In the UK in recent years, the courts have given consideration to cost reduction and rule changes have been made for that purpose. In particular, the value of discovery has been found by experience to be issue-related, although on occasions discuvered documents have had a decisive influence. But in many cases litigation bloat and large teams rule. The US suffers from this problem to a greater degree than us, and the disproportionate cost of discovery was commented on at the Florida Experts Conference only two days ago.

So who do we get more bangs per buck in litigation, or more decisions of practical utility to the parties for each invested $?

Thanks for the comments. Actually, you misjudged me. When assisting my Asian clients in retaining litigation counsel, I often recommend small firms rather than mega-firms. I fully agree that one can find equally talented attorneys in a small firm, who will charge substantially less, may be more attentive to the case, more genuinely concerned about obtaining a good outcome for the client, and won’t pass it off to a colleague who knows nothing about the case and never spoke with me.

Despite their higher rates, I’ve had good experiences with mega-firms, too, in particular with joint representation. But, like you, I tend to prefer smaller firms and have several that I work with regularly, whose attorneys previously worked for top-notch global firms, but now perform the same services for substantially reduced rates.

I’ve also heard of the practice you describe, of some in-house counsel hiring top brand-name firms, so if things go badly they can inform management “we hired the best; there was nothing more we could have done.” In fact, I had a former boss who was always talking of “cover your ass” and sometimes employed the above strategy, but I prefer to cover my ass by doing a great job: by carefully reviewing the facts and law, doing research, writing precise correspondence and documents, retaining skilled, honest, counsel who genuinely care, working with them closely, reviewing their work, and communicating regularly with them and with management.

It’s the lazy, unskilled approach for in-house counsel to hand a case over to a mega-firm, or any attorney or expert, and expect them to constantly look out for the client’s best interest, only performing tasks that truly advance the objective in the most effective and cost-efficient manner. It’s not that outside counsel are dishonest, but it’s surprising how many very bright, experienced lawyers, experts at their particular legal field, are too busy or don’t seem to understand that most companies struggle extremely hard to make every dollar, are constantly seeking to minimize all costs, and don’t want to get caught up in legal maneuvering, instead wanting only the end objective at the lowest possible cost.

Consequently, in-house counsel should hire the lawyer, not the firm. They should obtain fee quotes and preliminary advice from several attorneys. They should evaluate which one seems to best understand the client’s objectives and how to best achieve them. They should demand that the attorney provide fee caps or some other means of certainty, because it may be true that “it’s difficult to estimate how much time will be required,” but that doesn’t matter one bit to the client, because companies require foreseeability. And they should work closely with outside counsel to ensure the most effective, cost-efficient strategy and sound execution of the strategy.

So, I guess we agree. Regrettably, sometimes one does get forced into patent litigation and it”s invariably expensive, but careful management of the case and counsel can make a difference.

Chris