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Are civil litigation solicitors ready for cost budget estimates, form H and case management?

There seemed to be an air of unease in a room full of young litigators recently.   The occasion was a seminar about e-disclosure hosted by the Leeds Law Society.  The seminar, presented by John Lapraik and Steven England of K2 / Millnet, was informative and well attended.  Most of the attendees appeared to be young civil litigation solicitors, enjoying (one hopes) the early years of their careers.

During his presentation John referred to the upcoming need for cost budgeting and completing form H (the spreadsheet lawyers will need to record their case budget estimates and present to court for review and approval).  He asked how many of the attendees had received any kind of training about filling in form H.  Less than 40% put their hands up in response.  Hence, the air of unease.  When John then made some remarks about form H almost inevitably leading to increased emphasis on more overt project management skills, the sense of unease in the room seemed to become more palpable.

John also suggested the new cost budgeting regime will increase the likelihood of litigators needing to have a ‘plan B’ with regards the cost budgets and individual items therein.  Lawyers will need to be prepared to justify their estimates and perhaps be prepared to put forward alternatives in light of proposals made by the other side or the judge.  Some may say this is no more than being simply tactically aware and well prepared, something litigators are trained to do and learn to improve upon over time as they acquire experience.  True perhaps, but the point being made was this behaviour will need to move beyond being tactical and become something which is a more fundamental aspect of conducting litigation.  Litigation lawyers will need to know how cost estimates have been arrived at and how any changes, actual or proposed, may affect them (hence, the need for a plan B).  Tactical skills in litigation can indeed be picked up and refined over a number of years, but the new cost budget and case management rules take effect from 1st April 2013 and will apply to the vast majority of multi-track cases where damages claimed are less than £2 million.

Regular readers will recall that I have blogged previously about the cost management pilot projects, the ‘cone of uncertainty’ affecting project estimations, some well-known estimation heuristics litigators could adopt as a starting point for the estimation exercise as well as noting that HH Simon Brown QC believes that solicitors will need to become more like quantity surveyors in the way they approach cases (see also the New Law Journal, 5th April 2012).  In the NLJ article referred to Judge Brown set out his approach to cost management, as per the cost management pilot scheme.  He left readers in no doubt that, so far as he is concerned, cost budgeting and the attendant case management will be far from a rubber stamping exercise where the estimates put forward by litigants’ legal representatives are accepted at face value .  Notwithstanding concerns raised in some quarters that judges have been provided with insufficient training to be able to dispose of cost management issues appropriately, some other judges are also feeling confident about the new approach tested in the pilot projects and they are looking forward to taking a more proactive approach regards cost budgeting and case management.  This is of course exactly what Lord Jackson wanted when he set out his proposals.

One of the progenitors behind the rise of legal project management in the USA was the growing complexity of the discovery process, particularly bearing in mind the ever increasing volumes of potential electronic evidence.  Managing complex discovery often requires the application of project management skills.  Once this is appreciated is it but a short step to recognise the benefits a project based approach can bring to managing other aspects of litigation and, indeed, other aspects of legal practice and service delivery.

Interestingly, discovery is one of the two ‘Manhattans’ often referred to by Judge Brown as particularly drawing his attention when considering cost budgets in the pilot projects (the other Manhattan is witness statements).  In his NLJ article he also explained other aspects of his approach and noted that, after April 1st 2013

if civil litigation practitioners have not prepared themselves [about creating cost budgets and being able to defend them] they will have a nasty (and expensive) shock

If the reaction of those young lawyers at the e-disclosure seminar is anything to go by, some tremors are already being felt.  Arguably in future those wanting a successful career as civil litigators are going to have to either develop their own project management skills or be able to call upon a cadre of legal project management specialists for assistance.  The latter is not yet widely available, so what should litigators do in the meantime?

One obvious answer is for litigation lawyers to receive some immediate legal project management training.  In this context the need is especially clear and return on investment should be realised quickly.  The training could begin by considering approaches to form H and then work through potential wider implications for case and practice management. If any readers would like to discuss this further, then please contact me.

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