Lack of “Strategic Focus” A Top Concern in CLM Litigation Management Study

The CLM recently released its third in a series of litigation managements surveys the organization has done over the years. In the 2019 survey, some 80 litigation management executives were surveyed on a variety of litigation related topics. The comments to various questions in the survey revealed a number of interesting findings and concerns.

One of the top concerns expressed by survey participants was a “lack of strategic focus” on the part of outside counsel. Unfortunately, the CLM survey did not define what was meant by it use of the term “strategic focus.” To me, the term means simply an upfront focus on what needs to be done to achieve a favorable result sooner rather than later.

A strategic focus starts with a focused litigation plan which is something I blogged about several years ago in a piece entitled “The Importance of Focused Litigation Planning.” As I observed in that piece, “one thing I consistently notice in many files I reviewed is the lack of a focused litigation plan or worse yet, no litigation plan at all.” Sadly, I find that statement to still be true today as it was when I first made it six years ago.

Most importantly, the lack of a strategic focus usually does not lead to favorably resolving a matter sooner, rather than later. That this is true partly can be seen in another concern expressed in the survey. Some 80% of the CLM survey participants stated their concern that “litigation settled later in the process than necessary.” At the risk of sounding like Mr. Obvious, I will state the obvious: a lack of a strategic focus will more often than not lead to litigation settling later in the process than necessary.

But there is yet another important connection to be made here.

If a lack of a strategic focus can lead to litigation pending longer than necessary, then it is more likely than not that this will lead to an increase in the costs of the litigation. That this statement is true can be seen in another concern expressed by survey participants that “costs per filed have increased.”  Again, at the risk of sounding like Mr Obvious, I will state the obvious: if litigation is settling later in the process than necessary, then it is more likely than not that litigation costs will increase.

In summary, a lack of a strategic focus in a litigated file more often than not leads to litigation settling later in the process which then leads to increased litigation process. Of course, unfocused litigation can also resolve sooner rather than later and cost less. But when these things do occur in a litigated file, it is called happenstance.

Overall, the 2019 edition of the CLM Litigation Management Study has a wealth of interesting tidbits of information on a wide variety of litigation related topics. At the very least it is an interesting snapshot of top litigation managers current thinking on all things related to the litigation process.

In future blog posts, I will try to comment on other parts of the study that I found particularly revealing. In the meantime, if you manage litigation for your company or you are an outside attorney who handles litigation I would definitely recommend you get a copy of the study. You should be able to obtain a copy by Googling The 2019 CLM Litigation Management Study. If this does not work for you, you can email me at jconlon@legalbillaudit.com and I will send you a copy.

Research, Research and Even More Research – Part II

In my previous post, I noted that overbilling for research is regarded as one of the most “egregious” forms of overbilling by law firms. And while I tend to see it more often in larger firms who often view research as training projects for newer associates, I noted that overbilling for research can occur in any size law firm. As to what type of research should be billed to a client, I had noted that case law as well as the ethics of the legal profession provide that “general” or “background” research should not be billed.

In this post, I will cover what research can be billed to a client as well as who should do the research. Finally, I will provide a list of things that should be included in a company’s billing guidelines or a negotiated fee agreement on the subject of research. Continue reading

Research, Research, and More Research – Part I

“One of the most egregious forms of overbilling in many law firms is the almost infinite amount of time that is expended upon research into even the most minute legal issues.”  William G. Ross, The Honest Hour, (Carolina Academic Press) at p. 113.

Have you ever assigned a matter to a lawyer based upon the lawyer’s claimed expertise in the law involved in the matter and then gotten a big bill for research into the same law in which the lawyer had claimed an expertise? If you have, you are not alone.

Overbilling for research is one of the most common issues I come across in legal bill audits. And it seems to be the larger the law firm,  the greater the likelihood there is for overbilling for research. But overbilling for research can occur in any size law firm. Continue reading

For Attorneys Only! How to Avoid Legal Bill Disputes.

As all of my posts to date have been for the benefit of clients of lawyers, I thought it about time to write a post for the benefit of lawyers. And since lawyers like to get paid for their services, what better topic to write about than how to significantly reduce, it not totally avoid, the changes of becoming embroiled in a dispute over your legal bill.

In my CLE seminars on ethical billing practices for attorneys, I give 4 main tips on how to avoid disputes with clients over legal bills. These tips also mirror an attorney’s ethical obligations when it comes to dealing with clients on fee billing. Continue reading

Be Wary of First-of-the-Year Requests for Rate Increases . . . The Rest of the Story

In my previous post, I left hanging the question of how a firm’s charges for fees could increase if you denied the firm’s request to raise their hourly billing rates?  In one word – promotions.

That is, the first of the year is when many associates are promoted to partners. Thus it is that although the associate who was assisting the partner on a matter may still be assisting the same partner in the same manner, he now will do so a much higher billing rate due to the fact that the associate is now a partner.

Of course, who is promoted and when are internal law firm matters that are not subject to discussion with the client, let alone client approval. And that is the way it should be. But what is subject to client discussion as well as approval is how the client’s matter is to be staffed, specifically with regard to the appropriate mix of staff. Continue reading

Be Wary of First-of-the-Year Requests for Rate Increases

Ah, the start of  a new year.  Out with the old and in with the new. And some of the new things you often get at the the start of a year are requests from your attorneys for hourly rate increases.

In a prior blog piece, “A Primer on Increasing Hourly Billing Rates During the Course of a Representation,” I discussed applicable factors that should apply when an attorney notifies a client of a rate increase. Simply put, case law and the ethics of the legal profession dictate that timing of the notice to the client of a rate increase as well as the rate increase itself must be “reasonable.” However, this mainly address those types of situations in which the attorney and client have a written fee agreement whereby the attorney may have a contractual right to increase billing rates from time to time during the course of the representation. Continue reading

Wrap-Up of Series on How RPC Affects Lawyer Billings for Fees

This is my last post in a series of posts on how the how the ABA Model Rule of Prof. Responsibility (RPC) affect what lawyers can and cannot bill for fees. In my first post on the subject, I noted the implicated RPC that are set out in the ABA Ethics Opinion 93-379 (1993) on “Billing for Professional Fees, Disbursements and Other Costs.”  The PRC impacting how lawyers bill include: Continue reading