An important matter that should be considered by every potential
litigant is the likely transactional cost of pursuing, or defending, a
case. This should be addressed and discussed at the very outset of
any matter because the foreseeable transactional costs, including
attorneys’ fees, can be the critical factor in analyzing how best to
approach a lawsuit or a potential lawsuit.
Even cases that seem at the outset to be matters of principle
usually end up being analyzed largely as matters of principal. It
is, therefore, imperative that an initial frank discussion take place
concerning the number of hours that may be expected to be spent
on a case, the billing rates of the lawyers and paralegals who will
be working on the matter, and the out-of-pocket expenses, such
as expert witness fees and suit related costs, which will have to be
incurred. While accurate predictions of future billable hours are
almost impossible to make, clients can be given a pretty clear sense
of the minimum fees and expenses to be expected and also can be
given a sense of the range above that minimum to which the fees
and expenses might run.
The process required to make a reasoned estimate of fees and
expenses for a client provides benefits beyond the estimate
itself. The better job a lawyer and a client do at the beginning in
identifying the factual and evidentiary issues, the problems of proof
and defense, and the legal issues applicable to the facts, the better
job they will do in assessing probable outcomes and costs. They
will be more able to plan a course of action that makes sense from
both a practical perspective and a legal perspective, including early
consideration, if appropriate, of alternative approaches such as
mediation, arbitration or negotiation.
While this may all sound rather elementary, it does not always
play out that way in the real world. People usually do not come to
lawyers to discuss litigation unless things have really broken down
or they have already been served with a summons and a complaint.
They are often angry and their competitive juices are flowing. They
want a zealous lawyer who will be a warrior on their behalf. They
want the lawyer to understand the strengths of their side of the case
and the weaknesses of the opponent’s position.
These feelings and expectations of clients who are faced with
litigation are all totally appropriate. As lawyers it is our goal and
duty to be zealous on our client’s behalf and both to understand and
advocate the strengths of their cases and to discover and expose
the weaknesses of their opponent’s cases. We should also recognize
how important the case is to our clients and how much they want
and need to prevail.
On the other hand, we cannot ignore the fact that our clients
are entitled to sound legal analysis and to a frank appraisal of
their case so they can make reasoned judgments on how best to
proceed. We would do our clients a disservice if we were to fail to
provide them with an objective assessment of their case, including
our estimate of the probable transactional costs of pursuing their
claims or defenses. This objectivity should not be considered a
lack of zealousness and ought not to be seen as such. Rather it
is something we hope our clients will appreciate when all is said
and done and something that spares them unpleasant financial
surprises or unexpected outcomes during the litigation process.