{"id":2194,"date":"2013-10-04T15:28:40","date_gmt":"2013-10-04T15:28:40","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=2194"},"modified":"2013-10-04T15:28:40","modified_gmt":"2013-10-04T15:28:40","slug":"how-to-manage-the-cost-of-civil-litigation","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2013\/10\/04\/how-to-manage-the-cost-of-civil-litigation\/","title":{"rendered":"How to manage the cost of civil litigation"},"content":{"rendered":"

Management should be easy<\/span><\/h1>\n

Managing the\u00a0cost of civil litigation should be easy when it involves technical issues.\u00a0 But that doesn’t necessarily mean\u00a0that it will be inexpensive.\u00a0 Nor that you will know at the\u00a0start exactly what the final cost will be.<\/p>\n

What it does mean is that there is a simple process that can\u00a0be followed.\u00a0 A process\u00a0to keep you and the client informed at different stages of\u00a0litigation of\u00a0the costs-to-date and the estimated\u00a0total costs.\u00a0 And keep you and the client\u00a0informed with an increasingly accurate assessment of final costs.\u00a0\u00a0There is a\u00a0process for\u00a0managing the financial realities of civil litigation (Ref. 1).<\/p>\n

Why must cost be\u00a0managed?<\/span><\/h1>\n

The cost of civil litigation must be managed in some way because:<\/p>\n

    \n
  1. Civil litigation can be expensive (Ref. 1)<\/li>\n
  2. Accurately estimating the cost of civil litigation is difficult (Ref. 16, 17)<\/li>\n
  3. Clients generally don’t understand the financial realities of litigation (Ref. 1)<\/li>\n<\/ol>\n

    If you can measure something you can manage it.\u00a0 Put another way, originally,\u00a0‘What gets\u00a0measured, gets done’ (Ref. 2).<\/p>\n

    If you are measuring something on a regular basis you can manage and control it.\u00a0\u00a0If you take the measure of the costs of civil litigation – estimate,\u00a0up-date, and evaluate the costs, periodically,\u00a0for example,\u00a0at the different stages of\u00a0litigation, you can manage and control the costs.<\/p>\n

    Managing and controlling costs means ensuring you input the most\u00a0up-to-date costs into your periodic re-assessment of the merits\u00a0of continuing an action.<\/p>\n

    Categories of cost in civil litigation<\/span><\/h1>\n

    Fortunately, what could be easier than noting three main categories of cost in civil litigation involving technical issues?:<\/p>\n

      \n
    1. Legal costs<\/li>\n
    2. Cost of the role of the expert\u00a0at the different stages of an action, and,<\/li>\n
    3. The cost of the forensic engineering investigation<\/li>\n<\/ol>\n

      Key stages in cost estimating<\/span><\/h1>\n

      Stages in civil litigation<\/strong><\/span><\/p>\n

      Then obtaining estimates of these costs and updates at the following\u00a0key stages of civil litigation as recommended in practical handbooks of civil litigation (Ref. 1):<\/p>\n

        \n
      1. Initial preparation and pleadings,<\/li>\n
      2. Preparation and completion of discovery,<\/li>\n
      3. Preparation and completion of ADR (Alternate Dispute Resolution)<\/li>\n
      4. Long-range preparation for trial, and,<\/li>\n
      5. Short-range preparation for trial.<\/li>\n<\/ol>\n

        I added Item #3 on ADR to the recommendations in\u00a0legal handbooks\u00a0because new technical data might\u00a0arise in discovery that would merit an update\u00a0of\u00a0estimated costs.\u00a0 Also, because the vast majority of cases do not proceed to trial (Ref. 1).<\/p>\n

        You as counsel would estimate your legal fees at these successive key stages and add them to the other two categories of fees.<\/p>\n

        You would work with the expert in estimating the second category of costs, the role of the expert at the different stages of civil litigation (Ref.\u00a03 to 14).<\/p>\n

        The professional engineer would estimate the third category, the cost of the forensic engineering investigation.<\/p>\n

        Stages in forensic engineering investigation<\/strong><\/span><\/p>\n

        Updated cost estimates\u00a0can be given for the forensic engineering investigation at the following\u00a0stages\u00a0of\u00a0an investigation:<\/p>\n

        (Ideally, much of the engineering investigative work would be complete by\u00a0key stage\u00a0#2 in the above, Preparation and Completion of Discovery.\u00a0 In fact, in a perfect world, civil litigation wouldn’t be entertained at all in a case with technical issues until a forensic engineering investigation had been completed, the cause of an engineering\u00a0failure or an\u00a0accident determined,\u00a0and the technical merits of the case assessed):<\/p>\n

