December 28, 2018

Controlling litigation expense through "the way we win"

Posted in Commercial Litigation, Corporate Litigation by Ryan Milun |

I’ve been thinking about the book and movie “Ender’s Game” a lot lately.  For this post I am going to focus on the 2013 movie, so for all you book lovers, I apologize in advance.  For the uninitiated, the story takes place after the Earth has been attacked by (and defeated by) an alien lifeform called the Formix.  For most of the story we follow Ender Wiggin (Asa Butterfield) as he trains to become a great military tactician in the hope that he will be able to lead the armies of Earth to ultimate victory over the Formix.  One particular part of the movie sticks out to me as the most important.  At the end of the movie (spoiler alert), after Ender defeats the Formix and essentially unknowingly commits genocide, Ender becomes very upset.  Colonel Graff (Harrison Ford) in an attempt at consoling Ender, says “We won, that’s what matters.” But Ender responds: “No. The way we win matters.”   

This is a long-winded way of saying what I believe is absolutely true in litigation: the way we win matters.  Now, I am not referring to misrepresenting things to the Court or your adversary in order to get a result. Obviously doing that would not only be improper, but also unethical and could lead to suspension or disbarment. What I am referring to is litigating in what the Ethics Committee or Disciplinary Board would probably view as perfectly reasonable, although from a practical standpoint causes delays and unnecessary expense to all parties involved.  Let me give you an example.  If during litigation you have both documents and testimony establishing a particular fact for your case, is it then necessary to depose six other people on the same exact fact in order to really drive it home?  Or, as another example, in many cases I have received 70, 80, or even 90 interrogatories or document production requests – is that necessary? Especially if the facts in the case are essentially not in dispute or the issues in the litigation are not complex?  Wouldn’t it make more sense to try and establish facts not in dispute at the beginning of a case, maybe through agreement with your adversary? These litigation tactics affect the “way we win.”   

In Federal Court awhile back, there was a move to amend the Rules of Civil Procedure to address this very point and to determine whether discovery was reasonable given the specific details in the case.  In other words, in a complex litigation matter, extensive discovery might be necessary, but in a simple contract dispute very limited discovery is probably the best course.  Although changes have been made to the Federal Rules, in my experience, the practical effect on litigation tactics has been minimal and I believe it all comes down to a lawyer’s mindset.  Most of the time the lawyers (given the financial incentives) are more interested in conducting the battle as opposed to moving things towards a resolution, and this mindset is often hidden from a client.  For example, from a client’s perspective, if we are able to secure a $200,000 judgment or settlement and it costs $100,000 to get there, that may seem like a win; however, what if the client knew that you could have gotten the exact same result for a $50,000 outlay or perhaps even less?  Still a win?  On the flip side, what if the damages being sought are $500,000 and the lawyer is able to settle the case for $300,000 after spending $100,000 in attorneys’ fees?  Again, on paper, it’s a win, but what if the same result could have been achieved for far less expense?  

Far too often attorneys are litigating for the sake of litigating and while this generates fees and keeps the office lights on, it is not the right way of doing things.  Get to the finish line.  There will always be other cases.  Here are a few practical ideas for lawyers and clients to think about:  

  1. When drafting contracts, consider whether you can include an agreement as to the scope of discovery (limiting depositions, interrogatories and document requests) in the event of a dispute.
  2. Get your ego out of the equation and ask: Is early settlement possible?  A less-than-terrific settlement is often better than a drawn-out litigation “win.”
  3. If you really have to litigate, can you meet with the other side early on, and stipulate to as many facts and documents as possible? Narrow the issues.  It’s the professional thing to do. 
  4. Can a case be decided early, through agreed-upon motion practice, on a stipulated set of facts?

The “way we win” or get to the final result matters, and if attorneys (and clients!) took that lesson to heart, not only would clients benefit, but the legal profession would be a much better place.  

And maybe there would be fewer lawyer jokes.