• July 9, 2013
Photograph by Maura Teague

Photograph by Maura Teague

The optimal number of depositions one should take in a  civil lawsuit with $50,000-$75,000 at stake is…

  1. No depositions?
  2. One deposition?
  3. Three depositions?
  4. As many as it takes to maximize the likelihood of winning at trial in the best judgment of a reasonably experienced trial lawyer?
  5. As many as you can get your client to agree to and pay for?

If you selected #5, you are a thief.  If you selected #1 – #4, you might be a fool.

How much does it cost to take a deposition, by the way? Just buying a transcript of a deposition for a full day’s deposition that your client has noticed and taken will run you about $1,000.  Assume a 7 hour deposition and 10 hours of attorney “deposition preparation” at a rate of $200/hour (which is conservative both as to prep time and hourly rate) and we’re talking about $3,500 in legal fees, so we’re creeping up on $5,000/deposition, conservatively estimated.

No one can identify “an optimal number” of depositions in a particular case solely based on the amount of money at stake but it is pretty safe to say that 15 depositions for a case in which your client might, at best, recover $50,000 would probably be grossly excessive and almost certainly result in failure/pyrrhic victory given the costs of depositions (if the net recovery of money is the client’s primary objective, as it normally is).

In 1999, U.S. District Court Judge Patrick J. Schiltz (D. Minn.) published a widely cited law review article that highlighted the intense pressure on lawyers and, in particular, large firm lawyers, to work and bill long hours.

In 2013 (last week, in fact), Judge Schiltz sent a message to litigants in a case before him that reminded me of his earlier work.  That is, Judge Schiltz seemed to question or at least raise the possibility that the parties might be getting “more lawyer” than justice in a “modest” patent infringement case.  (In the linked order, Judge Schiltz does admit, however, his limited knowledge as to what is at stake in the litigation.)

Neither Judge Schiltz nor Minnesota Litigator is in a position to condemn, criticize, (or defend, I suppose) the lawyers’ conduct in the specific case.  On the other hand, I think it is fair to say that both Judge Schiltz and I recognize that subtle (and not so subtle) pressures and incentives on lawyers can sometimes result in clients’ over-investment in commercial disputes.

Courts can play some role in policing against anomalous disequilibria or “agency costs.”  But could this be a thorny thicket because no one can say what is “optimal”?  Is it appropriate for the courts to weigh in on the question?  Is it paternalistic and/or meddling or, on the other hand, is it functioning as appropriate oversight with a view toward ultimate the ultimate goal of fairness, efficiency, and justice?

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