          \n
        1. Visual assessment of the site and preliminary planning of the investigation<\/li>\n
        2. Field investigations – often after documenting damage to the structure, also after determining site conditions<\/li>\n
        3. Research<\/li>\n
        4. Follow-up investigations<\/li>\n
        5. Data analysis<\/li>\n<\/ol>\n

          Counsel\u00a0would take these updated investigative costs from the\u00a0professional engineer, add\u00a0them to the legal costs, and\u00a0to the cost of the role of the expert in litigation,\u00a0to obtain\u00a0total, updated, civil litigation\u00a0costs, and\u00a0the client advised.<\/p>\n

          Then do this again at\u00a0key stages of the engineering investigation and\u00a0at key stages of the civil litigation process.\u00a0 The merits of the case would be reviewed on each occasion and the\u00a0client updated so that he or she could make a decision on whether or not to continue the action.<\/p>\n

          The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is\u00a0encouraged in legal handbooks to assume a full scale trial when estimating costs (Ref. 1).<\/p>\n

          Reporting costs to the client<\/span><\/h1>\n

          It’s important when counsel is reporting costs-to-date\u00a0plus estimated future costs to express these costs as a percentage of the cost of the failed structure and\/or the likely award.\u00a0 Do this for estimated costs that err on the high side.\u00a0 This percentage can be quite enlightening with regards to the wisdom of continuing the action.<\/p>\n

          Few clients realize how much it costs to become involved in\u00a0litigation (Ref. 1).\u00a0 Nor how\u00a0difficult it is for counsel and the expert to estimate total costs (Ref. 16, 17).\u00a0 Some cases and\u00a0engineering investigations become\u00a0very complicated.\u00a0 A stepped approach to managing costs and frequent updates\u00a0helps the client deal with the\u00a0uncertainty.<\/p>\n

          The approach is not unlike the cost control procedures in the field of project management – constant re-evaluation and updating based on new data (Ref. 15).<\/p>\n

          It’s difficult to accurately estimate the cost of forensic engineering investigation\u00a0because of the unknowns (Ref. 16, 17).\u00a0\u00a0Counsel should help the client to understand, however,\u00a0that\u00a0the difficulty\u00a0estimating costs decreases as technical data becomes available during\u00a0key stages,\u00a0and the accuracy of the cost estimate increases.<\/p>\n

          Counsel must ask for these updated cost estimates at key stages <\/em><\/strong>because it takes time to update the scope of a forensic engineering investigation and update a cost estimate, but, it’s worth it.<\/em><\/p>\n

          Summary<\/span><\/h1>\n

          To summarize<\/strong>, as part of your on-going assessment of the merits of a claim or of a defense,<\/p>\n

            \n
          1. Obtain the very approximate forensic engineering investigative costs from the engineer at the start of an action,<\/li>\n
          2. Confer with the professional engineer and\u00a0together determine\u00a0the cost of the expert’s role at each stage in the civil litigation process,<\/li>\n
          3. Add your legal costs to the engineering investigative costs and to the costs of the expert’s role in the civil litigation process to obtain a total cost,<\/li>\n
          4. Brief your client at the start of an action on the estimated total costs and the legal and technical merits of the action, including comments on the difficulty\u00a0estimating costs by you and the expert.<\/li>\n
          5. Then do this again – estimating total costs –\u00a0at\u00a0key stages of the engineering investigation and\u00a0at key stages of the civil litigation process, review the merits of the case again,\u00a0and update the client at each stage, and, finally,<\/li>\n
          6. Express the estimated total costs at each stage as a percentage of the expected award, which can be enlightening.<\/li>\n<\/ol>\n

            It sounds easy managing the cost of civil litigation, and it is easy – a well identified step by step process –\u00a0and counsel and clients can benefit from that process.<\/p>\n

            Counsel does need to\u00a0be alert\u00a0though\u00a0considering that many of you\u00a0handle many files.\u00a0 I’ve heard “…hundreds of files…” by one senior lawyer, “…lots…” by another, and “…dozens…” by a young lawyer.\u00a0 So, be careful and pay attention\u00a0to individual cases and manage the cost of civil\u00a0litigation as\u00a0easily as it can be done.<\/p>\n

            ***<\/p>\n

            The cost of civil litigation and\u00a0the scope of forensic engineering investigation<\/span><\/h1>\n

            Before\u00a0a professional engineer\u00a0can actually estimate costs, the scope of a forensic\u00a0investigation must be planned, based on an initial hypothesis of the cause of the failure or accident.\u00a0 This planning takes time and involves\u00a0identifying:<\/p>\n

              \n
            1. The methods of investigation,<\/li>\n
            2. The tasks associated with\u00a0each method,<\/li>\n
            3. The people, expertise, and skills\u00a0needed to carry out the tasks<\/li>\n
            4. The supplies and equipment needed by the people, and<\/li>\n
            5. The time to carry out the tasks<\/li>\n<\/ol>\n

