Reprinted from the May 17, 2004 Daily Journal
In this economic climate and in the current competitive legal marketplace, virtually all companies are focused on reducing the expenses associated with retaining outside counsel to handle litigation and transactions.
When deciding which law firm to retain, companies are keenly interested in hourly billing rates. Indeed, in some instances the amount of the hourly billing rates is the decisive factor in selecting one law firm over another.
Acknowledging clients' concerns regarding billing rates, law firms often assign less-experienced attorneys with lower billing rates to handle the project without sufficient guidance from a more-senior attorney. Under this approach, the "big guns" step in toward the conclusion - for example, at the time of trial or to put the finishing touches on a complex transaction. But this approach to case management is based on a false premise: The less-experienced lawyers' lower rates will result in reduced fees. Our experience shows that staffing with experienced lawyers who are actively involved in the matter from the outset is more cost-efficient.
And even more important, the involvement of senior lawyers from the outset generally leads to better results.
At first blush, the notion that staffing cases with more-experienced attorneys will result in lower fees may appear counterintuitive. But several examples illustrate why this principle holds true.
When a company is a defendant in litigation, its objective often is to defeat the plaintiff's claims without incurring the burden and expense of trial. Its lawyers are charged with implementing an appropriate strategy to achieve this goal, such as a motion for summary judgment. Law firms routinely use such motions as a training ground for young lawyers, allowing them to spend significant time conducting legal research on topics ranging from procedural to basic substantive principles governing the causes of action at issue.
The junior lawyers also spend countless hours drafting and revising the moving papers without the necessary experience or guidance from senior attorneys to help them know which arguments are likely to be unsound because of triable issues of material fact or other reasons. Even if the lawyer ultimately succeeds, the cost to the client can be significant.
A seasoned litigator who knows what it takes to win summary judgment motions provides a tremendous benefit to the client. He or she will implement a discovery plan designed to create the record necessary to win the motion, by preparing focused interrogatories and requests for admission, obtaining documents relevant to the key issues, asking targeted deposition questions and other strategies.
Perhaps more important, the lawyer can avoid tangential discovery efforts that are unlikely to affect the ultimate outcome - and that cost the client money. When the time comes to draft the moving papers, the experienced lawyer will be able to rely on the discovery that he or she has undertaken in the case, as well as the lawyer's work product and the knowledge gained from prior cases.
The wheel need not be reinvented, either on legal research or drafting, which results in significantly fewer hours billed and ultimately lower cost.
An analogous situation arises in the context of corporate transactions. In some law firms, junior attorneys are assigned to draft documentation memorializing deals without the input or oversight of more-experienced colleagues. Because of their lack of experience, they may either draft contract clauses from scratch (which takes considerably more time) or rely on documents memorializing prior deals that they themselves didn't draft and that, because of the nuances of the earlier transaction, sacrifice the quality of the work product.
Conversely, experienced lawyers can rely on their own prior work product and steer the drafting of the documentation far more efficiently. They also have the breadth of knowledge to spot issues that probably are not apparent to a junior lawyer, and draft necessary provisions without meaningfully increasing the costs to the client.
Aside from cost considerations, the involvement from the outset of experienced lawyers often leads to better results. In the context of litigation, some firms believe that junior lawyers should handle all of the day-to-day responsibilities of the case, including making decisions regarding which client documents to produce (or withhold) in response to discovery, how to respond to interrogatories, and what questions to ask at depositions.
If the case proceeds to trial, the senior trial lawyer takes the case as he or she finds it, and, because of decisions made without his or her earlier involvement, may not be able to present the case as would have been preferred.
In contrast, an experienced lawyer involved at the outset and in all strategic decisions can use his or her experience to guide the engagement. This does not mean that the experienced lawyer cannot delegate appropriate tasks to junior colleagues. Indeed, an experienced attorney knows which tasks can and should be delegated to produce the best result at the lowest cost. Thus, the extra expense of early involvement of a senior attorney is well-justified from a cost-benefit standpoint.
The same is true of corporate transactions. A less-experienced lawyer may draft a contract provision without appreciating all of its ramifications. Without consideration by an experienced lawyer, the provision may become a problem for the client. In fact, depending on the type of agreement at issue, the contractual provision may spawn burdensome and expensive litigation. An example is a boilerplate provision included in a retail sales agreement that later is alleged in a class action to constitute an unfair business practice. The time charged by the experienced lawyer to review the documentation is a short-term investment that is more than justified to avoid a long-term problem.
We do not suggest that less-experienced colleagues have no place in law firms or that they cannot perform important tasks. To the contrary, many outstanding young lawyers have solid skills now and will be leading their respective firms. Great care must be taken to provide young lawyers with appropriate training and experience to ensure that they grow and achieve success in their careers. But doing so should not come at the expense - both literally and figuratively - of the firm's clients, who deserve the most cost-efficient and highest-quality representation available.
The involvement of experienced counsel works to achieve this objective.
Barry W. Lee, Robert A. Zeavin and Brian T. Hafter are attorneys with Steefel, Levitt & Weiss, a national law firm that handles both transactional and litigation services. The firm has offices in San Francisco, Los Angeles and Stamford, Conn.