Anatomy of Lawsuit.

ANATOMY OF A LAWSUIT
A Client’s Analysis and Discussion of a Multi-Million Dollar Federal Lawsuit
Ronald H. Gruner
President
The Vallex Fund
January 8, 2008
Revision 1.0
© 2008 Vallex Investments, Inc. All Rights Reserved.

TO THE READER
This study is based on an actual multi-million dollar federal lawsuit litigated during 2004
through 2006. As the CEO of the plaintiff company I was involved in case strategy, served as a
witness, and approved the legal bills. Although intensely involved at times, my other
responsibilities kept me from truly understanding many of the issues driving the case and the
resulting costs for both us and the defendants. Now retired, I have that time and have used at
least some of it to conduct a quantitative and qualitative analysis of the lawsuit.
Why? Because, simply put, being an engineer I am curious as to how things work, and how they
might be improved. And few would argue that our country’s approach to civil litigation could
not be improved. For many reasons it is often a very inefficient process. Yet very few
laypersons involved in litigation, whether senior executives or private individuals, understand
why litigation is so often complex, inefficient and expensive.
The purpose of this paper is to put a representative lawsuit “under a microscope” not only to
study its anatomy, but also to help understand the ecosystem civil lawsuits occupy that so often
make them frustrating, time-consuming and expensive. It is best read with its companion paper,
A Call for Legal Entrepreneurship, which expands on the legal ecosystem discussing law’s
transition from a profession to a business, issues with self-regulation and in particular how more
entrepreneurship within the process of law will improve the practice of law.
This is a long and at times tedious paper. For readers not having the time or inclination to read
the entire paper the following guidelines should help to make selective reading more productive:
To Understand… Read… Pages…
How individual lawyers billed for their services. Hourly Billings 3-6
How annual rate increases and time tracking practices Impact of Annual Rate Increases and 6-8
affected lawsuit costs. Time Tracking
How various professional level billings contributed to the Hourly Billings: by Professional Level 8-10
lawsuit cost.
The specific costs and issues surrounding the lawsuit’s Work Product Analysis
major work products. - Complaint 17-18
- Discovery 31-34
- Expert Reports 34-36
- Settlement 37-88
An example of how discovery disputes become so Case Study of a Discovery Dispute
expensive, time-consuming and frustrating. - Court Docket with Commentary 20-28
- The Dispute as a Microcosm of 28-30
Today’s Discovery: Lessons Taken
How the lawsuit compared to law firm financial metrics. Industry Metrics Analysis 40-43
How the cost of the lawsuit’s work products might Comparative Analysis 44-51
compare to those in the business world.
The lawsuit’s total costs and the two factors which Summary 52-54
contribute to the high cost of litigation.
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As the reader you may wish to contribute to the discussion. We urge you to do so and would
appreciate your thoughtful perspectives, criticisms and suggestions regarding the issues herein.
You may submit these at…
http://www.VallexFund.com/Forum
The Vallex Fund is an investment firm investing exclusively in the legal marketplace. Our
firm’s mission is to encourage, finance and support entrepreneurs focused on helping to make
legal services more efficient, effective and broadly available when needed. Additional
information is available at VallexFund.com.
Ron Gruner
The Vallex Fund
January 8, 2008

CONTENTS
INTRODUCTION .......................................................................... 1
HOURLY BILLINGS..................................................................... 3
WORK PRODUCTS ...................................................................... 13
INDUSTRY METRICS .................................................................. 40
COMPARATIVE ANALYSIS....................................................... 44
SUMMARY.................................................................................... 52
APPENDICES
A. Expense Categorization ................................................ A-1
B. Expense Allocation........................................................ A-5
C. Billing Records.............................................................. A-7
D. Civil Docket .................................................................. A-8
E. Sources.......................................................................... A-14

INTRODUCTION
Much has been written regarding the costs and issues surrounding litigation today, yet few
concrete case studies are available. This paper investigates these costs and issues based on an
analysis of a federal lawsuit typical of 98 percent of all federal lawsuits – it terminated prior to
trial. We believe the lawsuit is typical of many and hence a good candidate for careful study.
The analysis and discussion in this paper, while critical at times, is not a criticism of the
individuals or their firms representing the Plaintiffs. Nor of the Defendants’ lawyers who
provided their clients a strong defense both in strategy and execution. And certainly not a
criticism of the judges who worked so diligently to sort out the complex, conflicting
arguments made by the litigants with only a tiny percentage of the resources of those
available to the litigants. No, the problems and issues identified are not specific to
individuals or firms, but are, in our opinion, systemic, deeply-rooted weaknesses of the U.S.
civil litigation system.
The lawsuit was filed in federal court in March, 2004 by Direct Report Corporation (the
“Plaintiff”) which operates under the name of Shareholder.com. Shareholder.com provides a
family of shareholder communication services designed to help public companies communicate
with their investors. I founded the company in 1992 and served as its president until January,
2006 when the company was acquired by The Nasdaq Stock Market. The defendants were a
major competitor. Neither a discussion of the lawsuit’s issues or the identification of the
Defendants would contribute to the analysis and have not been included. The lawsuit’s civil
docket is available as a matter of public record.1 The lawsuit was terminated in January, 2006 by
mutual agreement of the Plaintiff and Defendants.
The case was moderately complex. It involved counterclaims by the Defendants, an amended
claim by the Plaintiff, the deposition of eighteen witnesses, discovery and analysis of computer
files, email and other documents, multiple court motions to compel discovery, outside expert
analysis of financial damages and computer files, and three rounds of settlement talks. Two
additional factors complicated the case: i) At the time the Plaintiff filed the lawsuit, the
Defendant company had recently been acquired by another company resulting in indemnification
issues between the Defendant and the acquiring company, and ii) Near the end of the case the
law firm representing the Plaintiff merged with a firm representing one of the Defendants which
required the Plaintiff and Defendant to each retain new law firms due to the conflict-of-interest
arising from the merger.
Figure 1, “Cumulative Legal Expenses,” graphs expenses as the lawsuit progressed. The
Plaintiff’s total expenses during the lawsuit were $2,443,068 and consisted of $1,697,322 in
attorney fees, $619,946 in expert witness fees and $125,800 in law firm out-of-pocket expenses.
These expenses may be small by federal lawsuit standards but they were very significant to the
Plaintiff as a small company.
Our approach to the analysis was to ground it on the most concrete data we had available, the
monthly invoices submitted by the law firms and expert witnesses over the two year period of the
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lawsuit. These billings, excepting certain expert witnesses, were itemized by task and included
the hours and amount charged, the work performed and the individual performing the work.
Figure 1: Cumulative Legal Expenses
$2,500,000
$2,000,000
Out-of-Pocket Expenses
Expert Witness Fees
$1,500,000 Attorney Fees
$1,000,000
$500,000
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From these invoices we constructed a detailed database that documented the thousands of
individual tasks performed during the lawsuit ranging from attending federal court hearings to
photocopying documents. For each task the responsible individual was identified and the hours
and amount billed documented. A total of 3,281 allocations, each defining a specific task, were
made against 1,631 hourly billings records. The methodology is described in Appendix A,
“Expense Categorization.” The detailed billing records are provided in Appendix C, “Billing
Records.”
Using this detailed database as the foundation we then analyzed the lawsuit’s (i) hourly billings
by individual, professional level and task, (ii) resulting work products which comprised the
lawsuit – claims, discovery, expert reports and settlement, (iii) estimated profitability and how
that profitability ranks relative to industry financial metrics, and (iv) compared costs relative to a
theoretical ideal. We conclude this section with a summary of our factual findings, leaving our
observations and conclusions for the paper’s final section.
For clarity, when referring to this paper or its underlying analysis we reference ourselves in the
first person as “we.” When referring to the lawsuit’s participants, we reference them as “the
Plaintiff” and ‘the Defendants.”

