Far too many lawyers use uncertainty as an excuse for taking too long, costing too much, circulating draft documents too late to allow for meaningful review, making unsettling strategic shifts late in the game, and failing to achieve results. “I can’t predict or control what a judge or jury will do.” “I didn’t know the other side would . . . .” And so on.
Litigation is war, and like war, it’s expensive, uncertain, and involves high stakes. Yet, just as we expect our military commanders to make and execute a plan and accomplish an objective, clients should expect the same of their lawyers. It is precisely the uncertainty and unknowns of litigation that make planning and informed expectations so important. Of course, the landscape can and will change. Adjustments will have to be made. That doesn’t minimize the importance of developing a plan and working toward a goal, however. As Eisenhower said, “in preparing for battle I have always found that plans are useless, but planning is indispensable.”
As a client, at any point in litigation, you should have a clear understanding of what your lawyer is doing, why he or she is doing it, when it will be done, and an idea of how much it will cost. You deserve that and you need it in order to engage in a cost/benefit analysis to decide whether settlement makes sense. Litigation is filled with enough surprises; an unexpectedly high lawyer’s bill needn’t be another one. Although the plan, and sometimes the goal, will change, it’s imperative that you walk down a set path toward a known goal that is more than just “winning the case.”
As a lawyer, I find that making meaningful litigation plans and budgets is time-consuming and difficult. With so much unknown about the future, committing to a definite plan with budgeted costs can be scary because I have set benchmarks by which I can be judged. Instead, it’s much easier to march toward a general goal of winning by taking things a step at a time, and deciding what the next step will be once I get there. But taking things a step at a time lacks focus and direction. It can also cause a client to fall into the dangerous trap of reacting to an opponent rather than proactively steering litigation in a desired direction. Because many lawyers do not plan or budget, proactive lawyers executing a plan can control a case by executing instead of responding.
Plans will have to change as a case progresses and budgets may require adjustment as a result. That’s the nature of litigation. However, if you hire a lawyer to lead you through the woods on a long journey, it’s in everyone’s interest that you have an idea of how you will make it through and what it will take to get there. If your lawyer is wary of committing to such a plan or budget, then you should be wary of committing to that lawyer.