Quick quiz. Do you know what per centage of your company’s motions for summary judgment (MSJ) are granted? Do you know the average cost for bringing a MSJ?
I recently examined these questions for an insurer as part of a broader project I was engaged to do to identify the drivers of legal cost and ensure that the appropriate processes were in place to control those costs. One of the drivers I identified was the costs of preparing and bringing MSJ.
In looking at the MSJ filed by the insurer’s outside attorneys in the past 5 years, I found that only 13% were successful. Ironically, I also found that the average cost to bring a MSJ was almost equal to the insurer’s average legal costs in like cases in which MSJ were not filed over the same 5 year period of time.
As experienced litigation managers (and yes, even experienced defense counsel) know full well, MSJ are very seldom granted in tort liability cases. So why are they filed?
In my work for the insurer, we found that there were three principle reasons why MSJ get approved for filing. One is that there is a genuine belief that the it would be successful that was based upon an appropriate analysis of the issue(s) including an analysis of the issue(s) upon which the MSJ would be based and the jurisdiction.
Two is that an experienced defense attorney talked a less experienced litigation file handler into pursuing a MSJ without the file handler (or their supervisor) undertaking an appropriate analysis. The third situation (really a species of the second) is that the attorney appeared to take advantage of experienced, but overworked file handlers who did not take the time to do the work necessary to appropriate analyze the issue(s).
In both of the last two situations, the file handlers and their supervisors were mainly relying upon the spin of an enterprising defense attorney. Don’t forget that MSJ are a huge cash cow for attorneys and in many cases, MSJ are constructed of recycled work product which is often billed as if it were originally prepared.
So it is no wonder that MSJ are pushed hard by enterprising defense attorneys who often can spin a compelling yarn about the benefits of bringing a MSJ. But, in many cases, it is just a yarn that cannot stand up to close scrutiny. Nevertheless, we found file handlers and their supervisors in many instances were listening to the this siren song of the benefits of bringing a MSJ, but not doing the necessary analysis to determine if a MSJ would actually be successful.
To correct the problem, I recommended two things. First, I recommended that future decisions on whether to bring a MSJ was taken out of the hands of the individual file handlers and their direct supervisors and put into the hands of a senior claims management committee. Second, I recommended the development of a decision matrix to use to make sure that the right criteria is analyzed to determine whether or not to authorize the preparation and filing of a MSJ.