Money as a Tactical Disadvantage: Don't Pitch Mountains of Cash into a Dumpster Fire
Having spent two decades of my life litigating and managing litigation, I’ve noticed a few persistent trends. One is this: smaller parties often leverage technology and data to beat their adversaries because it’s the only option. And a second: well-heeled parties often take more comfort than they should in resource disparities.
Resource disparities exist where one party has greater available capital and the willingness to spend it in litigation. Such disparities exist for lots of reasons, not all of them related to the size of the players. Regardless, I’ve seen over and again parties that buy into the seductive illusion that litigation effectiveness scales linearly with budget. It doesn’t.
Money regularly loses against creativity and data-driven decisions.
Is money useful in litigation? Of course. But only to a point. Money ceases to become useful when it puts downward pressure on creativity and upward pressure on things that don’t matter. In some situations, it can actively work against you, such as when it’s deployed to build unnecessarily large teams comprised of siloed minds (bad) that engage in expensive, brute force tactics (worse). Examples are plentiful: deliberately excessive discovery; ceaseless letter campaigns; pointless depositions; depositions that have a point but should have taken two hours instead of the seven hours they did take; and, of course, counterproductive motion practice.
Companies with money to burn and a desire to overwhelm their opposition sometimes use brute force to drive up their adversary’s billables (while simultaneously bolstering their own). These are the tactics born of plenty. Some are merely inefficient. Many are counterproductive. But all are routinely practiced by parties that have a surplus of capital but a deficit of creativity.
Smart money is on lean teams that lean into technology and the advantages it provides.
In stark contrast, none of these practices are common to lean case teams that wield data, technology, and creativity as an edge against their more monolithic, data-phobic adversaries.
In my experience (whether litigating with them or against them) it’s the lean and stable teams that tend to be more resourceful and more successful. They intelligently invest their time only in the things that matter. They frequently experiment with new technology while their technophobe counterparts wait for it to go mainstream. They use data to drive decisions: such as whether to bring or not bring a particular motion; whether to hire a specific attorney or firm (some firms and attorneys have decidedly better track records before certain judges, but inferior records before others). And they’re always looking for new data to give them an edge.
In contrast, needlessly large teams tend to consume more processing power per every bit of information. They have lots of all-hands-on-deck meetings where “when everything’s been said and done, more is said than done.” And they often silo critical information across an archipelago of disparate minds in a manner that makes it difficult to make critical connections. And that, my friends, is no way to win a case.
How clients and lean firms can use data and LegalTech to obviate money as a weapon.
So, how do you stay lean and leverage technology and data to overcome resource disparities? Here are some suggestions for in-house teams that manage litigation and a heads up to firms that are competing for their business:
Does the firm lean into technology and data? Can they provide concrete examples? If, for example, a firm you’ve hired is recommending that they file a motion, ask them how often motions of that kind have been successful in front of your specific judge in the last three years. If they can’t express that as a percentage, then they’re not data savvy.
Do your firms understand and use court analytics? When your team decides to file a motion that you know or suspect will be unlikely to succeed, ask the firm whether they can identify the most recent outlier motions that have been successful before that judge on the same topic. If they don’t know how to identify those motions and the favored authorities and arguments they contain, again, they’re not data savvy.
Utilize analytics tools in-house. If you manage any volume of litigation, you should be able to get answers to Nos. 1 & 2 yourself. Tools exist. And they are incredibly useful when managing outside firms to spot check their decisions. Yes, they cost money, but the cost is nowhere near the cost of picking the wrong firms or attorneys or filing pointless motions that annoy your judges and erode your credibility. You may need that credibility later.
Use AI to increase efficiency in Discovery. Discovery is expensive. eDiscovery is very expensive. Ask your firm what platforms they use and whether they use AI-based tools to minimize expenses and review time, especially if your opponent is going to try to bury you in a tsunami of marginally relevant documents.
Regularly audit your firms’ commitments to technology. Here are some questions to ask and things to consider:
Does your firm use technology to do more with less?
What data do they gather and use and why?
Do they build their own tools in-house (a trend) to give their clients a proprietary edge?
Do they assess opposing attorneys using anything more sophisticated than sending out a firm wide email asking for anecdotes?
What steps does a firm take when it comes to optimizing testimony, the vast majority of which takes place out of sight during depositions (which you rarely read)?
Does your firm use data to prepare for those depositions, to anticipate the documents that will be used, the questions that will be asked, the tactics that may be employed?
Does your firm (or you for that matter) even know what your own witnesses have said in other cases on topics that your current witnesses will be asked about today?
All this data, my friends, is accessible. All you need to do is know where to look.
6. Audit Spending Disparities After Trials. Finally, once a trial concludes, there is often an opportunity to learn how much your adversary spent litigating the case. In-house and outside attorneys should pay very close attention to this, as it can be a crib sheet for understanding how efficiently your own team deployed its budget relative to the results achieved.