Insight

Budgeting the Unpredictable

Careful, comprehensive budgeting, regularly reviewed and adjusted, will enable you to predict the unpredictable, efficiently make the most of your resources and bring mass tort litigation to a successful conclusion.

Orange, blue, teal and peach life preserver
WH

William J. Hubbard

September 2, 2022 12:00 AM

THE DAYS OF looking under every rock are over. Clients now expect mass tort litigators to turn over only the right rocks. While experience, and sometimes a little luck, can help you identify the most beneficial ones, developing a litigation budget and plan—and, more importantly, regularly tracking time and fees to your cost estimates—can help you evaluate which rocks offer the highest potential return on investment.

Mass tort litigation is unpredictable, making it extremely difficult to budget for individual cases—it’s like trying to estimate the construction cost of a building that someone else is simultaneously trying to demolish. However, developing an initial case budget, then monitoring and adapting it as litigation proceeds, will help you and your client make strategic decisions based on costs and your ultimate goals.

Initial Case Budget and Planning

Countless factors can affect a mass tort litigation plan and budget, including opposing counsel’s aggressiveness, availability of client witnesses and documents, discovery disputes and the caliber and number of experts who appear, which can be difficult to predict and often change during litigation.

Litigators, trained to know the law and the facts—and always expected to be right about both—often find it difficult to accept that because of cases’ inevitable twists and turns, their budget will not, indeed cannot, be perfect. This shouldn’t cause paralysis or become an excuse to avoid budgeting in the first place. Accepting unpredictability, and understanding that the budget will evolve, makes it possible to create a more accurate plan from the outset.

You can, despite any case’s unpredictability, map out and make informed assumptions about the general course of litigation. Certain things are likely to occur and must be budgeted for:

  • Written discovery and documents will be exchanged;
  • a few discovery disputes will be resolved through the meet-and-confer process or motion practice;
  • plaintiffs and other fact witnesses will be deposed;
  • 30(B)(6) deposition topics will be negotiated, with client witnesses prepared on those topics and their depositions defended;
  • plaintiffs’ expert reports will be reviewed and defensive expert witness reports will be developed;
  • expert witness depositions will be taken and defended;
  • and Daubert and dispositive motions will be drafted.

Your budget must include assumptions about the quantity and quality of all the issues above. Budgeting for them will help you discuss with your client the cost of each and the potential return on investment. To be most effective, create your budget at the task level—that is, use ABA task codes (L110 Fact Investigation, L240 Dispositive Motions, L330 Depositions)—with time assigned to individual timekeepers. Evaluate each task’s strategic value, considering factors such as whether every fact witness must be deposed, if every discovery dispute is worth the fight and how many experts you need to retain. Consider, too, which is more cost-effective: using a paralegal or a vendor to subpoena and obtain documents from a third party—and, if you use a vendor, can those costs be shared with codefendants? While some depositions can be taken remotely to avoid travel costs, other more strategic depositions must still be taken or defended in person.

It’s like trying to estimate the construction cost of a building that someone else is simultaneously trying to demolish."

Expert fees are another major cost that can quickly escalate if not properly managed, so ask experts to submit budgets of their own and incorporate those costs into yours. Is every potential expert necessary? Putting a price on each one will help you decide. Once you’ve retained an expert, meanwhile, your budget will help your team manage his or her work—and will make the expert more conscious of those costs as well, encouraging efficiency.

These strategic decisions must ultimately be made by the client, of course; understanding the cost of every task will enable you to identify which issues to discuss at the outset and how they will affect your budget.

Managing the Budget and Litigation

Too often, budgeting ends at the beginning of the case, the budget filed away in a drawer and promptly forgotten. Yet it will provide the greatest value when you use it to track time and fees and efficiently manage the litigation. This starts with reviewing it and work planning with your team so they all understand their roles and know how much time they’re allotted for a given task. As the case progresses, team members can flag instances where they might be over budget and help figure out (along with the client) how resources should be prioritized and allocated.

A budget created at the task level for individual timekeepers who enter their time regularly allows for granular reporting, enabling the case manager to review actual hours and fees and evaluate whether the matter is on budget for each task—and if it isn’t, identify why not.

You’ll surely have to revise some initial assumptions and adjust your budget as things progress. Perhaps your team needs to review more documents or depose more witnesses, or maybe a substantial dispute has arisen over privilege. Regularly reviewing and analyzing the effect those issues have on your budget is sound strategy. Must you review every document prior to production, or can you spot-check and use a clawback agreement? Do you need to subpoena every medical provider and depose every witness? Is the privilege fight really worth it—if you’re contesting a claimed privilege, will the withheld documents be worth the effort of obtaining them? Knowing the actual cost of all these tasks will enable you to make informed decisions.

