A hot topic in the litigation field during these bad economic times is how to reduce litigation costs. Numerous articles and discussions have appeared about alternative billing or staffing arrangements that can save clients money, presumably by reducing the amount of time spent on activities that do not advance cases toward trial. I agree that billing by the hour sometimes creates perverse incentives for attorneys, just as it does in any profession that bills by the hour or by the procedure. I also agree that over-staffing and engaging in unnecessary work drives up legal bills. But I also think that discussions about litigating more efficiently sometimes miss the larger point.
The best way to reduce litigation costs is not to litigate. Because once parties have chosen or are forced to litigate, they have entered into the most expensive possible way to resolve a dispute. Moreover, costs are a double-edged sword in litigation. Parties should be conscious of the costs they are incurring in filing a motion or serving or responding to discovery, but they also can’t help but take into consideration that they are inflicting costs on the other side by engaging in various activities. Often these costs drive cases toward resolution. Therefore, the whole idea of “efficient litigation” may be something of an oxymoron.
The problems of conducting a lawsuit may be analogized to the problems of fighting a war. The nation does not want a general who needlessly wastes troops and equipment in fighting unnecessary battles. But at the same time we recognize that if we want to win the war, we sometimes have to throw our troops and equipment into the battle for the purpose of causing the other side to throw their troops and equipment into the battle. And if we really want to reduce the costs of war, the best way to do that is not to leave war-making decisions entirely to the generals. Because generals tend to think about solving problems by military means.
One of the most potentially wasteful litigation activities is discovery disputes, generally the least favorite type of dispute that judges have to decide. So the courts have been trying for years to develop methods of resolving discovery disputes without needless acrimony and massive expenditures of resources. First they tried imposing sanctions for discovery abuses, but this only seemed to increase the stakes of discovery battles. Then they tried imposing requirements for meeting and conferring in advance of filing discovery motions. This seems like the right way to go, but still in many cases, these meet and confer sessions have turned into just another adversarial stage of a lawsuit. In order to make the meet and confer process work, the parties are supposed to seize the opportunity to have a genuine give-and take about discovery and actually try to come to an agreement that satisfies both their needs without burdensome requests and responses and motions. To do that, however, they have to get out of the litigation mind-set and get into the negotiation mind-set. These are fundamentally different ways of trying to resolve a dispute. To reduce time and expense spent on solving a discovery dispute requires the parties to act a different way from the way they generally act in conducting litigation.
Parties can best control costs only by choosing a different process of dispute resolution than litigation, because litigation is fundamentally an adversarial process that is not necessarily dedicated to reducing the number of issues that are in dispute, but instead often provides incentives for the parties to create more issues to fight over. So the best way to control costs in litigation is not to litigate, just as the best way to control costs in warfare is to resolve disputes at the peace table instead of the battlefield.