The best part of being a civil litigator is, of course, when one’s client asks you how much trial will cost or even better, when clients or prospective clients ask how much an entire litigation engagement will cost from pre-filing of a complaint through resolution of the lawsuit.
It is hard to sort through the cascade of emotions that pulsate through the trial lawyer’s amygdalae — terror, confusion, despair, shame….
Seriously, whoever is footing the bill for legal services has an obvious interest in knowing the likely cost but, as civil litigators know, these can be extremely difficult to predict accurately because, try as we might, the many twists and turns and therefore the cost of litigation defies prediction. But, still, as trial approaches, lawyers should have some sense of how much trial will cost even if they cannot ever know in advance how it will end up.
One approach at an extremely rough estimate of the price of trial is to take one day of trial (which can be counted as 12 hours — counting time in trial (7-8 hours) and time before and after trial each day preparing for days to come) and to estimate three days of trial preparation time for each day of trial. So, for example, a two day trial would be estimated at 96 hours of a single lawyer’s time (that is 6 days trial preparation time and the 2 day trial itself), or, for a lawyer billing out at $300/hour, or about $30,000 for that one lawyer’s time alone. This would result in a budget estimate on the high side, I think. (Better to come in under budget than over?)
But do not forget to add “costs” to that. These will vary a great deal with the lion’s share being the hourly costs for any and all experts and, believe it or not, photocopying or other mechanical/technical reproduction costs associated with trial.
Another more rigorous approach to estimating pretrial costs could be to break down the actual tasks and costs performed in conjunction with a trial. A recent trial order from U.S. District Court Judge Patrick J. Schiltz (D. Minn.) gives some good insight into some of the specifics there. (It also has a handy checklist many of the pretrial “to do” items.)
- Trial Briefs (highly case dependent, 3-10 hours);
- Exhibits (highly case dependent, 4-6 hours for every 50 exhibits?);
- Witness list (2-3 hours);
- Deposition Designations (1-4 hours per deposition);
- Motions in limine (pretrial evidentiary motions) (highly case dependent, 3-10 hours per motion?);
- Stipulations (highly case dependent 0-5 hours?);
- Proposed voir dire (preliminary questions to jurors to root out any bias or disqualifying factors (e.g., spouse of a party, deranged psychopath)) (2-4 hours);
- Joint Introduction to the Case (1-3 hours?)
- Joint List of Parties, Attorneys, and Witnesses (1 hour)
- Proposed Jury Instructions (highly case dependent, 10-30 hours);
- Proposed Special Verdict Form (highly case dependent, 3-15 hours)
Note: these are rough estimates of a single experienced trial lawyer’s time. A great many (most) cases will require more than a single lawyer at trial. And an inexperienced lawyer could take a lot more time with many of these tasks or, not knowing what it is all about, might take a lot less time (in which case lawyer and client will ultimately pay the price in other ways)).
Each additional lawyer will not double the above estimated task hours, of course, as that would be patently inefficient, but each additional lawyer (up to a point) could add meaningful value and could bump the numbers up for each task another 30-70%.
Note: there are many aspects of pretrial preparation which do not show up on this list, such as witness preparation, opening statement, closing statement, preparing direct exam, preparing cross exam. All of these take substantial amounts of time as well.
In short, under very rare circumstances can trial lawyers confidently give their clients reliable trial budgets (which I’ll define as +/- 10% margin of error). They may, however, be willing to share or take on the risk and uncertainty by capping fees, by shifting to a discounted fee with a “success bonus,” by some other kind of hybrid contingent fee, or by a completely contingent fee arrangement, and so forth.
I expect the exceptions to this possibly inevitable unpredictability might be when clients are large corporations, major accounting firms, insurance companies, or lawyers are in large and established law firms. These institutions may have been able over time to collect and analyze sufficient data from which to draw so that they can, at least in theory, define some search parameters from their extensive data sets and come up with a sampling of similar cases and a range of fees and costs.
For the rest of us, however, the costs of trial, like the outcome of trial, will unfortunately demand but defy prediction.
Seth Leventhal has been a Minnesota trial lawyer since 1996. Minnesota businesses and individuals do not need a legion of lawyers for every commercial or business dispute. For most legal disputes, you need one good lawyer and you should get the best you can find. If you have business or commercial litigation in state or federal court in Minnesota that you want handled efficiently, ethically, and cost-effectively, call: 612-234-7349.