Can't Budget a Trial? Find a Different Line of Work
I often hear litigation attorneys talk about how they know how to budget a case for workup, but when it comes to trial, “all bets are off.” I have worked up hundreds of complex cases under controlled fee arrangements, and tried dozens, and I couldn't disagree more. Like a plumber or a doctor, any lawyer who knows his business knows how much it costs to do things. An experienced trial lawyer should have no problem estimating how much it will cost to try a case.
Trials have a certain starting date, a reasonably predictable ending point, and a defined team. Discovery, on the other hand, can take a lot of twists and turns. When preparing a budget for the discovery phase of a case, the litigation attorney is faced with the challenge of anticipating events that may occur over several years. Much of what will be done depends on what opposing counsel does. You might be in court on motions every week, you might not. If things really heat up, you might need to add bodies 
to the team. The potential scenarios are infinite, and even the most experienced litigator sometimes finds himself sheepishly asking the client to approve an amended discovery budget.
A trial budget is easier to prepare. You are dealing with a finite period of time and a pre-determined number of people on your trial team. Every trial judge I’ve ever had has demanded that the parties tell him how long the trial will take. If we can stand up in court and say it, why can’t we say it in a budget?
So, every trial budget should have a starting and ending point – the day the trial starts, and the day we tell the judge it will end. Combine the set period of time with your known trial team and you are are on your way to a budget. For example, let’s say we told the judge trial will take four weeks. Now we’ve got our time box. Then we put together our trial team. Three attorneys and two paralegals will do just fine. Now we know how many people will be billing at what rate (the client is paying hourly in this example) for how many days. Everyone deserves a day off, so let’s say 6 days per week for 4 weeks. Nobody can reasonably work more than 16 hours per day. Now it’s simple math. Billable rate times 96 hours per week for each timebiller. Then multiply by four. Ta da! You’ve got your legal fees budgeted. Yes, it’s that easy.
Trial costs are no more difficult. The hotel gives you room rates, you know what plane tickets cost, and you know what it costs to feed the team. Every expert in the business is now capable of preparing budgets for prep and testimony time. I have had no problem getting budgets out of my courtroom technology gurus, exhibit preparation companies, copy services and jury consultants. Add up these numbers, and now you’ve budgeted your trial costs. Add the fees and costs together, and now your client has a reasonable idea what it will cost the company to try this case.
Of course, all budgets are subject to amendment. Things can happen that were unforeseeable and beyond our control. I once had a trial budgeted for four weeks that went five months due to the judge's poor docket control. But those instances are rare. We owe it to our clients to apply our experience and advise them what it’s going to cost to try a case. It’s our job to put them at ease and give them predictability and control over trial costs. If you can’t prepare a trial budget, you are sending a message to your client that you don’t know your own business -- and that’s a message nobody wants to send or receive.
Imagine you need to hire a courier service for your law firm. A business associate gives you a name, and you call the courier in for a meeting. He tells you he is the best courier in the business. You ask how much to deliver a package across town. This is where is gets weird. He says he can't tell you. It's too unpredictable. He could get caught in traffic. The recipient office could be closed, and he may have to go back twice. He might have other jobs that day. But, he says, if you agree in advance to pay him whatever it ends up costing, he'll send you an invoice after he does the job. You, of course, are outraged. Does he not know his business? Does he not know his overhead so he can calculate a fair price? You throw him out of your office and call someone else. 
