Litigation is traumatic, chaotic and confusing for most clients, even for clients who are no strangers to litigation. One of the primary reasons clients react to litigation in this way is the failure of attorneys to properly manage the case and involve the client in the litigation process. Another reason is the high cost of litigation.
Case management can bring litigation and its costs under control and instill a greater measure of predictability into the process. Litigation can become more of a science than an art form by identifying and systematically applying sound management techniques in planning and staffing, and by utilizing technology. Through case management, attorneys and clients can: (1) determine and achieve outcome objectives; (2) establish and attain cost objectives; and (3) create a productive and satisfying working relationship which allows the client significant participation in the litigation process.
Accordingly, case management must begin with a clear understanding between the attorney and the client as to both outcome objectives and cost objectives. At the outset of a matter, the attorney should confer in detail with the person or persons responsible for making both the client’s legal and business decisions to ascertain the client’s expectations for the outcome of the case. The attorney should inform the client whether the attorney believes it is possible to achieve the client’s expectations at a cost acceptable to the client. The attorney and client should then agree upon the outcome objectives and cost objectives and put them in writing.
Like a well-planned trip, litigation should start with a good roadmap. Although litigation plans should be flexible to accommodate changes in strategy necessitated by developments as the case proceeds, litigating without a plan can be highly inefficient and can lead to disappointing results.
The planning process should begin at the earliest possible moment, preferably before a lawsuit is filed. It bears emphasis that strategic decisions made at the outset of a matter can have a significant impact on the outcome of a case.
It is the rare case in which a litigated outcome is preferable to a settlement. Unless the client is staunchly opposed to settlement, or there are sound business, personal, or strategic reasons why settlement is not desirable or should not be pursued at this juncture, or both the client and the attorney believe that all reasonable settlement avenues have already been exhausted, the client and attorney should jointly plan and carry out a good faith attempt to settle the matter at the earliest opportunity.