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Examiner
  • Ken Garten: Discussing the costs of litigation

  • One of the most difficult tasks for a lawyer is advising a client regarding the cost and outcome of a civil lawsuit.



    There are many variables that can come into play.

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  • One of the most difficult tasks for a lawyer is advising a client regarding the cost and outcome of a civil lawsuit.
    There are many variables that can come into play.
    The truth is that only a small percentage of civil lawsuits filed actually go to trial. Many are resolved by an agreed upon settlement, without a trial.
    Settlement negotiations are, in a way, similar to the purchase of a house or a car. The party who is most desperate to buy or sell tends to be at a disadvantage in negotiations.
    “I just want a quick settlement” often is not the best approach to negotiating a favorable one.
    Another analogy is that the best approach for a nation to achieve its goals through diplomacy is to have a strong military.
    Hence, the most important factors in evaluating the cost and likely outcome of a civil lawsuit are the strength of each party’s case and the willingness of each to invest the resources to take it to trial.
    These can be difficult factors to evaluate at the outset of any lawsuit.
    One obvious factor is whether the client is the plaintiff who files the lawsuit or the defendant, someone who has been sued and comes to you with the lawsuit papers they have been served.
    The defendant certainly has less control over the process than the plaintiff.
    Another variable is whether the lawyer for the plaintiff is working on a contingency fee, where the lawyer receives a percentage of the recovery as his fee, or is being paid by the hour.  
    Hourly legal fees can range from $150 per hour on the very low end, to $300 per hour or even more, for attorney time.
    With an hourly attorney fee, as the case progresses, the time and expenses mount.
    A case often starts with a handful of pages of notes from the first meeting with a client, and can expand to multiple file boxes filled with documents after a year of motions, discovery, depositions, meetings, research, correspondence, hearings, and telephone time.
    This often creates an incentive to reach a settlement for those parties paying legal expenses by the hour.
    However, if the plaintiff’s attorney is working on a contingency fee, and the plaintiff is not paying out of pocket, then the plaintiff tends to have less economic pressure to settle.
    So when clients ask me to predict the course of a civil lawsuit, sometimes I tell them that a lawsuit can be like a football game.
    You put together a game plan.  
    You undertake to execute it.  
    Sometimes the calls go your way. Sometimes they don’t.    
    You react and adjust to what your opponent does.
    Page 2 of 2 - The side that works hardest usually comes out on top, but not always. Size, speed and talent are also factors in football. So are strong facts and a good case in a lawsuit.
    Outcomes can be difficult to predict with any certainty.
    The closest thing you can provide by way of a guarantee is that the process is likely to be tedious, stressful, expensive, and distracting.  
    So be prepared for that.
    Ken Garten is a Blue Springs attorney. Reach him at krgarten@yahoo.com
     

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