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 firstname.lastname@example.org and I will send you a copy.