Using Strategic and Tactical Decision Making to Control Litigation Costs

It is, perhaps, too obvious to be worth noting that the costs of litigation are a primary source of friction between clients and their attorneys. Though a good attorney will do his or her best to advise a client of the likely costs of litigation at the outset of a case, all too often, as cases drag on, the costs of litigating a case spiral far beyond the expectations of clients. Such a result can threaten the working relationship between a party and its attorney, and, if left unaddressed, can impact the results of the litigation itself.

While some of the costs of litigation cannot be avoided, and unexpected and unavoidable expenses may arise inevitably as a result of the actions of an opposing party, often higher than anticipated costs of litigation are a direct result of strategic and tactical decisions made by the party and its attorneys. Decisions made at the start of a case, for example, may significantly impact the cost of litigation. In a case for breach of contract between businesses, for example, a decision to name the defendant company’s president as a party, and to assert claims of fraud against him or her, while possibly made in the hope of impressing the defendants with the seriousness of the claims against them, also is likely to result in significantly higher litigation costs when the defendants vigorously fight those claims.

Similarly, when, in the course of litigation, a party faced with a request to produce documents decides to resist providing documents despite the fact that there is only a small chance it’s opposition will succeed, or when it opposes a reasonable position taken by the other party to avoid looking “weak,” the party is making a tactical decision that directly increases its costs. Those types of decisions, repeated over the course of a case, can dramatically increase the cost of the litigation.

At Konowitz & Greenberg, we encourage our clients to consider these factors both at the outset and throughout the course of litigation. We work with our clients to ensure that they understand the implications of their decisions; the impact of these decisions on the litigation and on their bottom line. It is our goal to have a client that not only is happy with the results of litigation, but satisfied with the manner in which the result was achieved.

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