A 1955 essay in The Economist opened with the famous proclamation, “Work expands so as to fill the time available for its completion.” This observation could refer to “staffing” as well as “time,” according to Michael N. Rader, a patent attorney and litigator with the Boston-based IP law firm Wolf, Greenfield & Sacks, PC. Keeping your legal team small is the surest way to control the cost of any matter, including a patent case, Rader says. In fact, most patent cases can be handled successfully with a team of two to three lawyers and a paralegal. “A lean team makes budgeting easier,” he points out. “Calculate the billings of the team based on their hourly rates, the expected activity in a particular month or quarter given the case schedule, and the estimated proportion of each attorney’s time that is available for the case.”
Here are Rader’s additional suggesting for controlling patent litigation costs:
- Prepare a detailed quarterly or monthly case budget as soon as the court enters a scheduling order. Revisit and update the case budget every month or two as the case progresses. While the distribution of billing over time may evolve — for example, savings may be achieved early in the case due to deferrals of work that will occur later — the overall cost should remain the same absent a game-changing event.
- Enter time promptly and check the billing at the middle and end of each month to ensure the case remains within budget. If the team is in danger of exceeding a monthly budget, take corrective steps. “Litigation billing should not involve surprises,” Rader says.
- Use common sense. Patent litigators should read every patent-related decision of the Federal Circuit within days of its issuance — and not on the client’s nickel. Check billings to make sure you’re not being charged for the basics of keeping current. Preferably, the entire firm or patent group should meet regularly to discuss the more important cases. “These practices ensure that attorneys are up to speed on the current state of the law and don’t need to burn a lot of time figuring out which arguments will work in court,” Rader says.
- Develop case themes from the outset and update them regularly to keep the legal team focused. In today’s economy, litigants don’t have the luxury of chasing down leads that don’t relate directly to winning their case.
- Prioritize tasks. If the judge disfavors summary judgments, a summary judgment motion isn’t likely to be worth the effort. Motions to dismiss that will require the plaintiff to re-plead don’t represent a sensible strategy, either. And rather than demanding that the opposition implement an electronic search protocol that yields a million pages of documents, shoot for a targeted search with a fraction of that yield.
- Cooperate with opposing counsel. Civility is more efficient than scorched-earth tactics, Rader says. Avoid motions to compel, which are almost never necessary and disliked by judges.
- Abide by deadlines and hold the other party’s feet to the fire. Time extensions almost always lead to greater overall cost.
- Involve a business manager and in-house counsel in supervising the case from the beginning to ensure that your litigation strategy matches your business goals and your legal fees don’t balloon out of proportion to those goals. Scheduling meetings or calls on a weekly or even daily basis ensures that outside litigators understand their marching orders.
- Although settling is the surest way to reduce legal expense, positioning the case for settlement requires clear commitment and planning for trial. An opposing party who sees clearly that your case is being prepared well for trial will be willing to pay more as a defendant in a settlement — or accept less as plaintiff — than one who only sees paper being pushed around without a clear trial strategy. “In short, whether you hope for settlement or trial, you must litigate the case to win,” Rader says. “By applying a few basic rules and a healthy dose of common sense, you can win without breaking the bank.”
Source: IP Frontline