HOURLY BILLINGS
We first tabulated hourly billings by individual. Over 95 percent of the $1,697,322 total hourly
billings were generated by ten individuals: two senior partners, two junior partners, four
associates and two paralegals. Table 1, “Hourly Billings by Individual,” provides dollar-ranked
details for these ten individuals.
Table 1: Hourly Billings by Individual

Dollars per Billing Average Percent
Individual and Firm Dollars Hours 8+ Days
Hour Days Hour/Day 8+ Days
1 - Senior Partner A 305,117 597 511 237 2.5 15 6.3%
2 - Associate A 301,202 1,310 230 241 5.4 59 24.5%
3 - Senior Associate A 258,724 878 295 264 3.3 20 7.6%
4 - Junior Partner B 250,005 595 420 97 6.1 32 33.0%
5 - Junior Partner A 146,439 341 430 213 1.6 2 0.9%
6 - Senior Partner B 138,305 199 695 88 2.3 2 2.3%
7 - Paralegal A 79,459 663 120 153 4.3 6 3.9%
8 - Associate B 54,143 187 290 44 4.2 8 18.2%
9 - Senior Associate B 50,663 147 345 55 2.7 2 3.6%
10 - Paralegal B 42,541 224 190 53 4.2 3 5.7%
11 - 47 Others 70,726 346 204 186 1.9 2 1.1%
Total 1,697,322 5,486 309 1,631 3.4 151 9.3%
The lawsuit spanned 101 weeks from the first hourly billing on February 25, 2004 through its
termination January 31, 2006. During that time an average of 3.36 lawyers worked on the
lawsuit each of the 485 work days it covered (101 weeks less holidays) generating an average
11.3 billable hours (5,486 / 485) and $3,500 in billings ($1,697,322 / 485) each day. These
expenses do not include out-of-pocket expenses such as travel and photocopying or expert
witness fees, which will be discussed later.
Near the end of the case the Plaintiff’s law firm merged with a firm representing one of the
Defendants which required each party to retain new law firms due to the conflict-of-interest
arising from the merger. In this paper we call the Plaintiff’s first firm “Law Firm A,” and their
second “Law Firm B.” The Plaintiff engaged Law Firm A for 20 months from late February,
2004 through the end of September, 2005 when they resigned from the case. Law Firm B began
a transition in mid-August, 2005 and assumed the lawsuit from October 1, 2005 through January
31, 2006 when the case terminated.
Firm A’s Senior Partner generated the largest total billings, $305,117, billing 237 days at an
average of 2.5 hours and $1,287 per day. An associate at Firm A billed the most hours, 1,310
hours, spread over 241 days with 59 days, 24.5 percent, over eight hours in length. Her average
day was 5.4 hours and $1,250 per day. The Firm B Junior Partner billed the longest average
days, 6.1 hours per day, the most days, 33 percent, over eight hours and the highest daily expense
at $2,577 per day.
The senior partners at Firms A and B each worked an average of 2.5 hours and 2.3 hours per day
respectively, a slight difference of twelve minutes. On the other end of the billing scale, the

highest billing paralegals at Firms A and B each worked an average of 4.3 and 4.2 hours per day,
an even smaller difference of six minutes per day. In the middle, the highest billing senior
associates at the two firms each worked 3.3 and 2.7 hours per day, or within 36 minutes. These
similarities are intriguing. Today “partners are expected to fine-tune leverage and utilization
with the goal of maximizing profits. For many firms, attention to detail on such things as
staffing mix has brought hundreds of thousands of dollars to the bottom line.”2 Are these billing
similarities examples of fine-tuning to the point that law firms allocate their staffs, from partners
to paralegals, nearly identically, or they just statistical coincidences?
During the lawsuit, 151 billing days, 9.3 percent, exceeded eight billed hours. What consumed
these long days? The actual invoice entries below [with redactions] illustrate how the Plaintiff’s
law firms documented their longest days:
Firm A Senior Partner 04 Mar 2005 11.3 hrs $5,819.50
Review documents and outline in preparation for deposition of [Defendant Witness]; conference with [Firm A
Attorney] regarding strategy; conference with [Client Attorney, Client] regarding [Defendant Witness] issues; take
deposition of [Defendant Witness]; conference with [Firm A Attorneys] regarding [Defendant Witness] deposition
developments, further questions/issues.
Firm A Associate 28 Sep 2005 13.8 hrs $3,243.00

Draft motion to compel; organize document review; meeting with [Expert] regarding statistical analysis; letters to
[Opposing Attorney] and [Opposing Attorney]; organize file transfer.
Firm A Senior Associate 12 Jul 2005 13.3 hrs $4,189.50

Continue review of documents in preparation for [Defendant Witness] deposition; continue draft of deposition
outline; conduct deposition of [Defendant Witness]; conference with client regarding same; conference with [Firm
A Attorney] regarding same.
Firm B Junior Partner 10 Nov 2005 18.25 hrs $7,665.00

Travel to New York; meeting with expert; review of expert materials for expert report.
Firm A Junior Partner 29 Mar 2005 8.5 hrs $3,697.50

Defend deposition of [Plaintiff Witness]; travel back to Boston.
Firm B Senior Partner 01 Nov 2005 11.0 hrs $7,645.00

Review [Expert 1] and [Expert 2] reports; meeting at [Expert 2 in Chicago].
Firm A Paralegal 13 Jul 2005 10.5 hrs $1,260.00

Attend to [Defendant Witness] deposition follow-up matters; prepare materials for 7/14 mediation per [Firm A
Attorney].
Firm B Associate 28 Sep 2005 14.3 hrs $4,147.00

Reviewing email for production at [Law Firm A]. Reviewing docket and pleadings.
Firm B Associate 12 Oct 2005 9.6 hrs $3,312.00

Attended [Plaintiff Witness] deposition; assisted [Firm B Attorney] with document-related issues for same.
Firm B Paralegal 17 Oct 2005 8.8 hrs $1,672.00

Reviewed [Defendant] production in order to identify customer contracts. Provided documents requested by
[Firm B Attorney]. Arranged for copying of documents related to [Plaintiff Witness]. Office conference with [Firm
B Attorney] regarding outstanding tasks. Telephone conference with copy vendor. Telephone conference with
docket clerk regarding Motion for Leave to File Sur-Reply. Reviewed PACER docket in order to identify
outstanding motions. Provided documents requested by [Client Attorney]. Created timeline of events
surrounding the alleged intrusions.

