At A2L, we work on many disputes and trials of various types and sizes. Before starting work, we routinely provide our customers with estimates of what we think it will cost to engage us to conduct a mock trial, prepare trial presentations, assist in the development of the opening statement, and run the courtroom technology.
While it’s never easy to estimate the final costs of fast-moving complex litigation, it's something that firms like ours and large law firms do every day. We've been doing it for 24 years, and we've even pioneered some innovative pricing strategies for litigation graphics and trial tech work. However, I've noticed two schools of thought when it comes to estimating, and one of them seems to lead to better outcomes.
In shorthand, I'll call these two methods a top-down method and a bottom-up method. In my experience, the top-down method leads to more successful engagements, more wins, and much better and trusting relationships.
To summarize the top-down concept, when budgeting for trial, I encourage top trial teams to establish an overall litigation consulting budget that leaves room for the inevitable, unpredictable changes that occur leading up to trial. Indeed, I believe that there is an appropriate investment in litigation consulting services (just as there is for the services of trial attorneys) for every case and that it represents a scale based on a handful of factors. For example, a case involving a multiple-member joint defense team comprised of several large law firms representing clients facing $500 million of potential damages facing an eight-week trial should invest quite a bit more in litigation consulting efforts than a small firm in a $5 million case.
In fact, for the hypothetical joint defense group referred to above, I'd budget around $500,000 for an in-venue mock trial with deliberations, assistance from trial attorneys and jury consultants to develop the opening statement narrative, the development of litigation graphics for both sides of the mock trial and for opening, closing and some experts, and trial technology support including a hot-seat operator for the 8 weeks of trial. Of course, a multitude of factors can ratchet this number up or down, but by and large, that’s a pretty reasonable estimate.
The relationship of cost to case size is not one-for-one. A dispute about half as large as the above hypothetical probably demands an investment close to two-thirds the cost. A dispute one-fifth as large should see an investment somewhat less than half. Of course, not every case requires all these services.
However, notice that I use the words “demands” and “should” to describe the investment. I'm trying to convey that there are many ways to spend less and many ways to spend more. However, looking back over thousands of trial-focused invoices, the trial teams that approach litigation consulting work looking for the appropriate investment up front (aka top-down) tend to be the ones that succeed at trial. They tend to hire smart consultants and focus on preparing and practicing for trial.
However, I see many others, law firms and litigation consulting firms alike, taking a different approach – what I call the bottom-up approach to estimating and budgeting for trial. For example, one well-known “trial graphics” firm appears to take a bottom-up strategy to estimating their prices, using metrics like numbers of demonstratives and rounds of edits. The problem with this method is that nobody guesses right and there seems to be so much underestimating that the typical result is a strained relationship between trial attorney and client later. I don't believe that's the right way to conduct business.
I've always believed that it is best to be honest. We even do flat-rate pricing when we have a good idea of the scope in advance. There's no more honest approach than that – but not many cases lend themselves to this approach because the scope of the work is rarely clear enough at the outset to make this workable.
For some of our services, we can estimate quite accurately. For example, planning for a mock trial is quite predictable. There are a set schedule and set costs, and the variable expenses are not likely to change much. Of course, there are relatively less expensive focus group exercises, and there are also big-ticket multi-round mock trials.
Estimating final costs for hot-seaters/trial technicians is more complex. Some trial teams work with a trial technician eight hours a day, and there are few video depositions and documents. However, some trial teams overwork the technician, and support from headquarters needs to be added mid-trial and there are hundreds of hours of video depositions.
For litigation graphics work and litigation consulting work, the truth is we really don't know what it will cost in advance unless we know the team and the case very well. However, we can provide a highly educated guess based on a number of factors that I have listed below. You can see from these factors that I'm most interested in seeing a trial team making the optimal investment rather than making the highest or lowest possible investment.
- What is at stake (dollars)
- What is at stake (principles/pattern litigation/bet-the-company)
- The experience of the trial team
- The number of law firms involved
- The first chair attorney’s desire to practice his or her presentations
- The length of trial
- The size of the client
- The number of documents
- The number of issues/complexity of the case
- The quality of the trial team (here's a tool for measuring trial team quality on a 0-100 basis)
You'll notice that I didn't address the number of rounds of mock trials, the number of litigation graphics, the number of run-throughs of opening statements, or the number of late nights a trial technician has to work. The truth is that these variables turn on an analysis of what's needed in a particular case, rather than some cookie-cutter, prefabricated template, and the only certainty is that they will certainly change between the time we first meet a client and the time we celebrate a win together.
In summary, ask me what I think you should invest in a case, and I can tell you accurately what others who were similarly situated -- and who obtained a successful outcome -- have invested. Doesn't that make a lot more sense than trying to guess how many slides you'll need in opening and whether you'll make three rounds of changes or 30 rounds of changes? When winning matters most, we do what it takes. Does that matter most to you and your client? If so, I'd love to talk.
Related A2L articles and resources focused on pricing, budgeting, estimating, and litigation management:
- The Very Best Practice in Alternative Fee Arrangements
- 12 Alternative Fee Arrangements We Use and You Could Too
- What Does Litigation Animation Cost? (Includes Animation Examples)
- 21 Secrets for Using Litigation Consultants on a Tight Budget
- 7 Ways to Prepare Trial Graphics Early & Manage Your Budget
- 12 Ways in Which We Make a Boutique Litigation Firm Feel Like a Big Firm
- 10 Fears That First-Time Users of Litigation Consultants Have
- 10 Ways Timely Payment Helps You Save Money On Litigation Consulting
- 24 Things to Know About The "New Normal" of The Legal Economy
- 17 Tips for Great Preferred Vendor Programs
- 50 Characteristics of Top Trial Teams
- Joint Defense Groups: The Good, the Bad and the Ugly
- What Does Using a Trial Technician or Hot-Seater Cost?
- How Creative Collaboration Can Help a Litigation Team
- 9 Trial Graphics and Trial Technology Budget-Friendly Tips
- Victory at Any Cost! Using Litigation Consultants to Dominate
- Why Trial Tech ≠ Litigation Graphics
- [Free E-Book] The Value of Litigation Consulting 2nd Edition
- 11 Small Projects You Probably Don't Think Litigation Consultants Do
- [New and Free E-Book] 50 Helpful Articles for Litigation Leaders
- 10 Criteria that Define Great Trial Teams