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It is not a fight for love and glory, but it is the same old story. For at least the 33 years I’ve been practicing, people have been concerned about the costs of civil adjudication.
Yet, go look at some complex commercial litigation (cases that are bet-the-company, or significant enough to be an issue for senior management), and you will see something astounding. There are cases with hundreds of time-keepers creating enormous coordination problems; huge bills for motions that have no realistic chance of success or tactics pursued with little regard for how they contribute to an ultimately-favorable outcome. There are massive discovery fights over issues with little or no benefit, staggering ediscovery expenses and bills paid largely without question or meaningful control.
Of course, this is not how every case is handled; nor is it how every firm handles cases. But it should not happen at all. This adjudication is not just too expensive, it is bad. Overlitigation is counterproductive. Courts and arbitrators lose patience when they perceive lawyers to be asserting every argument, bad or good, with equal certitude. Adjudication without an endgame in mind is expensive, high-class, well-credentialed flailing.
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