Although every top-billing individual worked two or more eight-plus hour days, 78 percent of
these long days were billed by four attorneys. Figure 2, “Hours Billed in a Single Day,” graphs
the hourly billing pattern for these four lawyers. The number of eight-plus hour days is striking.
Figure 2: Hours Billed in Single Day
140
Firm B: Junior Partner
120 Firm B: Associate
Firm A: Senior Associate
100
Firm A: Associate
80
Days
60
40
20
0
<1 1 2 3 4 5 6 7 8+
Hours Billed in Single Day
As a group the four lawyers billed $864,073, just over half the total hourly billings of
$1,697,322. Together they worked 119 days over eight hours with those long days averaging
10.4 billed hours. See Table 2, “Lawyers Billing Long Days.”
Table 2: Lawyers Billing Long Days
Firm A Firm B
Associate Sr. Associate Jr. Partner Associate Total
Total Hours: 1,310 878 595 187 2,970

Total Fees: 301,202 258,724 250,005 54,143 864,073
Total Days: 241 264 97 44 646
8+ Hours Days: 59 20 32 8 119
Percentage 8+ Hour Days 24.5% 7.6% 33.0% 18.2% 18.4%
Average 8+ Hours: 10.1 9.8 11.6 10.1 10.4
Max Hours: 13.8 13.3 18.3 14.3 18.3
The Firm B Junior Partner put in the longest day at 18.3 billed hours. A third of his days were
over eight hours, averaging 11.6 billed hours when working over eight hours. The Firm A

Associate worked 241 days with 24.5 percent of those days over eight billed hours. As a group,
18.4 percent of the days worked were over eight hours averaging 10.4 hours.
These long days must have been exhausting given the intensity of legal work. Consider also that
a typical day includes approximately two hours of un-billable time for meals, personal needs and
other non-client related activity making their actual day even longer.3
From the client’s perspective, consistently long hours raise the issue of effectiveness. If a lawyer
is 100 percent productive the morning after a good night’s sleep, how productive is she the last
hour of a twelve hour day, or after eighteen hours? If working long days back-to-back, how does
productivity the second or third day compare with the first?
Impact of Annual Rate Increases and Time Tracking
It is an amusing irony that many law firms when taking on a new client, particularly an
unsophisticated one, provide only a simple engagement letter defining the work to be done and
the associated costs. In contrast to the detailed contracts they develop for others, their letter
agreement typically commits the firm to very little. Issues such as rate increases, time tracking
practices and out-of-pocket costs are often not specified. Yet, these costs can be substantial.
Consider annual hourly rate increases. Table 3, “Law Firm A Rate Increases,” documents Law
Firm A’s 2005 actual rate increases for each of their five highest billing individuals.
Table 3: Law Firm A Rate Increases
Dollars per Hour 2005

Firm A
2004 2005 Hours Impact Annualized
Senior Partner 500 515 441 6,617 8,822
Associate 200 235 1,119 39,162 52,215
Senior Associate 280 315 372 13,024 17,365
Junior Partner 420 435 220 3,303 4,404
Paralegal 115 120 643 3,214 4,285
Total 1,515 1,620 2,795 65,318 87,091
As a group, hourly rates increased seven percent with associate rates increasing $35 per hour, or
as much as 17.5 percent. In 2005 the five individuals billed 2,795 hours through September 30
when the firm left the case due to their merger. This resulted in an actual fee increase, starting
the first day of the new year, of $65,318 for the nine months of 2005. This represents a weighted
(by 2005 hours worked per lawyer) average increase of 9.1 percent. Had they continued on the
case, the annualized expense increase for 2005 would have been $87,091. Assuming similar rate
increases annually, these annual increases compound so the total cost increase over a four year
lawsuit would have been well $280,000 for these five individuals alone.
A firm’s approach to time tracking also affects costs. A senior partner billing $600 per hour is
generating fees at the rate of ten dollars a minute. A five minute phone call or email costs fifty
dollars – if it is billed at five minutes. But time tracking practices vary by law firm and even
individuals within a firm. Many firms bill by tenths of an hour, six minute, increments. Others

use increments as high as fifteen minutes. So a $600 per hour lawyer taking a single phone call
during the day might bill anything from $60 to $150 for the five minute call.
Our analysis of time tracking practices suggests that time tracking granularity seems to decline as
the individual’s hourly billing rate increases. Paralegals and associates were diligent in billing in
six minute increments. Furthermore, their billings were distributed fairly evenly across the 60
minute span. Figures 6 and 7 illustrates Firm A Paralegal and Associate billing practices. The
charts graph the days each hourly increment is billed. For example, Firm A Paralegal billed 153
days total. Fifteen days he billed a whole-hour amount (e.g. 1.00, 2.00, 3.00…), eleven days he
billed a tenth of an hour residual (e.g. .10, 1.10, 2.20…) and so forth.
Figure 3: Firm A Paralegal Figure 4: Firm A Associate

35 40
30 35
30
25
25
20
20
15
15
10
10
5 5
0 0
00 10 20 30 40 50 60 70 80 90 00 10 20 30 40 50 60 70 80 90
% H o u rly Inc re m e n t % H o urly In c re m e n t
Both billings are fairly well distributed in tenth-hour increments although the Associate shows a
tendency to bill on the whole-hour (00).
Contrast the above billing practices with Figures 8 and 9 showing the billing practices for Firm A
and Firm B Junior Partners. Firm A Junior Partner billed 213 days with 130 of those days, 61
percent, billed either on the whole or half-hour. Firm B Junior Partner only billed fifteen minute
increments with a distinct upward distribution across the hourly increments.
Figure 5: Firm A Junior Partner Figure 6: Firm B Junior Partner

80 40
70 35
60 30
50 25
40 20
30 15
20 10
10 5
0 0
00 10 20 30 40 50 60 70 80 90 00 25 50 75
% H o urly Inc re m e n t % H o urly Inc re m e n t

