How Litigation Is Like Baseball
By Andrew Longstreth
November 02, 2009
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No, we're not going to be comparing David Boies to Mariano Rivera in this post, although they are both Hall of Fame closers. We're instead taking advantage of World Series fever to talk about another subject that inspires great passion: the economics of litigation. But stick with us. We promise the baseball metaphor will prove relevant.Hot off the presses is The American Lawyer's 2009 special litigation issue, The Big Shake-up. The issue considers all sorts of changes the Great Recession has wreaked on the litigation landscape, from the new enthusiasm for litigation boutiques to FINRA arbitration on steroids. (No, that's not the baseball tie-in.)
One of the magazine's most provocative pieces is Douglas McCollam's comprehensive analysis of how the economic crisis has affected the standard law firm billing model for litigation. As we've noted time and time again on this blog, litigation isn't providing the countercyclical boost many firms had hoped for when the recession began, particularly as clients grew increasingly resistant to the old big-firm style of litigating, which called for vast armies of lawyers to bill vast numbers of hours. As McCollam points out, when clients start demanding value for their litigation dollars, the megafirm economic model runs into trouble.
That's where baseball comes in. McCollam writes that litigation, like baseball, "lends itself to precise measurement." And that spells bad news, McCollam argues, for litigators, who are often selling their skills in cases where the outcome is nearly a foregone conclusion. The point was made eloquently by Jeffrey Carr, general counsel of FMC Technologies and a longtime advocate for what's come to be known as alternative billing.
"Litigators like to say what they do is more art than science," Carr told McCollam. "But that's bullshit. If you have a database, it's amazing how consistent outcomes are--employment cases, patents, personal injury. It's a range [of damages] of about 5 percent, one standard deviation from the mean."
Like we said, the piece is provocative. There are plenty of litigators who can instruct Carr on the perils of the outlier cases that don't fit his standard deviations. After all, even Mariano blows a save once in a while.
