” looks like. At the outset of litigation, clients will often discuss with their attorneys what they consider to be a “win” — the ultimate result that would make them satisfied with the litigation. But every win comes with a cost, and it makes little sense to spend $150,000 in attorney’s fees and costs to obtain a $300,000 verdict if you can settle for $150,000 early on in the case.  When you have your initial meeting with your attorney, be sure to discuss the range of outcomes that you can live with, taking into account the costs necessary to obtain the outcomes within that range. By doing so, you will be better able to assess the value of an early settlement offer in the context of your overall budget, and may find yourself walking away from litigation earlier (and happier) than you would have otherwise.

Set regular meetings with your attorney.  Throughout any litigation, you will remain a key source of information for your attorney.  But the information in your possession is only valuable if it is provided to your attorney in a timely manner.  Set regular meetings with your attorney to discuss the facts that have developed during the course of your case, and to address any questions and concerns that have arisen during the course of the litigation.  Where possible, keep a list of any questions and concerns and bring these up at your regularly set meetings. Although you should never hesitate to contact your attorney about a pressing concern, addressing the majority of your concerns during a regularly set meeting — rather than through the less-efficient (and more expensive) means of a series of emails and phone calls — can often result in significant cost savings.

Although you can’t completely control the cost of litigation, you can take steps to build a litigation strategy that fits within your budget and eliminates unnecessary expenses. Regardless of whether you are a plaintiff or a defendant, take time at the outset of your case — or, preferably, before a dispute proceeds to litigation — to discuss these and other measures that will allow you to proceed in an efficient and cost-effective manner.