In contrast to the undisputed effect of annual rate increases, can we draw any conclusions from
these inconsistent billing practices? No. These billing are we assume absolutely accurate. Firm
A Junior Partner may schedule her day in half hour increments. Firm B Junior Partner may be
hesitant to bill on full hour intervals, so rounds down to 75 percent of an hour. Lawyers,
fatigued by the tedium of entering time allocations, will naturally develop their own styles.
Clients should be aware though, as an article in U.S. Business Litigation, commented “Rounding
up can easily inflate a bill by 15% to 30%, if not more, depending on how frequently and to what
extent it is used. Rounding up when done to the nearest whole-hour, as seen in some invoices,
can result in gross overstatement of the fees incurred.” 4
Hourly Billings: by Professional Level
Let’s now group individuals into professional levels and review their billing patterns. Table 4,
“Hourly Billings by Professional Level,” segments billings for Law Firms A and B including
Law Firm B’s transition period (August – September, 2005) prior to assuming the case.
Table 4: Hourly Billings by Professional Level
Law Firm A Law Firm B

Feb/04 - Sep/05 Transition Oct/05 - Jan/06 Total
Hourly Fees
Senior Partners 307,098 62,029 76,276 445,403
Jr. Partner & Sr. Associates 159,382 48,907 202,020 410,309
Associates 581,285 19,439 94,016 694,740
Paralegals 101,661 3,668 41,542 146,871
Total 1,149,426 134,042 413,854 1,697,322
Hours
Senior Partners 600 89 110 799
Jr. Partner & Sr. Associates 371 116 481 968
Associates 2,278 64 298 2,640
Paralegals 839 20 219 1,079
Sub-total 4,089 290 1,108 5,486
Leverage 6.82 3.26 10.1 6.87
Dollars per Hour
Senior Partners 511 695 695 557
Jr. Partner & Sr. Associates 429 421 420 424
Associates 255 303 316 263
Paralegals 121 182 190 136
Average 281 463 374 309
Not including the expert witnesses, 47 individuals submitted hourly bills during the lawsuit: five
senior (equity) partners whom we assume are partnership owners, seven junior partners and
senior associates, 19 associates and 16 paralegals. The four professional levels and their
associated rates are:

Senior Partners (5) ................................. $500 - $695
Jr. Partner & Sr. Associates (7).............. $350 - $499
Associates (19)....................................... $200 - $349
Paralegals (16) ....................................... $ 95 - $199
The impact of leverage as discussed earlier is clear from Table 4. Senior Partners billed 799
hours while all others billed a total of 4,687 hours (968 + 2,640 + 1,079) for a 6.87 leverage
ratio. Firm A’s leverage is 6.82 (4,089 / 600) which may be more representative. These
calculations assume that only senior partners are equity partners – partners with an ownership
interest – while all others, including Junior Partners, are not.
Had the case progressed into the pre-trial and trial phases it is possible the leverage ratio would
have decreased. Likely not. The earlier phases, involving the filing and defending of the
complaint and discovery, were rich in work requiring associates and paralegals: legal research,
motion writing, document review, deposition preparation and so forth. Trials and their
preparation are intense though and likely to consume considerable effort and expense.
Across the entire lawsuit, the average billing rate was $309 per hour. Average hourly fees
ranged from $121 for Firm A Paralegals to $695 per hour for the Firm B Senior Partner.
Firm A billed 4,089 hours during their 20 month period and Firm B billed 1,108 hours during
their four month engagement; an average of 204 hours per month for Firm A and 277 hours for
Firm B. Firm A’s average per hour rate was $281 while Firm B’s was $374 per hour. During
their six-week transition period Firm B billed $134,042 and 290 hours. Their average billing rate
during the transition was $463 per hour.
Except for Junior Partner and Senior Associates, Firm B was considerably more expensive per
hour than Firm A. An argument can be made for higher Senior Partner fees due to more
experience, better skills or other value the client might receive. But it is our opinion as a client
that it seems hard to justify paying Firm B 24 percent more for basic associate work and 57
percent more for paralegal work much of which is clerical in nature and priced at an annualized
rate of nearly $400,000.
The combination of more hours per month and higher hourly billing rates resulted in Firm B
billing an average of $103,464 per month versus $57,471 for Firm A. Was the Plaintiff receiving
$46,000 more a month in value from Firm B? Although they did excellent work, that’s very hard
to say. As we will discuss in the Experts section later in the analysis, Firm B was intensely
involved with the financial and technical experts to complete the filing deadline. On the other
hand, Firm A filed and defended the original complaint, conducted a complex discovery and
court-mandated settlement effort during their engagement.
To better understand how the Plaintiff’s firms managed high workloads we analyzed hourly
billings during each firm’s peak three month period. See Table 5, “Peak Billing Months.”

Table 5: Peak Billing Months
Dollars per
2005 Dollars Hours
Hour
Firm A
March 120,133 371 324
April 101,087 406 249
May 118,934 431 276
Total 340,153 1,208 282
Firm B
September 116,650 252 462
October 181,633 523 347
November 153,587 376 408
Total 451,869 1,152 392
During March, April and May of 2005 Firm A was conducting intense document and deposition
discovery as well as filing and defending multiple court pleadings. During September Firm B
was transitioning onto the case. Through October and November they were conducting
depositions and working with the expert witnesses to assure the reports were thorough and
completed on time. During these peak months, the two firms’ average hours varied by less than
five percent, another billing similarity as we have noted before. Firm B was considerably more
expensive due to their 39 percent higher ((392 - 282) / 282) average hourly fees.
It may have been possible to predict this significant rate differential. The American Lawyer’s
annual “Am Law 200” survey tracks several useful financial metrics including Revenue per
Lawyer. If we compare the two firms’ Revenue per Lawyer found in the 2006 Am Law 200
survey5 (based on 2005 results) with the firms’ hourly billing rates found in Table 4 (excluding
the Firm B transition), we find a remarkably close correlation. The ratio of the two firms’
Dollars per Hour is nearly identical to the ratio of their Revenue per Lawyer derived from the
survey. See Table 6, “Correlation of Dollars per Hour and Revenue per Lawyer.”
Table 6:
Correlation of Dollars per Hour
and Revenue per Lawyer
Firm B Firm A Ratio

Dollars per Hour (Table 4) 374 281 1.331
Revenue per Lawyer (Am Law 200) 770,000 574,227 1.341
Clearly, a law firm’s hourly billing rates, their policies regarding billable hours and their staff’s
productivity all have a significant effect on client costs. Professionals justify high billing rates
on their experience, productivity and resulting value to the client – an assertion that is often
difficult for clients to confirm.

