Private litigators must always strive to be efficient — EVERY client is “cost-conscious” — but we only serve our clients by, every day, FIRST figuring out what is the absolute best job we can do, and THEN analyzing all costs of a litigation to use our judgment to know what to advise.
Our firm recently engaged an expert on a foreign area of law for a messy, high-value dispute we’re handling. We’re both prosecuting claims and defending against counterclaims, as is often the case when representing a business plaintiff, with litigations stretching from downtown Brooklyn to Singapore, on multiple continents and islands. There is simply a tremendous amount of money and other interests at stake. Despite the substantial size of the claims, in discussions over the hourly rate the expert would charge, he stated an obvious point worth repeating: “Every single client anywhere in the world I have ever had in any case over 30 years has been cost-conscious.”
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It can be a $6,000 dispute in Staten Island civil court, or a $600 million private equity partnership meltdown in a Paris arbitration. All clients want you to be efficient with their money, their time, and their patience. As I wrote last week, you can use invoices to reassure them they’re getting value. But they want efficiency, whoever they are.
But You Need to Win
However, any client with sense did not hire you simply to be cost-efficient. They hired you to win, whatever that means to a given client in a given matter (more on defining and focusing on winning in a future column). The challenge is balancing your client’s understandable desire to be cost-conscious with your professional, ethical, frequently contractual, and I believe moral obligation to serve them by doing all you can to win for them.
The Rule: First Come Up With The Winning Plan, Then Analyze Cost, Every Day
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I have a straightforward rule of discipline that litigators need to follow in any case with paying clients (and in a subsequent column I will share our firm’s “Looney Tunes” rule – I’m serious – which helps us complete the first step of the following two-step approach). Every time you work on the client’s matter, address two issues in the same order: consider first what is the best course for your client, without regard for fees and costs, and then think about the costs of the litigation. And I mean every time you work on the client’s matter, and – very importantly – in this order.
If you do this – at first forgetting about cost – you will free up your creativity and imagination to do what your client hired you to do: win. You will consider any options – what in the ideal world you would like to research, what in the best-case scenario you would investigate, what applications to make to the court, what other parties to add, whether even to sue or settle in the first place – without worrying, at first, whether what you want to do is too expensive, burdensome, or time-consuming. Do this every day.
But then any lawyer (not just the one with the client relationship) needs, daily, to apply this cost consideration. This forces any lawyer representing a client to do another thing our clients hired us to do – exercise judgment – and reminds us to refocus on the client’s goals, to know truly what winning is for the client.
You Cannot Advocate a Plan to Win Without Considering Cost
Inexperienced attorneys tend to do one or the other of these, but not both, or try to do both at the same time. First, be creative. Forget about how long or expensive it will be to do something. Just figure out how you can meet all tactical goals. But, then, remember you have someone paying you for this. It’s not simply what is fun for you, or what a judge will call winning. Remember that “winning” on a summary judgment motion that costs the client $150,000 in a dispute where “only” $200,000 is at issue does not sound like winning to most clients. And I do not know how you allow yourself truly to be creative if every time you consider an option you simultaneously are thinking about how expensive the option is; do this in order.
If you first know what winning is, and have freed up your creativity to determine the best course, then when you next apply consideration of cost in terms of money and time and agita, you will come up with the proper course to recommend to the client.
John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].