The “My Case is Too Complicated to Resolve Efficiently” Caper

This case is for all the Dinosaur Lawyers who cling to the excuse, “The case is too complicated to resolve efficiently!”

Case Details: Environmental engineering malpractice case. Insured was retained to do a Phase I Environmental Site Inspection assessment by the purchaser of 10 manufacturing plants. After the purchase, the purchaser sued the engineer consulting company and two engineers claiming $1.5 million in damages to remediate 12 various alleged missed environmental issues by the engineer consulting company across the 10 plants. Due to conflict, engineers had separate counsel.

Dinosaur Lawyer Approach

The engineers’ assigned (Dinosaur) counsel’s litigation strategy included: the retention of experts, a physical assessment of all 10 plants, an extensive written discovery (100,000+ documents) and 20+ depositions for a pre-Motion for Summary Judgment legal/expert. In sum, they went to the old faithful, conventional, unimaginative, connect-the-dots litigation plan (which is not worthy enough to be called a litigation STRATEGY).

Dinosaur Lawyer Defense Budget: $500,000 through discovery (and $1.0M for two defense firms).

Disruptive Lawyer Approach

Although the case appeared to be complicated (given it was an environmental engineering matter involving several manufacturing plants), it really wasn’t.

Although I love to say I’m a high-brow environmental E/O lawyer, at the end of the day, this case was basically 12 property damage claims, averaging $125,000 each. Regardless of how much discovery we did, it would likely go to trial anyway because it would boil down to a “battle of the experts.” This was so obvious.

So, rather than two law firms billing $1 million in fees through formal discovery (and double that for trial) on a case with about $1.5 million in damages (and fees shifting if plaintiff wins, which would be $1.5 million in the plaintiff’s white shoe law firm fees), I suggested, “How about we employ the right mindset and do this instead?”

  • Freeze discovery and mediate in 120 days after the steps below have been completed.
  • Parties agree to limited discovery focused on the 12 issues
    • 10 questions/interrogatories per issue
    • Document requests tailored to the issues
    • Parties’ experts must provide affidavit outlining
      • Professional malpractice or counterpoint opinions and legal support
      • Specific damages as a result
      • Verified remediation damages incurred
  • Parties then provide position statement outlining their positions and countering the adverse party’s position

Defense Budget: $50,000 (or $100,000 for two defense firms)

Disruptive Lawyer Strategy: Because four of the 12 properties had the bulk of the $1.5 million in damages, we focused most of our attention on attacking, discrediting and mitigating those claims, making the actual exposure low enough it would not be worth it for the plaintiff to litigate. Specifically, we exploited the fact that if the case didn’t settle, the plaintiff would pay the white shoe law firm perhaps $2 million to litigate over perhaps $700,000 in damages – which would impact fee shifting arguments.

Mediation: The carrier opted for our strategy. And so, as planned, we did the discovery and did indeed find solid counter and mitigation arguments to the plaintiff’s claims. We then proceeded to mediation and settled confidentially in the range of $500,000, which was 50% of the Dinosaur Lawyer’s legal budget through discovery. And both defense firms jointly billed around $100,000 to get the resolution.

Crystal Ball Projection: If the Dinosaur Lawyers had their way, the carrier would have likely paid $1 million in legal fees through discovery, and then the Dinosaur Lawyer would have recommended mediation because “MSJ is not viable as most of the issues will involve a battle of experts.” And, this most certainly would have led to a higher indemnity payment because by that point the plaintiff would have wanted to recoup the $500,000+ they paid their counsel to litigate.

In sum, the right Mindset and Skill Set made what seemed like a very complicated and expensive case into a case resolved well below the cost of defense.

Fees Saved:  $900,000