I’m going to talk about three tips that will help a client (that is, you) work with a lawyer more efficiently and more effectively.  The discussion will last about an hour, but the three keys will help save money and contribute to a more successful relationship with your lawyer.

If you’re interested in attending, you can register here.  Hope to see you there.

Negotiating the agreement early in the relationship, when each party is anxious to do business with the other, carries both risks and benefits.  One obvious benefit is that, during the honeymoon stage, neither party believes that the relationship will later sour, much less end in the courtroom — as a result, the negotiation of limits on future litigation is much easier than hammering the same agreements out between opposing counsel after the suit’s been filed.  On the other hand, that same honeymoon stage feeling can cause a party to give away more than is prudent to get the deal done, perhaps negotiating away the one unforeseen advantage it may have when the process server comes knocking.  As we trial lawyers are fond of saying (at least I am), you can plan for everything but what actually happens.

While the litigation prenup is based on a great theory — that everyone wants efficient litigation — it has its drawbacks, and should be entered into carefully, if at all.  Many of the same benefits can be later realized by hiring reasonable counsel (as I’ve previously written about) without the risk of dealing away advantage. 

Handshake courtesy AndyRob’s flickr gallery via this creative commons license.

It’s not unusual for clients to have unreasonable expectations, and for lawyers to do too little to correct the belief.  In Shadley, we can’t tell whether it was the client that wanted the damaged piano and her daughter’s education paid for, along with repainting a variety of rooms in the broken home, or whether it was the lawyer who encouraged the claims.  In the end, I guess it doesn’t really matter.  We just know that it didn’t turn out well because expectations weren’t adjusted.

It’s the responsibility of both lawyers and clients to work together to set reasonable expectations about the outcome of a dispute.  Clients come to lawyers to benefit from our experience and training — let’s face it, pretty much anyone can describe a dispute in writing and file it with the court.  That’s hows small claims court functions. 

Clients need to remember that part of what they pay for is our role as counsel:  our detachment from the emotion of the dispute and our ability to dispassionately weigh the evidence and arguments on both sides.  Sure, the advocacy part of the relationship is a big one, but that’s based upon a rational judgment as to what arguments and evidence are most convincing to someone who doesn’t care who wins or loses. 

Lawyers, for their part, should immediately share their opinions about expectations, and begin to educate clients on the possible outcomes of the dispute.  The Shadley case demonstrates that when the lawyer/client relationship doesn’t function completely properly, it can be costly.

For instance, certain insurance companies will take any case to trial that has a legitimate defense.  Likewise, many professionals choose to litigate rather than pay an early settlement demand.  The result for the plaintiff (and often, the defendant, as well) is the same, but the motivation, and business reasons for the decisions, are different. 

The insurance company develops a reputation as a tough defendant, and in the process hopes to obtain more favorable offers of settlement from future plaintiffs.  The professional protects his or her reputation (and perhaps a license). 

Civil litigants, when considering entering into, defending, or negotiating to conclude litigation, should be motivated first by their business goals.  Litigation should be used as a tool to protect hard-won marketplace positions, or to obtain a competitive advantage.  It is not an end in itself, but rather part of a complete strategy for business success.

As a litigator, I spend a lot of time learning about subspecialties of different industries, like deep-hole drilling of industrial heat exchangers, proper operation of bovine slaughter and processing facilities, design of intake and outflow pipes for municipal water supplies, or proper construction of a latch bolt on a livestock trailer.  This is one of the reasons that I love what I do.  Learning the facts and background information necessary to understand, develop, and advocate my client’s case is both challenging and immensely rewarding.

Many cases, though, require additional expertise in an area of law rather than merely learning the facts of the matter.  In those instances, to provide excellent representation, it can be necessary to obtain qualified and expert assistance.  For instance, while I will happily and competently litigate an adverse possession case, I will also seek the assistance of a real estate transactional lawyer in drafting the easement negotiated to settle the matter.  If a particular case calls for expertise in the worker’s compensation law and surrounding procedures, patent work, or trusts and estates, I will seek the assistance of those lawyers who work day in and day out in those fields.

While not everyone does, I have the luxury of finding those specialized lawyers in the same firm in which I practice.  It is this kind of collaboration and willingness to recognize the limits of our experience that provides efficient, focused, and effective client service. 

To be sure, there are many competent general practitioners out there who can represent a criminal client in the morning, draft a will at lunch, and argue a summary judgment motion in a legal malpractice case in the afternoon.  I, however, am not one of them.  In my mind, excellent representation is most often provided by those who practice in specific areas, keep up on the most current changes in those areas, and are knowledgeable about the details of the practice area.

