"Zealous advocacy" has taken on new meaning during these difficult financial times. This may be the era of survival of the smartest and most agile attorneys – those who can find efficient, economical and beneficial ways to represent their clients? best interests, including using a mediator for private case management. The following is a compilation of interviews conducted with many attorneys with whom I have mediated.² The combined business acumen and lawyering wisdom is shared with you here.

Changes in Financial Relationship

In commenting on the current economic environment, one attorney observed, "Nobody can afford to litigate now. They can't afford to pay their lawyers and can't afford to pay a judgment." More than before this attorney checks out a prospective defendant's assets very carefully. "Getting a judgment against an insolvent defendant is the worst."

Another attorney won't let a client flounder. If he is unwilling to represent a client who cannot afford his fees, he will refer the client to a young colleague, guide the colleague and receive some fee by the time the case concludes.

Some clients don't have the money to pursue their cases as aggressively as they might want. To keep costs low, one attorney now refuses to let the opposing counsel bait him into an argument that could become unnecessarily expensive for the client. "It takes two to argue," he says, but adds that he doesn't hesitate to file a discovery motion when he needs to. In civil disputes one attorney tries not to sue; if that can't be avoided, he reduces his hourly rate and accepts a smaller retainer than he would customarily.

Generously looking for payment alternatives is another attorney's strategy. If billing by the hour is not economically possible, there are alternatives such as fixed fee, contingency or part contingency. She's open minded to alternatives to hourly billing and is even considering taking credit cards. She finds a way to work out a payment plan with the client.

Several attorneys advise clients who are in pro per. These clients do as much of the litigation work as possible and appear on court call. If the case goes to trial the attorneys try the case on the condition that they get paid the monies due them before starting.

Changes in Strategy

One attorney suggests, "Do only those things necessary to win the case. What will the trial brief look like? Most litigation devices, discovery and motions don't win the case and are very expensive." Attorneys also commented that they put off expensive discovery until after a mediation, if there is one. In this way the expensive discovery is then avoided.

Practicing smarter by avoiding unnecessary battles that are costly to his client is another attorney's game plan. If opposing counsel serves a request for production of irrelevant documents that seems excessively burdensome, it might be better to object to production and to turn over the documents. Sometimes it is easier and less costly to comply than to protest.

In cases where Case Management Orders are customarily agreed to among counsel and ordered by the court, such as in construction defect cases, it may be possible to open a discussion about a limitation on discovery. Almost all attorneys caution that they must be very careful about discussing a limitation on discovery with opposing counsel since that may be perceived as a sign of weakness.

It is not necessary to have a "scorched earth" mentality in discovery according to another attorney. "It's all negotiation no matter what you're doing. Efforts to agree on a limitation on discovery is not a sign of weakness, it's a sign of common sense," comments this attorney who works hard to establish relationships. He believes it's the relationships he has with other attorneys that save his clients money.

Private Case Management

How can reasonable attorneys keep a lid on discovery, motions and other costs of litigation when they are hesitant to suggest it to opposing counsel? One of the best approaches is by using a mediator for private case management.

As one of the attorneys interviewed commented, "Mediators and judges can suggest things attorneys can't suggest to each other. A party will listen to the judge or mediator when they won't listen to their own attorney." As important, a conference call with a mediator to discuss setting a mediation can be used as the platform for a conversation to address the mediator's question "What do you need from each other to be completely ready for the mediation?" When the conversation is opened by the mediator the attorneys are taken off the hook, they suffer no loss of face and can finally make progress.

Frequently, conference calls to set a mediation are also used to address case management issues. During one recent call, with coaxing, both counsel set out what they needed from the other in terms of written discovery and limited depositions, and then agreed to a very specific schedule. They included penalties for non performance as well as provisions to meet and confer in the event of alleged breach of the agreement. Counsel could also consider an expedited review of alleged breach by a private Special Master other than the mediator for all discovery disputes and motions. The conference call was extremely productive, and helped counsel complete minimal and inexpensive discovery before the mediation. The mediator can touch base with counsel periodically to keep matters on track.

A great benefit of private case management conference calls with a mediator is the option to schedule them at a mutually convenient time, as opposed to having the court schedule them many months into the future. The private case management conference call can be scheduled to provide ample time to cover all issues, unlike a court CMC where the judge takes only enough time to set a trial date and possibly a mediation completion date.

Conclusion

These very difficult and challenging economic times for clients and attorneys are an opportunity to bring out the best. The best in attorneys might take the form of finding ways to continue to serve clients by creating new fee arrangements, by working more efficiently and avoiding unnecessary and costly discovery and motions, and by making use of a mediator to provide a safe platform for case management to keep a lid on costs.

Endnote:

Paul Fisher has resolved many hundreds of disputes as Mediator since 1986, and has heard hundreds of cases as Arbitrator since 1978. Paul has been a full time mediator since 1991. From 1971 until 1991, he was in a litigation practice. He is an adjunct professor of law at the Straus Institute for Dispute Resolution, Pepperdine School of Law. In 2001 Paul was named to the Distinguished Panel of Neutrals of New York's CPR International Institute for Conflict Prevention & Resolution. In 2002 he received the Los Angeles County Board of Supervisors Award for Case of the Year. In 2006 Paul was a discussion leader at the Harvard - International Academy of Mediators conference. Paul is a nationally published author, and frequent speaker. He has been selected as a 2007, 2008 and 2009 Southern California Super Lawyer in the area of dispute resolution.