Litigation Cost Saving Tips

According to Best Best & Krieger Partner Lauren Strickroth, "The best strategy to minimize the cost of litigation is to avoid it altogether."

The general public certainly doesn't grasp this reality, which is why on Tuesday at our monthly family law mediator study group lunch meeting, the consensus was that the vast majority of the potential clients calling each and every one of us get referred out because they aren't interested in avoiding litigation.

There are reasons why families, children and our society are so messed up. Accepting personal responsibility for the things you have said and done or not said and not done might be a start; rather than finger pointing. People love blaming "the system", "the divorce industry", their spouse, opposing counsel, their attorney, the judge, everyone except for themselves. "Cooperation or Combat? The Choice Is Yours!" How about taking responsibility for your choice and the ensuing consequences?

Mind you, mediators and collaborative practitioners refer to litigators, but the likelihood that litigators will turn away cases in which litigation isn't necessary or advise clients to avoid litigation altogether is slim to none. This unfortunate reality was set forth very clearly in my 7-part series of articles titled "How Family Law Attorneys Tend to Think", which can be found at the following links: Part I; Part II; Part III; Part IV; Part V; Part VI; and Part VII.

Ms. Strickroth continues, "Many businesses, trustees or individuals put off hiring a lawyer until a lawsuit is filed. At this stage, potentially preventable damage is already done. Engaging a lawyer who is invested in your success from the outset is the best and most cost effective way to reduce litigation costs."

"Don’t consult with or retain a litigator, unless they also happen to be a well-trained facilitative and/or transformative mediator and/or a collaborative divorce practitioner.

Otherwise, it’s like going to a surgeon and expecting them not to recommend, or at least be biased toward surgery. You can only give what you have and teach what you know."

According to Strickroth, "If you do find yourself in the expensive arena of litigation, here are several ways to reduce costs without sacrificing quality or compromising results.

Involve Counsel Early. If it is too late to avoid litigation, the earlier you involve an attorney, the better. Experienced counsel can streamline the path, and work with you to mitigate damages, organize evidence, limit discovery expense, or steer the matter to early settlement."

As set forth above, this greatly depends upon the particular lawyer involved and was also addressed in my article titled "Important Distinctions Between Litigation and Mediation." The following is a quote from that article, "In any event, I wanted to share a common theme from the conference and describe how that theme plays out differently depending upon the approach taken. Steven Peskind was the first to introduce the theme when he said, 'Too few lawyers settle cases early and too many lawyers settle cases too late. Work harder to settle cases early. Settlements are better for the clients.'”

Strickroth goes on to say, "Mediation. Studies demonstrate that early mediation significantly reduces litigation costs. An early mediation with limited and focused discovery can avoid the significant costs of depositions, motion practice, retention of experts and trial preparation."

No surprises here! "Mediation is essentially conflict intervention and well-qualified mediators have the skills to de-escalate the level of conflict and facilitate settlement of the dispute. Mediation is quick, private, solution-focused, and inexpensive compared to a lawsuit," explains Pasadena based Baer."

Ms. Strickroth then says, "Limit Discovery. Written discovery, depositions and experts can be some of the most costly aspects of litigation. Limiting depositions and seeking an agreement with opposing counsel regarding the scope of discovery can drastically reduce costs."

I highly recommend that everyone read "JUST DISCOVERY - Properly focused discovery requests and responses and good-faith use of the meet-and-confer process can help save attorneys time and clients money" that is located on Pages 14-18 of the November 2015 edition of Los Angeles Lawyer.

I can't even take an excerpt from the article because the entire article shows just how ridiculous litigators can be, the juvenile games they play in the name of "litigation tactics", and their inability to negotiate, among other things.

The frustration of dealing with such attorneys caused me to leave litigation all together. I have better things to do with my life than play stupid games with "colleagues" who aren't client centered.

The recommendations suggested in this article are based upon the incorrect assumption that lawyers are able to communicate.

The ability to advocate and the ability to communicate are two very different things. Proper communication requires active listening, something that requires emotional intelligence, which lawyers tend to lack.

Oh, the authors recommend the use of "informal dispute resolution," which sounds like mediation to me.

They also want lawyers to "be reasonable and exercise restraint." Do they really expect such a thing from lawyers?

To add insult to injury, they suggest that lawyers act in good faith. Well seasoned attorneys can attest to the fact that if they sent a letter to confirm a verbal agreement to opposing counsel when they began practicing, the recipient would be insulted. Now, confirming letters are a necessary practice in order to document agreements reached. Furthermore, don't for one moment think that the lawyer receiving the confirming letter agrees with the terms set forth in that letter. Things are very different than they were in days gone by. This was explained very clearly in my article titled "The Importance of Empathy in the Legal Profession, Part II of a Series."

The article also discusses the fact that that the law and motion practice tends to cause people to become entrenched in their positions and that "opening the lines of communication with opposing counsel early is a basic but critical first step."

In my humble opinion, many concepts in this article apply across the board and are not limited to discovery issues.