Hourly Billings: by Task
The final stage of our hourly billing analysis was to allocate the work defined in the billing
statements into specific tasks as a precursor to studying the lawsuit from a work product
perspective. As discussed in Appendix A, 3,281 allocations, each defining a specific task, were
made against 1,631 hourly billings records. The results are available in Appendix C, “Billing
Records.” The twelve task categories were:
Hearings ..................Meetings with the court and directly related work

Pleadings .................Work related to Plaintiff and Defendant court filings
Research ..................Legal research including case law and statutes
Discovery ................Plaintiff and Defendant fact discovery except depositions
Depositions .............Deposition conduct and defense and directly related work
Experts ....................Communication with expert witnesses and review of their work
Opposition...............Communication with opposing counsel except court and settlement
Client.......................Communication with the client except court and settlement
Settlement ...............Settlement meetings and directly related work
Internal ....................Plaintiff’s counsel internal meetings and communications
Administration ........Paralegal tasks such as filing, copying, binding and hand delivery
Other .......................All other non-allocated hourly expenses
Table 7, “Hourly Billings by Task and Individual,” totals both hours and dollars by task and
individual. On the left the twelve individual tasks are grouped into six high-level categories
which are then ranked by dollars spent in each category. Not included are out-of-pocket
expenses and expert witness fees.
The table provides insight into the expenses of conducting a lawsuit. As is typical for most
lawsuits, Discovery, including documents and depositions, was the costliest category at $483,968
and 1,446 hours.
Pleadings and Legal Research naturally group as most pleadings submitted to the court include
legal citations obtained through legal research. Total hourly billings for these two tasks ranked
third at $297,099 and 1,019 hours.
Expert Witness Support by the Plaintiff’s lawyers consumed 457 hours at an average cost of
$445 per hour for a total cost of $203,303, ranking fourth in spending. These costs only include
lawyer fees and not those for the experts themselves. These expenses will be discussed as part of
our Work Product analysis. At $445 per hour, Expert Witness Support was the most expensive
task by a good margin on an hourly basis.
Administrative tasks including clerical, database and other paralegal tasks were the fifth most
expensive category at $130,663 and 983 hours. Finally, Settlement, Other and Hearings tasks
totaled $103,425 and consumed a total of 286 hours.

Table 7: Hourly Billings by Task and Individual
Senior Senior Junior Junior Senior All

Associate Total
Partner Associate Partner Partner Partner Others
A A A B A B A&B Hours Dollars
Discovery
Documents 60 311 162 95 57 39 197 921 294,455
Depositions 105 125 125 59 83 2 26 525 189,513
Total 165 436 287 154 141 41 223 1,446 483,968
Communications -
Internal 155 150 101 53 54 35 80 628 237,314
Opposition 66 149 86 24 44 0 41 411 137,216
Client 82 45 46 33 30 13 7 256 104,334
Total 303 344 232 110 128 48 128 1,295 478,864
Pleadings & Research -
Pleadings 35 282 162 44 37 18 65 643 197,190
Legal Research 8 126 114 1 2 1 126 377 99,909
Total 43 408 276 44 38 19 191 1,019 297,099
Expert Witness Support 35 21 25 253 22 70 31 457 203,303
Administration - 6 4 - - - 973 983 130,663
All Other -
Settlement 32 69 19 21 5 14 - 159 58,244
Other 12 24 29 12 4 7 20 109 38,205
Hearings 7 3 5 - 2 - 1 18 6,977
Total 51 96 53 33 11 21 21 286 103,425
Total Hours 597 1,310 878 595 341 199 1,566 5,486 1,697,322
Total Dollars 305,117 301,202 258,724 250,005 146,439 138,305 297,531
It is interesting that Communications – meetings, telephone, email and letters – including those:
i) internal to the law firm, ii) with the opposing attorneys and iii) with their client was a close
second in spending totaling $478,864 and 1,295 hours. Communications between the Plaintiff’s
lawyers and the Defendants’ consumed 411 hours. 628 Hours were expensed by their lawyers
for communicating among themselves. In contrast, only 18 hours were spent attending court
hearings.
If lawyers were as taciturn as judges, litigation would be much cheaper.

WORK PRODUCTS
The previous analysis has focused solely on the hourly fees charged by the Plaintiff’s law firms.
We now begin our analysis of all expenses which totaled $2,443,068 and consisted of $1,697,322
in lawyer fees, $619,946 in expert witness fees and $125,800 in law firm out-of-pocket expenses.
We have analyzed lawyers’ hourly fees in the prior sections. Let’s look briefly at expert witness
and out-of-pocket fees before focusing on our work product analysis.
Expert Witness Expenses
Both sides of a lawsuit often employ outside experts to analyze and render credible, and
presumably independent, opinions on matters of liability and damages. A civil lawsuit requires
that the plaintiff prove both liability and damages. Establishing liability requires proving that the
defendant committed an act which injured the plaintiff in some way. Damages then relates to the
degree of injury, usually expressed as a financial amount for which the plaintiff seeks
compensation.
In late 2004 the Plaintiff engaged two large, well-known litigation-support firms to prepare
expert reports on the liability and damages aspects of their case. Later the Plaintiff also retained
an experienced industry executive with no expert witness experience to prepare a causation
report. The purpose of the causation report was to link the Defendants’ acts alleged in the
liability report with the Plaintiff’s financial injury claimed in the damages report. The cost of the
causation report, under $10,000, was trivial relative the expense of the liability and damages
reports. Table 8, “Expert Witness Fees and Hours,” summarizes the expenses and hours billed
by the expert witness firms. The two firms invoiced a total $619,949 for 2,205 hours of work.
As a group, their average hourly rate was $281 per hour.
Table 8: Expert Witness Fees and Hours
Dollars per
Dollars Hours
Hour
Technical Experts (Liability) 156,243 434 360
Financial Experts (Damages) 463,702 1,772 262
Totals 619,946 2,205 281
Out-of-Pocket Costs
The law firms invoiced their “out-of-pocket” costs for services typically acquired externally.
Table 9, “Law Firm Out-of-Pocket Expenses,” tabulates these expenses, most of which are self-
explanatory. Professional Services included additional clerical support, the industry expert
mentioned earlier and other non-testifying experts. Regarding photocopy expenses, the invoices
did not specify how many copies were actually made, but at ten cents a copy, $28,102 would
make 281,000 copies – an astonishing number in today’s electronic age and a stack of paper 94
feet high. Court Reporter expenses were for stenographers and transcripts taken during
depositions and also included a videographer in one instance. Computer Research expenses were
for Lexis/Nexis and Westlaw, on-line databases, used for legal research.

Table 9: Law Firm Out-of-Pocket Expenses
Professional Services $ 33,149

Photocopies 28,102
Court Reporter 25,970
Computer Research 22,407
Travel, Meals & Related 8,200
Postage, Fax & Express Delivery 5,661
Telephone 1,163
Court Fees 1,148
Total $125,800
Overview of Work Products
Having laid the groundwork we now focus on the work products actually produced during the
conduct of the lawsuit, namely:
 Filing, amending and defending a complaint against the Defendants.