              Only after the scope of an investigation is developed, and updated at key stages, can the cost of a forensic engineering investigation be estimated.\u00a0 This takes time, estimating, but if done properly the client knows approximately where he’s at cost-wise and where he might be going at any particular stage.<\/p>\n

              The actual scope and cost of a forensic\u00a0investigation comes into better focus as each stage is\u00a0reached and passed.<\/p>\n

              The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is\u00a0encouraged in legal handbooks to assume a full scale trial when estimating costs.<\/p>\n

              And an assumed\u00a0full scale forensic engineering investigation\u00a0that responds to the justice system’s requirement for a thorough and reliable investigation that leads to an objective opinion as to cause.\u00a0 (Ref. 4, 18 to 21).<\/p>\n

              \u00a0References<\/span><\/h1>\n
                \n
              1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, <\/em>5th ed. 2004, <\/em>pg. 14, Thomson Carlswell<\/li>\n
              2. Personal communication, Osmond, NSLS,\u00a0Jack, Owner, Affinity Contracting and Environmental Ltd., Halifax and Ball, P.Eng., Ken, Former manager, Imperial\u00a0Oil Refinery Ltd. (“What gets measured, gets done”)<\/li>\n
              3. Steps in the civil litigation process<\/strong>, published, August 28, 2012<\/li>\n
              4. Steps in the forensic engineering investigative process with an Appendix on costs<\/strong>, published July 15, 2013<\/li>\n
              5. The role of a professional engineer in counsel\u2019s decision to take a case<\/strong>, published June 26, 2012<\/li>\n
              6. The role of a professional engineer assisting counsel prepare a Notice of Claim<\/strong>, published July 26, 2012<\/li>\n
              7. The role of a professional engineer assisting counsel prepare a Statement of Claim<\/strong>, published September 11, 2012<\/li>\n
              8. The role of a professional engineer assisting counsel prepare a Statement of Defence<\/strong>, published September 26, 2012<\/li>\n
              9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents<\/strong>, published October 4, 2012<\/li>\n
              10. The role of a professional engineer assisting counsel during Discovery<\/strong>, published October 16, 2012<\/li>\n
              11. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR)<\/strong>, published November 16, 2012<\/li>\n
              12. The role of a professional engineer assisting counsel prepare for a Settlement Conference<\/strong>, published November 29, 2012<\/li>\n
              13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference<\/strong>, published December 12, 2012<\/li>\n
              14. The role of a professional engineer assisting counsel prepare for Trial<\/strong>, published, December 19, 2012<\/li>\n
              15. Project Management Institute, A Guide to the Project Management Body of Knowledge, <\/em>Most recent edition, Newtown Square, Pennsylvania, USA<\/li>\n
              16. Difficulty estimating the cost of forensic engineering investigation, posted July 23, 2013<\/li>\n
              17. Why the difficulty estimating the costs of\u00a0forensic engineering\u00a0investigation?, posted September 1, 2013<\/li>\n
              18. Civil procedure Rule 55, Nova Scotia<\/li>\n
              19. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation<\/em>, New York, 1989<\/li>\n
              20. ASCE, Guidelines for Forensic Engineering Practice<\/em>, New York, 2003<\/li>\n
              21. ASCE, Guide to Investigation of Structural Failures<\/em>, New York, 1986<\/li>\n<\/ol>\n

                Bibliography<\/span><\/h1>\n
                  \n
                1. Bent, James A. and Humphreys, Kenneth K.,\u00a0Editors, Effective Project Management Through Applied Cost and Schedule Control, <\/em>Marcel Dekker, Inc., New York, 1996<\/li>\n<\/ol>\n

                  Update<\/strong><\/span><\/h1>\n

                  This item is an update of a recently published item on managing the cost of civil litigation.\u00a0\u00a0The update\u00a0basically\u00a0involved expanding the section above, ‘Why<\/strong> must cost be managed?<\/strong><\/span>‘.\u00a0\u00a0The section is expanded\u00a0by adding and explaining\u00a0an important managerial concept, and it’s application to civil litigation, that, ‘If you can measure something you can manage it’, or, put another way,\u00a0‘What gets measured, gets done’.<\/p>\n

                   <\/p>\n","protected":false},"excerpt":{"rendered":"

                  Management should be easy Managing the\u00a0cost of civil litigation should be easy when it involves technical issues.\u00a0 But that doesn’t necessarily mean\u00a0that it will be inexpensive.\u00a0 Nor that you will know at the\u00a0start exactly what the final cost will be. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[16,17],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2194"}],"collection":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/comments?post=2194"}],"version-history":[{"count":33,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2194\/revisions"}],"predecessor-version":[{"id":2227,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2194\/revisions\/2227"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=2194"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=2194"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=2194"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}