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.
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.