 Conducting fact discovery to obtain all information available regarding the issues
surrounding the lawsuit.
 Developing expert reports to provide informed, objective opinions regarding the
liability and damages of the lawsuit.
 Conducting settlement negotiations.
Since these work products tended to flow in sequence as the lawsuit progressed we also
partitioned the analysis into four time periods named after the primary work product within each
period: Complaint, (Fact) Discovery, Expert Reports and Settlement. Although each time period
was focused on one primary task, these tasks overlapped considerably across periods. In
particular, settlement negotiations extended over the life of the lawsuit with the majority of the
spending actually occurring during the Discovery period.
These efforts involved hourly fees that were either: i) clearly and directly applicable (e.g.
“Review draft of damages expert report.”) or, ii) supportive (e.g. “Meet with legal team to
discuss case issues.”). Similarly, out-of-pocket expenses were generally either clearly direct
such as Court Reporter fees for recording depositions or supportive such as photocopy support.
We allocated the supportive expenses on a pro rata basis relative to the direct expenses. So, for
example, if during a particular period 70 percent of the direct expenses were discovery related
and 30 percent settlement related, 70 percent of the supportive expenses would be allocated to
discovery and 30 percent to settlement. See Appendix B, “Direct and Allocated Expenses,” for a
discussion of the methodology and specific allocations for each work product.
For the entire lawsuit, the direct expenses charged by the Plaintiff’s attorneys were $811,510, or
33.2 percent of total expenses. The Plaintiff’s outside expert witnesses charged $619,946 in fees,
or 25.4 percent. Supportive expenses at $1,011,612 represented 41.4 percent of total expenses.
The total time billed for attorneys, legal experts and paralegals was 7,691 hours, nearly 1,000

work-days at 1,900 billable hours per year. Table 10, “Direct, Expert and Allocated Expenses”
summarizes these various expenses by work product and time period.
Table 10: Direct, Expert and Allocated Expenses
Complaint Discovery Experts Settlement

Feb – Oct Nov – Sep Oct - Dec Jan Sub-total Total
2004 2005 2005 2006
Complaint
Direct Expenses 40,025 - - - 40,025
Allocated Expenses 100,150 - - - 100,150
Total 140,175 - - - 140,175
Hours 453 - - - 453
Discovery
Direct Expenses 34,176 379,116 90,831 5,815 509,938
Allocated Expenses 41,879 579,111 62,576 19,091 702,658
Total 76,055 958,227 153,407 24,906 1,212,596
Hours 238 3,040 415 76 3,771
Expert Reports
Direct Expenses - 49,515 152,151 1,637 203,303
Expert Expenses - 243,596 376,350 - 619,946
Allocated Expenses - 61,083 83,353 1,868 146,304
Total - 354,194 611,854 3,505 969,553
Hours - 1,186 1,905 9 3,101
Settlement
Direct Expenses 3,043 43,722 - 11,479 58,244
Allocated Expenses 3,729 48,841 - 9,930 62,500
Total 6,772 92,563 - 21,409 120,744
Hours 22 292 - 53 367
Total
Direct Expenses 77,244 472,353 242,982 18,931 811,510
Expert Expenses - 243,596 376,350 - 619,946
Allocated Expenses 145,758 689,035 145,929 30,889 1,011,612
Total 223,002 1,404,984 765,261 49,820 2,443,068
Hours 714 4,519 2,321 139 7,691
The Complaint period, from February through October, 2004, was occupied with the preparation
of the Plaintiff’s initial and amended complaints, disputes over jurisdiction, the Defendants’
motions to dismiss, stays of discovery and counterclaim filings and early settlement negotiations.
During this phase 714 hours were billed by the Plaintiff’s attorneys for $223,002 in total fees, or
$312 per hour which includes out-of-pocket expenses. Average monthly costs were $24,778.
The Discovery period, from November, 2004 through September, 2005, was occupied with the
bulk of discovery including interrogatories, document requests and depositions. Eighteen
depositions were taken by the litigants during this period. In addition to the effort devoted to
actually collecting discovery information significant effort was devoted during the period to the
analysis of the information actually collected. Also retained were two expert witness firms, one
to focus on the technical analysis of evidence and the other to calculate the extent of the

Plaintiff’s alleged financial damages. Near the end of the period settlement talks were again
held, this time mediated by a federal judge.
As the Discovery period was concluding the Plaintiff’s original law firm agreed to merge,
pending partnership approval, with another law firm that also represented one of the Defendants.
Once approved, ethical considerations would then require that both firms resign from the case
requiring the Plaintiff and Defendant to retain new law firms. The Plaintiff and Defendant
immediately retained new firms. The Plaintiff provided a six week overlap for their original and
replacement firms starting in August to facilitate the transition. The merger of the two firms was
finalized in late September at which point their new law firm began representing them which it
did through the remainder of the lawsuit. This transition unquestionably increased the Plaintiff’s
costs for which they were later reimbursed by Law Firm A.
Together, the Plaintiff’s attorneys and expert witnesses billed 4,519 hours or $1,404,984 in total
fees. Average monthly costs climbed significantly to $127,726.
The Experts period extended three months from October through December, 2005. Three
expert reports were submitted in mid-November dealing with: i) a liability analysis based on
computer files, ii) a causation analysis, and iii) a financial damages analysis based on financial
statements. During this short period the Plaintiff’s attorneys and expert witnesses together billed
2,321 hours and $765,261. Average monthly costs nearly doubled to $255,087.
Taken together, expenses associated with Discovery and Expert Reports represented nearly 90
percent of the lawsuit’s total cost. Approximately 6,872 hours were consumed in these efforts.
The Settlement period occurred during January, 2006 shortly after the submission of the expert
reports in November. During that time legal work also continued on discovery, the expert
reports and trial preparation in the event a settlement could not be reached. A total of 139 hours
were billed for the month. Total expenses for the month were $49,820.
We next examine each Work Product.

Complaint
Table 11, “Complaint Expenses,” documents the $140,175 in expenses and 453 hours associated
with filing, defending and amending the initial complaint.
Table 11: Complaint Expenses
Complaint Discovery Experts Settlement Sub-total Total