Ms. Strickroth then explains "Decision Tree Analysis. Litigation should be guided by understanding and evaluating the best and worst possible outcomes, and the likelihood of each. This structured analysis allows clients to make better decisions in the face of uncertainty and complexity."

Assessing the BATNA (Best Alternative To A Negotiated Agreement), WATNA (Worst Alternative To A Negotiated Agreement)and MLATNA (Most Likely Alternative To A Negotiated Agreement)is something commonly done in mediation.

Strickroth goes not to discuss the importance of "A Professional Relationship with Opposing Counsel. A strained or contentious relationship between attorneys on both sides almost always increases costs. Although it is not always possible, reasonable conversation and professionalism with the opposing party’s counsel can streamline the litigation process."

However, this is far easier said that done for various reasons.

First, consider what David M. Balabanian said in his article titled "Divisa in Partes Tres" that was published in the October 3, 2016 edition of the Los Angeles Daily Journal:

"Despite its importance, remarkably little is said about the role that trust (or distrust) between lawyers plays in the handling and disposition of legal matters...

Being trusted by one's adversaries can significantly reduce the cost and burdens of both litigation and transactions without diminishing -- indeed often improving-- the chances of success.

Much of the cost of litigation results from suspicion-driven skirmishes over issues of questionable materiality. Many of these might have been avoided had the opposing forces been able to trust one another. Further cost and aggravation come from having to document ever detail of every conversation between counsel and then fighting over the meaning of the documents."

Second, clients tend to think quite the opposite. They tend to feel uneasy if their attorneys like and respect each other. They believe it means the following: "You scratch my back and I'll scratch yours. Fig. You do a favor for me and I'll do a favor for you." In other words, they believe that one of the lawyers will throw their client under the bus in one case, so that the other will reciprocate on the next case they have together.

Strickroth then advises people to "Focus on the Key Issues. Litigation often involves a main claim with many small side claims. Although it is important to be cognizant and responsive to all claims, concentrating on the main issue that is the crux of the dispute is an effective way focus the litigation without getting distracted by side issues."

David M. Balabanian weighed in on that issue in his article titled "Client Care 2" that was published in the August 15, 2016 edition of the Los Angeles Daily Journal. In that article, he stated in pertinent part as follows:

"What does the client want?

Lawyers often complain about the difficulty of getting clients to focus on facts that have legal significance rather than on events or circumstances that are legally irrelevant or have no legal solution.

It may, however, be useful to consider whether the things the client is so keen to talk about are, in fact, the things she or he most cares about - whether or not they have legal significance. Indeed, it is conceivable that addressing the clients' declared concerns might prove equally or even more satisfying to them than vindicating legal rights of which they were previously unaware.

Identifying those concerns may also suggest non-economic accommodations that could ultimately play a useful role in resolving the matter. It is surprising how many disputes that appear to be about nothing but money are also about something else....

Your own Attitude

Although your long-term interests directly correspond to those of your client, there are occasions when they may seem to diverge as, for example, when the client settles a case you were about to try.

It is, no doubt, personally disappointing when this happens and you find yourself shredding files instead of witnesses. But, what is good for your client is, ultimately, good for you. This reality you should accept and, by your comments and actions, make clear to the client that you do."

Ms. Strickroth concludes the article as follows:

"Recognize Emotional Decisions. Litigation is straining and emotional. Often litigants are angry, sad or frustrated. When emotions are high, litigation escalates and people tend to make decisions based on emotion rather than ration. Diffusing the emotion on both sides, and viewing decisions from a business perspective instead of an emotional perspective, often results in a better and more cost effective outcome."

Regardless of the level of conflict and distrust that exists before engaging in the adversarial process, that process is only going to make things worse in that regard.

"Hostage negotiators use mediation techniques when negotiating with hostage takers. If hostage negotiators conducted themselves in an adversarial manner, the hostage takers would almost certainly kill the hostages. By the way, the same is true of traditional lawyering versus mediation and collaboration. Traditional lawyering is adversarial and therefore tends to exacerbate conflict and increase distrust in order to obtain a result."

By the way and for what it's worth, I am not at all surprised that this article was written by a Partner at Best Best & Krieger.

On April 3, 2012, I received the following testimonial which can be found on my LinkedIn profile from a different Partner at Best Best & Krieger:

"I recommended Mark for an associate of mine, who was going through a divorce. The associate reported back to me that he was very pleased with Mark's approach to the resolution of the case. Based on this, as well as my many discussions with Mark about his unique approach to conflict resolution, I would highly recommend him for difficult family law matters." - Jeff Ballinger, Partner at Best Best & Krieger LLP

The associate referenced in Jeff Ballinger's testimonial was an associate of his at Best Best & Krieger, and he gave me the following testimonial:

“Mark guided me through the divorce process from beginning to end using an out-of-court process called collaborative law. As an attorney myself, I was unsure about the collaborative process, which tends to be less about the law and more about the parties’ interests. I recommend Mark’s services to anyone looking to complete a contested divorce on amicable terms without the pain and relational damage inherent in an adversarial process.“ — Jonathan Lamb, Attorney

Might I suggest that people try mediation or collaborative law before running to litigators?