Litigation Cost Control : Civil Litigation Lawyer & Attorney : Fred Fresard Law Firm : Alternative Billing, Retainer Contracts

Other than attorney’s fees, one of the most expensive components of complex litigation is expert consultant fees. In a high exposure product liability case, for example, the attorney may retain experts in various disciplines such as accident reconstruction, toxicology, biomechanics, economics, mechanical engineering, failure analysis, etc. With each expert having an hourly rate well into the three figures, expert fees can add up quickly. In the past, when clients complained of exorbitant expert witness invoices, the typical outside counsel response was, “Well, that’s what he costs.” No more. We owe it to our clients to provide them with predictability and reasonab

leness in their litigation costs. It is our job, as the team member dealing directly with the experts, to control our clients’ outlays by getting the expert to commit to a budget, and then holding the expert to those original cost estimates.

The first step in controlling expert costs is at retention. Upon retaining an expert, the cost-conscious trial attorney should require a budget from that expert as part of the retention agreement. Litigation budgets for experts are best broken down by phases. The expert should be able to provide a reasonable estimate of the time and costs that the expert and his team will incur for the initial review phase of file materials. If a scene or product inspection is required, travel costs, travel time and inspection time can all be estimated with reasonable certainty. The next phase is the actual discovery phase. In this phase, the expert must prepare an expert report or assist in preparing responses to expert interrogatories. In addition, the expert will likely be required to give a deposition. Of course, prior to the report or the deposition, any testing or demonstrations that the expert intends to present at trial must be performed and included in the budget. The final expert budget phase is the trial preparation and trial phase. This portion of the budget involves preparation for trial testimony, attendance at trial, and testimony at trial. Again, estimating travel time and attendance time is not overwhelmingly difficult. If the expert is kept on the stand longer than anticipated, supplemental budgets can be e-mailed to the client from the war room during trial.

Both the client and counsel must understand and be receptive to the occasional need for expert budget supplementation based on unforeseen developments. Budgets are by definition best estimates based on the preparer’s experience in similar situations. Reasonable clients understand that sometimes events take unexpected turns, and additional unforeseen work is required. Accordingly, the trial lawyer must have an understanding with his client and with his expert as to the circumstances under which amended or supplemental budgets may be submitted, and the factors that will be considered on whether to approve them. With a trusting and open relationship, client and counsel can work together to control litigation costs while ensuring a successful outcome.
 

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The third component of a successful remote examination is conducting the deposition itself. The examiner has two options -- telephone or video-conference. The method chosen depends on a variety of factors that ought to be weighed jointly by client and counsel.

Telephone depositions are cheap, and they the least technologically advanced of the two options. So, they don't cost much and are the least likely to have a technology breakdown. They come with one major drawback, however, and everyone who has participated in a teleconference knows what that drawback is -- nobody can see each other. In a telephone deposition, the examiner is unable to provide and perceive body language. The body language of the examiner if as important as that of the witness. In a telephone deposition, the examiner is unable to use techniques such as leaning forward to indicate interest, or looking at ceiling tiles to indicate boredom. Similarly, the witness's body language provides cues to the examiner about where to go with her questioning. Seasoned examiners can quickly detect whether a witness is nervous about a particular line of questioning just by observing eye movements or nervous habits. The loss of the ability to provide and perceive body language is a major drawback of the telephone deposition, and must be carefully considered when deciding on the format of the remote examination.  

One "deal killer" for me regarding telephone depositions is when opposing counsel is present in the room with the witness. The disadvantage of being on a "blind" telephone line while your opponent is in the room with the witness outweighs any cost-saving advantages. This is especially true with expert witnesses. The examiner has no way to know if the attorney and witness are passing notes or otherwise signaling each other regarding answers. The examiner is unaware of chats in the hallways during breaks. The examiner essentially has no control, or very little control, over the conduct of the deposition. And control is everything in an adversarial process. 

A video conference examination, on the other hand, can resolve many of the issues presented by a telephone examination. Being able to view the witness allows you, as the trial attorney, to assess how this witness will play before the jury. In addition, you can direct the witness to particular exhibits, and see whether the witness gets flustered or otherwise has difficulty locating data. Combined with internet document display software such as Web ex or Live Meeting, the examiner can present exhibits to the witness “on the fly” and get the benefit of a spontaneous response to the exhibit.

The video conference deposition, however, comes at a price. Although the technology has greatly improved in the last five years, remote examinations by video conference still present a high risk of technology failure. Sometimes, the voice track does not match the video track, or the video is jerky or blurry. Sometimes documents will not display correctly.  Video conferencing gets better every year, however, and will continue to provide enormous cost savings in the future.

Remote examination of a deponent is a very powerful cost savings tool. However, as with most other litigation efficiency tools, the practitioner must exercise his judgment and only use remote examination when it will not compromise his ability to prosecute or defend his case. Working in concert with the client, the cost-conscious litigator can determine which witnesses are best suited for remote examination, and which ones warrant the cost of traveling to a deposition. As with all litigation cost control measures, sound judgment and close consultation with your client provides both you and the person paying the bills with the greatest benefits.
 

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