Direct Expenses
Pleadings 36,846 36,846
Hearings 2,792 2,792
Court Fees 387 387
Sub-total 40,025 40,025
Allocated Expenses
Legal Research 51,577 51,577
Document Management 7,102 7,102
Communications 34,793 34,793
Unclassified 6,678 6,678
Sub-total 100,150 100,150
Total 140,175 140,175
Hours
Direct 122 122
Allocated 331 331
Total 453 453
As is often the case, the Defendants upon being served the complaint filed a Motion to Dismiss
and Stay Discovery coupled with a Memorandum in Support of Motion to Dismiss and Stay
Discovery. This was then followed by a legal minuet starting with Plaintiff’s Opposition re.
Motion to Dismiss and Motion to Stay Discovery followed by Defendant’s Motion to Dismiss
for Lack of Jurisdiction and their Memorandum in Support of Motion to Dismiss followed by
Plaintiff’s Memorandum in Opposition re. Motion to Dismiss for Lack of Jurisdiction followed
by Defendant’s Counterclaim against the Plaintiff followed by Plaintiff’s Motion to Dismiss
Defendants’ Counterclaims and their Memorandum in Support re. Motion to Dismiss
Defendants’ Counterclaims followed by Defendant’s Opposition re. Motion to Dismiss
Defendants’ Counterclaims followed by Plaintiff’s Answer to Counterclaim Defendants’
Amended Counterclaims.
This process continued for nearly six months and generated $40,025 in direct expenses for
preparing legal pleadings and attending court hearings. The majority of the expenses, over
$100,000, though were allocated as supportive efforts including legal research which cost nearly
$52,000 for hourly billings and on-line database access fees. In addition, $34,793 was spent for
attorney communications-related expenses involving the Plaintiff’s attorneys communicating
among themselves, with the Defendants’ attorneys and with Plaintiff’s management.
Once it was clear that the case was going forward, brief settlement talks were held which were
unsuccessful.

Although Discovery and Settlement efforts started during the Complaint phase, we allocated 100
percent of the Legal Research expenses to Complaint since a review of the invoices indicated
legal research during this period was focused almost exclusively on Complaint related issues.
Discovery and Settlement expenses together represented 48 percent of the direct spending during
the period. Hence we allocated the balance, 52 percent, of Document Management,
Communications and Unclassified supportive expenses on a pro rata basis to Complaint. See
Appendix B, “Direct and Allocated Expenses,” for specific allocations.
Discovery
During Discovery, both parties sought information from the other side through interrogatories,
document requests and depositions. Discovery efforts occurred in all phases of the lawsuit,
however the majority of discovery expenses, 74 percent, were incurred during the Discovery
phase which extended over eleven months starting November, 2004.
The purpose of the discovery process is to provide all parties with the same information so that
the facts of the case are understood and, ideally, agreed upon. Discovery has been described a
“search for the truth.” In reality, as numerous studies have documented discovery is far too often
an intense effort to keep the entire process as unrevealing, time-consuming and expensive as
possible. This results in multiple discovery requests, motions to compel document discovery,
extend discovery, impound documents, contempt and sanctions, subpoenas and motions to quash
subpoenas, protective orders and numerous other court pleadings.
The sequence starts with one litigant requesting information from the other side. Requests for all
documents concerning a specific topic is a typical example. In practice, at this early stage the
respondent has a great deal of flexibility as to how to respond and may provide the requested
information in full, in part, or not at all. The respondent may claim the effort to provide the
requested information is overly burdensome or disproportionately expensive to produce with
respect to the financial value of the case, for example. Common objections are that the request is
Overbroad; Vague; Not reasonably calculated to lead to the discovery of admissible evidence;
Unduly burdensome.6
If the requestor believes after repeated requests that the information provided is insufficient their
recourse is to file a Motion to Compel with the court. However, before the motion may be filed
Supreme Court Rule 201(k) requires that "every motion with respect to discovery shall
incorporate a statement that after personal consultation and reasonable attempts to resolve
differences the parties have been unable to reach an accord." Attorneys generally interpret this
ruling as the need to “fully brief” the issue before submitting the motion. This process typically
requires three rounds of formal, written communication between the opposing attorneys: the first
by the requestor to document why the respondent’s response to the discovery request is
insufficient, the second by the respondent to reply, and the third again by the requestor to rebut
the respondent’s reply. Once this exchange is complete, the motion and often a supporting
memorandum may be filed with the court. This motion then sets off another round of legal
exchanges in opposition.

Eventually, the process terminates with a court order either granting or denying the motion in
whole or in part. In our experience, this is a difficult process for the court. Often the opposing
arguments rest on arcane technical or financial reasons as to why the information can or cannot
be produced. The court, versed in the law but not necessarily financial and technical expertise,
must then sort through these complex, highly partisan arguments. Often the decision is to split it
down the middle. Knowing this beforehand, opposing attorneys often take their arguments to the
extreme trying to move the mid-point closer to their desired outcome. If the motion is granted,
the respondent either may appeal the ruling or is otherwise presumably compelled to comply.
Once again in practice the respondent often does not, perhaps providing a small amount of
additional information and fresh reasons why all the information cannot be produced. At this
point, the entire process often starts over and continues until either one of the litigants runs out of
money, the court eventually intervenes or the case settles.
The result is that the discovery process is inherently expensive. Discovery battles greatly
increase the expense of litigation. Consider Figure 7, “Motions and Oppositions,” which graphs
the 104 court pleadings filed primarily during the Discovery phase. See Appendix D, “Civil
Docket.” These pleadings were supported by 24 detailed and highly researched Memoranda
either in Support (18) or Opposition (6) of the motion. Not surprisingly, these disputes led to
extensive time delays requiring twelve Motions for Extension of Time during the two years of
the lawsuit, about one every two months.
Figure 7: Motions and Oppositions

20
18 Opposition to Motions
Motions - Other
16
Motions for Extension
14 Motions to Seal / Protective Order
12 Motions to Compel
10
0
4 4 4 04 04 5 5 5 5 05 05 6
-0 -0 l -0 - - -0 -0 -0 l- 0 - - -0
ar ay Ju ep ov an ar ay u ep ov n
M M S N J M M J S N Ja

Case Study of a Discovery Dispute
To help understand how these numerous court pleadings contributed to expense and time delays
during Discovery we now analyze a specific discovery battle. We have selected a discovery
dispute that involved perhaps the most common document in companies today – email.
Our analysis is based on the public documents contained in the lawsuit’s civil docket7 available
through PACER (Public Access to Court Electronic Records). PACER, a service of the United
States Judiciary, allows individuals to obtain case and docket information from Federal courts
via the Internet. Each entry below includes document excerpts as well as the filing date, a
description and the document’s number in the case’s civil docket. The dispute starts with the
Plaintiff’s request for documents.
29 Jul 2004 Plaintiff’s First Set of Requests for Production of Documents ---
The Plaintiff makes 27 specific requests for the Defendants to provide documents and other tangible
things relevant to the lawsuit including request 13, “[Defendant’s] communications with potential
clients between the intrusion date and December 30, 2002.”
25 Oct 2004 Stipulated Protective Order Docket # 37
The court approves a protective order requested by both the Plaintiff and Defendant’s attorneys to
protect confidential information. It states that “Any litigation materials may be designated by any
producing person as ‘CONFIDENTIAL’ or ‘Highly confidential’.” The order defines “Highly
Confidential Information” as any “(a) information that is highly proprietary, (b) a trade secret or other
confidential research or development, (c) information of or concerning clients or prospective clients,
(d) information that a non-party has entrusted to a Producing Party with an expectation of
confidentiality, or (e) information that, if disclosed, would put the Producing Party (or non-party) at a
competitive disadvantage.” This broad definition gives the litigating attorneys tremendous flexibility
in what they define to be highly confidential information.
Once designated as Highly Confidential clients cannot see it; the document may only be disclosed to
outside legal counsel, outside experts and consultants, the Court, the document’s author and its
addressees, and copying and computer services for the purposes of copying or indexing documents.
29 Nov 2004 Plaintiff’s Motion to Compel Production of Documents Docket # 38
Five months after filing its request for documents, the Plaintiff had received few documents
concerning communications with potential clients. After the Plaintiff’s attorneys had “conferred with
Defendant’s counsel and were unable to resolve the issues presented in this motion” they filed a
motion with the court requesting that the “Court compel [Defendants] to produce documents
responsive to Request No. 13 of [Plaintiff’s] First Set of Requests for the Production of Documents
and Things.”
29 Nov 2004 Plaintiff’s Memorandum in Support of the Motion to Compel Docket # 86
SEALED based on Plaintiff’s request to seal the document in Docket # 39 stating “Impoundment is
necessary due to the Defendant’s ‘Confidential’ designation of its Supplemental Interrogatory
Answers, which are discussed within and attached as an exhibit to Plaintiff’s Memorandum.”
13 Dec 2004 Defendants’ Opposition to Motion to Compel Docket # 87

