Every prospective litigation client needs to know the three tolls
1 1. Lawyer’s Time is (Your) Money. When we talk about the cost of litigation, we usually think first of a lawyer’s time and expenses. These can be overwhelming (and some lawyers don’t help by brutally overcharging for their time, and surcharging (i.e., adding a percentage on top of) expenses). With constant communications with clients, witnesses, and opposing counsel, researching legal issues that crop up and writing briefs to persuade courts on issues, these costs mount up fast. But while it is often the most obvious, this toll is often the least expensive.
a. Reducing the Toll.
i. Trust Your Lawyer. When good lawyers ask for everything you have regarding the case, it isn’t because we want to want to enrich ourselves reading old invoices (and we assign these to paralegals, anyway). We want to know what you know, so that we can best represent you. That includes the stuff that may not look good. First, it may not be so bad, but second, if it is bad, there is something that’s even worse–having your lawyer find out about it too late to do anything about it. It’s the landmines we lawyers don’t know about `that keep us up at night. Lawyers are far more effective when we have a map to the mine field.
ii. Someone (it doesn’t have to be you, see #2, below) needs to go over the invoice that you receive. Were you billed an hour for a one-line email, or a 30 second phone call? Mistakes happen.
iii. Understand that research can be quite time-consuming, so having a lawyer with experience in the area of law in question gives you a head start. Your friend’s cousin’s former in-law may not be a good choice if they don’t know the particular area of law.
iv. The only thing more expensive than the discovery process done right, is when it is done incorrectly. Experience and foresight count.
v. Talking to your lawyer early about goals is important.
2 2. Your Time is (Your) Money. In business, time is money. If you are running a business, every time you talk with your lawyer, you have another time-suck of your precious time. A lawyer has to respect your time as well, because you have many other competing interests for your time. If a lawsuit is occupying your time, you are not working with your sales staff to increase sales, you aren’t working with your manufacturing professionals to increase quality or reliability, or decrease costs; you aren’t attending to the multitudinous other demands your business requires. This toll is usually paid for by being at the office both earlier and later than normal–meaning your family and friends are also paying the toll.
a. Reducing the Toll:
i. Budget Your Time. Budget your time the way your business budgets everything else valuable. If possible, have someone you trust be the point-person to handle the hard work of doing the time-consuming stuff with your lawyer. If you need to talk with us, plan an end time; most meetings lose their productivity after 45 minutes or an hour. Focus on the big picture–your business needs you.
ii. When you have to be involved, block out enough time and focus on the task at hand during that time. Once that block of time is done, have your point-person finish matters off, or schedule another block of time. Go back to doing what you need to do for your business.
3 3. The Biggest Toll. The biggest toll is the one most often overlooked–the toll to your own thoughts and well-being. It’s 3 a.m., and you are wondering–
What if . . .
· . . . your best witness, your IT guy, messes up?
· . . . the other side lies about what happened?
· . . . the judge gets mad at your lawyer?
· . . . the bailiff is the bully you punched in elementary school?
These can go on forever. You become distracted at both home and work, unable to concentrate, and have a hard time sleeping through the night. These issues are real and costly.
a. Reducing the Toll. Resist letting the case control your bandwidth. Letting it consume you is as bad for your business as whatever gave rise to the lawsuit. If you need to, compile a list of questions that are bothering you and share it with your lawyer. Talk with someone protected by a privilege, like your lawyer, your spouse, your priest, your doctor (you are trying to reduce worries, so try to limit talking to someone who could be called to testify). If you wake up worrying at night, set a timer–10, 15, 20 minutes. Worry away until the timer goes off, and then resolve to go back to bed. Try to look at the situation from an outsider’s point of view; someday, this will be in your distant past, the same way many others of life’s challenges have come–and gone. You’ll get through it, win, lose, or draw.
We can’t eliminate the tolls of litigation, but we can try to keep them down. Good communication is cheaper and better than the alternatives.