What Will Litigation Cost?

The question asked in every initial consultation when suit has been filed or when settlement seems uncertain.

And, a question clients should ask throughout the attorney-client relationship.

The truthful, but dissatisfying, answer: It depends.

It depends upon you, the other person, the other attorney, and the complexity of your situation.

That is not, though, the end of the answer. While no attorney can guarantee the cost if charging an hourly rate, an attorney can give estimates for certain tasks that add up to an overall picture of the potential cost.

For example, the cost of litigating a case depends upon:
– how many court appearances are scheduled and for how long;
– what access to information you/the client has and how much information must be obtained from the other party and other sources;
– what discovery tools are used (Interrogatories, Request for Production of Documents, Requests for Admission of Facts, and Depositions) and how broadly or narrowly tailored;
– whether the court orders mediation and for how long;
– how complicated your situation is;
– how much advice you/the client seeks;
– whether other professional or expert witness services are required (for example, to value assets);
– your actions and reactions in the case, including how reasonable or unreasonable your goals are; and,
– the least certain of all – how the other party and attorney act and react in the case.

The biggest obstacles to accurately estimating the total cost are:
1) The fact that my client and I only controlling our actions and reactions – not those of the other person and other attorney; and,
2) How emotions impact decision-making.

Family law litigation is extremely emotional because it touches on the most fundamental parts of who we are and how we feel:
– failure as a spouse or parent,
– grieving the loss of the relationship and life life as you know it,
– questioning of one’s identity as roles are redefined to divorced spouses and/or separated parents, and
– fear about the future – for one’s self and children – and how this fuels beliefs about what is best.

Cost is driven by time worked representing you. At the least, ask about how much the trial is likely to cost based upon the amount of time scheduled (or likely to be scheduled) and attorney’s estimate of trial preparation time, then multiply that by the attorney’s hourly rate. Do this for each court appearance, deposition, and court-ordered service (such as, mediation) as well. Ask what types of experts might be needed and their costs. This will give you only an idea of the potential minimum cost if the case goes to trial – without any other work being done.

The more “homework” you do, the more you are likely save. The more aware and careful you are about how often and how long you communicate with your attorney and any paralegals also saves costs.

Budget how much you are willing to spend to resolve your case and discuss that with your attorney. Take that amount into account when deciding whether you can afford litigation, how much time to put into any particular task, and whether to accept or reject a settlement offer.

Ask, at the outset, how reasonable and realistic your position is. Can the court actually do what you want? Will litigation cost more or less than the value of your goals?

And, once representation is underway…
Review your attorney invoices to understand how time is being spent on your case and ask questions throughout the representation about what certain tasks will cost, how necessary certain tasks are, and what homework you can take on.

As the discovery process unfolds (Interrogatories, Request for Production of Documents, Requests for Admission of Facts, and Depositions), ask your attorney how necessary each option is and whether requests can be narrowed, depositions time-limited, or deadlines extended.

When time to decide whether to hire an expert, ask again about the cost of various options and how any particular expert compares with the cost and services of others (including whether other experts are willing to testify; not all are).

Every avenue pursued adds to the cost. If your approach is to leave no stone unturned, that comes at a cost. Ask yourself and your attorney whether those avenues are worth it. Because the litigation process is an ongoing assessment of costs and benefits – the cost of litigation compared with the benefits of settlement or potential recovery at trial.

Consider your attorney’s advice very carefully. Paying for advice that a client just ignores is not a good return on investment – and may just increase costs. Likewise, check in with your attorney – regularly – about how reasonable and realistic your position is and how much emotion may be affecting your decision-making. If cost is a concern (as it almost always is), ask your attorney at every opportunity how much a particular task will cost, what will be gained, and the chances of success.

As with settlement, the cost of litigation is not just financial – it tolls your emotions, time, and energy. Only you can put a value on these. Understand that these – especially emotions – often fuel litigation, which in turn, add to the cost. Weigh your emotional reactions to a settlement offer against the financial advantages/disadvantages of the proposal, the cost of continued litigation, and the likelihood of success at trial.

Litigating a family matter is a very personal and emotional experience. Approaching litigation from a cost-benefit perspective is the path to understanding and managing the cost on the journey to resolution.

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