The court concluded that the statute of limitations applied to personal injury actions, whether or not brought as counterclaims.  However,

While it is true that Wis. Stat. § 893.54 references only “actions” and not counterclaims, Wis. Stat. § 893.14 provides the link between §§ 893.14 and 893.54.  Section 893.14 provides:

Limitation on use of a right of action as a defense or counterclaim.  Unless otherwise specifically prescribed by law, the period within which a cause of action may be used as a defense or counterclaim is computed from the time of the accrual of the cause of action until the time that the plaintiff commences the action in which the defense or counterclaim is made.  A law limiting the time for commencement of an action is tolled by the assertion of the defense or the commencement of the counterclaim until final disposition of the defense or counterclaim.  If a period of limitation is tolled under this section and the time remaining after final disposition in which an action may be commenced is less than 30 days, the period within which the action may be commenced is extended to 30 days from the date of final disposition.

Because the statute of limitations was tolled from the date of the plaintiff’s filing, the counterclaim was timely.

The reason this became an issue at all is because most insurance companies refuse to pay for anything more than pure defense, even if a colorable counterclaim will provide great leverage.  The position can be shortsighted, often leading to later problems when settlement is being seriously discussed, and the plaintiff wants a package deal including the counterclaim that now belongs to the insured defendant. 

Ideally, talk with your insurer early and in detail about the usefulness of potential counterclaims and the role they’ll play (if any) in defense.  It may prevent your case from being the next reported statute of limitations case out there.

But that’s not usually enough.  Which clerks will work with you and which won’t?  Often, local counsel will have a pre-existing relationship with the power behind the bench, the clerks and judicial staff.  Are there any twists to the local rules that don’t appear in writing?  The answer is almost always yes — but unless you’ve practiced there, you don’t know when those twists will grow into major kinks in your litigation.

Perhaps the best example is the Western District of Wisconsin, proudly bearing the colloquial title of the “Rocket Docket.”  Even though Judge Shabaz has retired, the timelines haven’t stretched noticeably.  Many are the out-of-state attorneys who heard tales of the Rocket Docket, but were caught flat-footed when they found that the legend was not only for real, but often understated the actual effect of the agressive schedules. 

The upshot of all of this is that when litigation arises, it’s vitally important to have access to counsel who know the courts, the staff, and the potential jurors.  Local counsel is worth the additional investment.

“This is a dramatic vote of no confidence from Chief Legal Officers,” said Altman Weil’s Dan DiLucchio, in a statement. “Either many law firms just don’t understand that clients today expect greater value and predictability in staffing and pricing legal work, or firms are failing to adequately communicate their understanding and willingness to make real change. In either case, it’s a big problem.”

The Business Journal provides some more discussion of the study.  From my perspective, this is actually heartening news.  Too often businesses and their inside counsel, acting out of habit or familiarity, return time and time again to law firms that do not provide the best service or the best value.  But comfort and history are two luxuries that are becoming less affordable all the time. 

Merely changing staffing models isn’t going to do the trick — outside counsel have to prosecute the litigation as part of the client’s overall business strategy.  This means that alternative billing arrangements should be discussed, in an open manner with a variety of options, including fee caps, blended fee agreements, litigation support economies, and other alternatives to the almighty billable hour.  If both the client and the lawyer want to be in business together, there’s generally a way to make it work for both.

There’s no question that some measure of “you get what you pay for” applies in litigation.  I’ve seen too many clients, in the face of stark evidence of who is the better lawyer, choose only the cheaper lawyer.  As with everything, there must be balancing of the often competing interests of victory and cost, as well as a clear identification of a client’s goals.  In my mind, the value of a law firm’s service should be measured by its contribution to its clients’ success.

Mike Dillon has a great discussion of this issue from the perspective of a general counsel, at his blog the legal thing.

Even the negotiation of settlements can create problems for those who do not hammer out such agreements on a recurring basis.  In-house counsel (for those you who are reading this, I except you from this rank speculation) can forget that plaintiffs’ lawyers, unless you include in the original discussion something as simple as confidentiality, may demand additional compensation for adding a confidentiality provision later on.  Neglecting to negotiate this in the originally-agreed upon settlement package can needlessly increase the cost of the settlement.

You shouldn’t hire someone that you don’t trust to handle litigation.  Litigators expect, and we desire, that the client will have the final say on all matters important to a lawsuit, and particularly settlement terms.  But we also expect, and can serve you best, if you leave the communication with opposing parties entirely to us.

Plaintiffs request roughly 361 gigabytes of data. . . .  Zurn represents that by using the generally accepted standard of 75,000 pages per gigabyte, Plaintiffs’ request amounts to nearly 27 million pages of documents. . . .  If the K drive were not searched, the remaining data consists of 48 gigabytes.   Zurn also states that a search of the custodians’ emails and J drive files will require approximately seventeen weeks and cost $1,150,000, exclusive of vendor collection and processing costs, to review and process the data.

A couple other issues of note — the court mentions that counsel worked through discovery “amicably.”   It’s a sign of the declining level of professionalism in law practice when counsel who work amicably together are sufficiently anomolous to warrant comment. 

For clients, this decision provides something for you to consider.  Counsel who fight bitterly with opposing lawyers, while sometimes scratching an emotional itch on the part of the client, often succeed only in increasing the cost and length of litigation.  Professionalism and civility can make a distasteful event like a lawsuit a little less distasteful.  And as this decision proves, having counsel that are reasonable can, in the end, save millions in discovery and motion costs.