My business litigation clients hire me to win. Defining what is a win, then, is important. My definition of a win is obtaining the desired result – and doing it on budget. If I don’t believe I can do that, I decline representation.
This approach first requires my client and I to agree upon the desired result. But just as important is having a frank discussion about the estimated budget for the case, including the client’s ability and desire to fund a realistic budget.
In establishing a budget, there are a few things that should be emphasized.
- You do not have complete control over the timing and nature of the litigation. Litigation is adversarial by design. Your opponent, and also the court, can materially affect the nature of the case, and therefore the budget. Your desire to keep the case simple and expedite the trial date, may be effectively thwarted by your opponent’s desire to protract the case. If your opponent files dozens of motions, or takes many depositions, you will have no choice but to respond to the motions and attend the depositions. This will affect the budget. That said, careful consideration of your adversary’s expected approach to the case should be had from the outset.
- The single most important factor in determining the budget is not the potential length or complexity of the trial. Indeed, most cases never get tried. The most important factor is the length and complexity of discovery. Will there be significant expense incurred in producing documents? Will there be many depositions? Will expert witnesses by needed? Will there by travel expenses incurred?
- The time for discussion of the budget is ALWAYS. It should start at the outset of the representation and continue throughout the case as milestones occur, and as the parameters of the case change. If the client is surprised about costs incurred during the litigation, more often than not, this is a failing of the attorney. Communication, as always, is key.