Conclusion

Budgeting can seem like an impossible chore. When you break a matter down into individual tasks and identify what’s likely to happen with each, though, you bring some predictability to the unpredictable. Crucially, budgeting forces you to plan the litigation and discuss with your client the litigation’s goals and what they’ll cost to achieve. It also enables you to set expectations with your team: their individual roles, and how you’ll develop and implement strategy throughout the case.

Most importantly, tracking actual hours and fees against the budget shows you where resources are going, so you can advise the client early and often on the status of the litigation against what you initially anticipated. Clients don’t like surprises; budgeting helps you avoid them. Which rocks are hiding the most useful information? Budget well and you’ll know exactly which ones to turn over.

William J. Hubbard is a partner in Thompson Hine’s Product Liability practice. Bill’s product liability litigation practice includes representing businesses and property owners in mass tort and class action litigation involving building and other consumer products as well as litigation involving allegations of exposure to chemicals or environmental contamination (including claims of exposure to PFAS, TCE, diesel fuel, benzene, carbon monoxide, chromium, mold, PCBs, sulfur dioxide, radon and vinyl chloride). He also represents owners, contractors, architects, engineers, construction managers and other construction professionals in various construction disputes, often involving catastrophic damage or significant design or construction failures. He can be reached at Bill.Hubbard@ThompsonHine.com.

Headline Image: ISTOCK/AKINBOSTANCI, ISTOCK/MARCHMEENA29, ISTOCK/ INCHENDIO

Related Articles

The Write Stuff


by Michele M. Jochner

A series of pointers for making your legal writing clear, concise and—crucially—persuasive.

Closed laptop with woman holding pencil

Getting Reorganized


by Sameer M. Alifarag and Seth H. Lieberman

Taking a second look at first day relief: an examination of recent bankruptcy trends through the lens of two important debtor motions and their impact on Chapter 11 bankruptcy proceedings.

Desk lamp with yellow background

Accommodation Reigns


by J. Lott Warren and Kara E. Shea

A recent 6th Circuit Court decision could have big implications for employers who don’t follow reasonable-accommodation standards within disability and medical-leave law to the letter.

Blue lungs behind white clock

COVID-19 and a Cloud of Dust


by John J. Song and Theodore M. Becker

Think ERISA health plan litigation was convoluted before? The pandemic—and future pathogens such as the monkeypox virus currently causing consternation among health authorities worldwide—will further upend the legal landscape as new regulations and statutes take effect.

Masked man with airborne germs

The Great Debate: Do You Arbitrate Commercial Disputes?


by David K. Taylor

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place its very solvency in the unpredictable hands of a judge and jury?

Hand moving multicolor blocks

Punishment and Deterrents


by David A. Yeagley

Facing a jury instruction on punitive damages? Here’s a cheat sheet to help you secure the best possible outcome for the defendant you represent.

Seated man wearing glasses and looking down

Freedom to Compete


by Alyson M. St. Pierre and Ashley C. Pack

Recent movement at the federal level regarding management-labor relations mean changes to enforcement of noncompete agreements and other covenants could be imminent.

Woman in front of open blue door

Before the Claim Hits


by George L. Lankford

General liability insurance is rarely as simple as it might seem—and if you wait to examine your policy specifics until your business has been sued, it’s too late.

Ship sinking surrounded by money

Be Careful What You’re Waiving


by Danielle E. Tricolla and Gabriella E. Botticelli

It’s not true that any correspondence between attorney and client is de facto privileged. That protective wall can crumble quite easily, in fact. Here’s a primer.

Multicolor envelopes flying out of laptop screen

Trending Articles

The Best Lawyers in Spain™ 2023


by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Chile™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The 2023 Best Lawyers in Portugal™


by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Announcing The Best Lawyers in Peru™ 2023


by Best Lawyers

Honoring our awarded lawyers for 2023 in Peru.

Red and white stripes with green leaf symbol

The Best Lawyers in Spain™ 2022


by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Spain™ 2022

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Thirteen Years of Excellence


by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

IN PARTNERSHIP

Rewriting 𝙃𝙀𝙍𝙨𝙩𝙤𝙧𝙮 One Verdict at a Time


by Justin Smulison

Athea Trial Lawyers was formed only a year ago by several prestigious lawyers seeking justice for their clients, and together they are making history.

Six female lawyers sitting in office

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Announcing the 2022 Best Lawyers in South Africa™


by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing 2022 Best Lawyers in South Africa