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On explaining the cost of litigation to clients

“What’s it going to cost?”

I venture to guess that each and every attorney who has a litigation practice has been posed with this question by an existing or potential client.

Putting ourselves in our clients’ shoes, there is nothing as frustrating as hearing “I don’t know” as the answer. When I call the electrician or the roofer or the plumber (oh… the joys of home ownership), I expect to be told how long the job is going to take and what the job will cost. I do not want to hear from the plumber, “Well, it will cost me x to come out on a service call and then, depending upon what I find, the cost could be anywhere between something ending in one zero or something ending in a lot of zeroes.”

Unfortunately, the same answer I hate receiving is the very same answer I frequently have to give: “I don’t know.” Litigation attorneys, unlike estate planning attorneys, for example, cannot charge on a flat-fee, per-document basis. In the world of litigation (setting aside the brave new world of limited scope representation), we have minimal predictability in terms of the time that our litigation cases will require and, hence, what the client will be charged.

So, how can we give the “I don’t know” answer to clients in a way that doesn’t make it as infuriating for them to hear? Far from suggesting my way is the best way or the only way, here are three steps I often employ.

First, I believe a bit of empathy goes a long way. We can explain that we understand how frustrating our response is going to be. I like to tell clients how I am looking for certainty of cost when I contact a service professional so that I can budget accordingly. And I hate being on the receiving end of the answer I am about to give.

Second, I believe that it is critical to clearly explain the interrelation between the inherent unpredictability in the scope of our work and the litigation costs. I often use a sports analogy, comparing litigation to football in that I can control what happens when I have possession of the ball. However, the other side will also get possession of the ball and I have little control over what play they will choose to make. They could file a motion to which I would have to respond. They could issue ten deposition subpoenas or they could issue none. They could decide to settle the case early on or they could decide to take a scorched earth approach. And this unpredictability can cause the time that I am required to spend on their case to vary wildly.

Third, where there is some predictability, I think that we can try to budget for clients what each discrete task along the way is likely to cost. When we do “have possession of the ball”, we can predict fairly well how much time we will spend drafting the Complaint or drafting written discovery. When these tasks are on the horizon, offering some level of certainty is often well-received by clients.

How do you respond when someone asks, “What’s it going to cost?”

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