“Cost to Defend Lawsuit” – A common question I receive at the beginning of a case. People want to know the possible cost to defend lawsuit; the potential total cost of the litigation, particularly when a person (or business) is being sued. This is understandable because when a person (or business) defends itself against a lawsuit, an attorney will work only on an hourly basis. This is different where a person (or business) is suing a party, ie., is a plaintiff, where an attorney may work on a contingency-fee basis or on an hourly-fee basis.
One concern by prospective clients often heard about lawyers is that they will not commit to firm predictions on fee and cost estimates and, instead, give vague and wide ranging possibilities. As discussed below, there is good reason for this.
The difficulty in providing a Cost to Defend Lawsuit — a precise estimate — is relatively simple. Unlike repairing an automobile or
installing a swimming pool in the back-yard, litigation is a form of warfare against trained and presumably effective opponents who have their own agenda and strategy. As one general wrote, “No plan survives contact with the enemy.” That can also pertain to litigation.
A defendant (i.e., the party being sued) has one and sometimes many adversaries seeking to jockey for a better position and to impose their will on the opposite side. For example, a deposition which should last a a few hours can be made to last all-day by an aggressive opponent or even by a co-defendant whose attorney is too detail oriented…and the costs necessarily exceed the budget.
Litigation is prone to surprises. A witness changes his testimony in a deposition. A new document is discovered which changes the landscape of the case. A party who was supposed to be nearly bankrupt suddenly finds substantial funding and can afford a scorched earth type of
litigation and insists upon taking a dozen depositions. All these things can and do happen.
Even outside the scope of the litigation, events can occur that alter the initial budgetary analysis.
A witness disappears or, even, dies. Documents are lost; documents are found. Or, suddenly the business being fought over has very limited value or shuts-down.
Yet, often a range of costs can be offered and ‘decision points’ can be created in which the litigation plan is altered predicated on a change in circumstances.
One thing that can never be given is a “guaranty” of results or an absolute precise estimate of fees.
Who you fight matters. If going against a well-funded opponent who has in-house counsel, you must assume a good deal more discovery than a small company already close to the economic edge.
Few individuals, as opponents, will freely spend the money in litigation that a company, which can deduct the cost, will. The litigation history of the opponent can also often be discovered and can give a good idea as to the likely reaction and allocation of resources to be made by the opposing counsel.
Most experienced counsel say that having a good and experienced opponent is always better in a case since money is not wasted in useless bickering and posturing; and the issues are quickly put on the table for analysis and possible resolution. However, even a good lawyer from certain jurisdictions (Southern California and New York are often cited) have a methodology that is usually extremely aggressive and expensive; and some lawyers are given “marching orders” by their own clients to spend a great deal of money to force the opponents to their knees.
The 19th Century poet — Samuel Taylor Coleridge — wrote a comment that can be applied to the peculiarities of budgeting for litigation, “No man does anything from a single motive.” And with multiple motivations and multiple parties, an estimate of legal costs can never be precise.
The way to create a budget is to do it in cooperation with the attorney. The attorney will never know the fact situation about the case as well as the client. And, the client can never know the legal system as well as the attorney. Working together, and understanding the limitations on any estimate, a reasonable budget can normally be created.
There was a scene in the 1957 Academy Award winning movie, The Bridge Over The River Kwai, where the Japanese commandant of a prisoner of war camp (Col. Saito, played by character actor, Sessue Hayakawa) said a very realistic statement to an officer of the British soldiers — after that officer tried to educate the Col. Saito about the rules for prisoners under the Geneva Convention.
Upon Col. Saito hearing the British officer tell Col. Saito what he was not supposed to do to prisoners of war under the Rules of the Geneva Convention, Col. Saito barked-back with:
“This is War — not a Game of Cricket!”
Same with Litigation . . . it is War, and rarely anything less.
If you have been sued, or, if you are considering litigation, give me a call and let’s brainstorm your situation. In circumstances where people owe you money (where you are suing), cases are often more a slam-dunk and less costly to get the results you are looking for than general litigation where you are the defendant. Either way, call me, John J. Hamilton, at (949) 552-1170 for a free Phone Consultation to kick the tires of your case.
I can help but only if you call 949-552-1170
Go ahead, find out if you have a case, fill in our CASE EVALUATION form and Mr. Hamilton will respond with answers you need.