SEALED based on Defendant’s request to seal the document in Docket # 41 stating “Impoundment is
necessary because defendants’ Opposition contains references to, and attaches excerpts from,

transcripts of deposition that must be treated as ‘Highly Confidential’ under the terms of the
Stipulated Protective Order (attached as Exhibit A).”
Since both the Plaintiff’s supporting memorandum and the Defendant’s opposition were sealed, only
attorneys and their designated third-parties could review the arguments made for producing and
withholding the requested documents. The clients could not participate in this process.
5 Jan 2005 Joint Motion to Extend Discovery Phase Docket # 60

The litigants jointly file, and the Court approves, a 60 day extension to the fact discovery phase of the
lawsuit. This in one of twelve extensions requested during the lawsuit. Although fact discovery was
originally scheduled by the Court to conclude February 1, 2005 very little discovery had actually
occurred at the time of the request for an extension. During 2005 additional time extension motions
are filed on March 3, March 17, May 13, June 30, September 16 and December 30.
31 Jan 2005 Plaintiff’s Reply Brief in Support of Motion to Compel Docket # 97

SEALED. The Plaintiff files what is in effect an additional supporting memorandum to their motion
since “Defendants raise new issues in their opposition to [Plaintiff’s] motion…Furthermore, facts
developed in discovery conducted after the filing of [Plaintiff’s] initial brief support [Plaintiff’s]
arguments…”
10 Feb 2005 Court Hearing on All Motions Held Before Federal Magistrate Judge ---
The Court hears oral arguments on 13 motions filed by the litigants including Docket # 38, Plaintiff’s
Motion to Compel. The Judge issues a written opinion (Docket #85) regarding certain of these
arguments on March 1, 2005 and entered into the Civil Docket record the next day, March 2.
28 Feb 2005 Plaintiff’s Second Set of Requests for Production of Documents ---
The Plaintiff’s make their second document request for an additional 48 items including request 80
“[Plaintiff’s] communications with the potential clients identified in Appendix B from the intrusion
date to the present.”
02 Mar 2005 Court Order on Plaintiff’s Motions Docket # 85

The Court issues orders on three Plaintiff’s motions including Docket # 38, Plaintiff’s Motion to
Compel. In the order the Judge summarizes the issues surrounding Docket #38, writing:
“[Plaintiff’s] motion to compel focuses on one document request to which the defendants have not
responded to [Plaintiff’s] satisfaction. Specifically, [Plaintiff} seeks, in its document request number 13,
‘[Defendant’s] communication with potential clients between the intrusion date and December 30, 2002.’ The
defendant’s initial response was a refusal to produce any documents on the basis that the request was, inter alia,
overly broad, burdensome and sought documents that were not relevant or reasonably calculated to lead to the
discovery of inadmissible evidence. Since that time the defendants have offered to provide certain information to
[Plaintiff], but [Plaintiff] remains unsatisfied.
“The parties disagree about the extent of the communications that the defendants should be provided; they
disagree about the time period those communications should cover; and they disagree about the number of
clients about whom the defendants should be required to produce communications. [Plaintiff] has identified 110
clients whose information [Plaintiff] believes [Defendant] misappropriated, and who left [Plaintiff] and became
clients of [Defendant]. The defendants assert, however that some of those clients terminated their contracts with
[Plaintiff] before the date of the alleged intrusions, and that other clients left [Plaintiff] more than six months after
the last alleged intrusion date.
“Despite these assertions, the defendants have offered to produce all communications with the 110
companies identified by [Plaintiffs] that are contained in an internal database known as Focus. [Plaintiff’s]
response to this offer is that the database is likely to only include communications involving administrative
issues, and will not provide the insight [Plaintiff] seeks into how [Defendant] made use of [Plaintiff’s] proprietary

information in marketing toward potential clients. [Plaintiff] also avers that producing only the database might
exclude other communications between individual [Defendant’s] employees and potential clients.
“In addition to offering the database, however, the defendants have also stated that if after reviewing the
communications contained in the database, [Plaintiff] would like additional documentation concerning specific
communications, the defendants would conduct further searches for other documents. [Defendant’s] Opposition
to [Plaintiff’s] Motion to Compel Production of Documents (Defendant’s Opposition), Ex. G.
“[Plaintiff] has offered no legal authority to support its position, and the defendants only provides support
for their general assertions that discovery is not boundless, and that a court has discretion to tailor discovery. By
failing to provide legal support for their respective positions, the parties leave this Court to make its decision on
the basis for which position appears more reasonable. This Court agrees with [Plaintiff] that [Defendant’s]
communications with former [Plaintiff’s] clients are relevant. It also finds, however, that the offers made by the
defendants, as outlined above, is a satisfactory response to [Plaintiff’s] request. Therefore, this Court DENIES
[Plaintiff’s] motion to compel to the extent that it seeks information beyond what the defendants have offered, and
ORDERS the defendants to produce all communications with the 110 companies identified by [Plaintiff] that are
contained in the Focus database. Additionally, should [Plaintiff] so desire additional information, after reviewing
the Focus database, the defendants are ORDERED to conduct further searches for the documents, at their own
expense. (The Court notes that the defendants offered to search for further documents, if [Plaintiff] should so
desire, that the search be conducted at [Plaintiff’s] expense. Defendant’s Opposition, Ex. G. The defendants,
not [Plaintiff], must bear the cost.)”
20 Jun 2005 Plaintiff’s Motion to Compel Defendants to Conduct Searches Docket # 139
Of Defendant’s Electronic back-up Tapes
After reviewing the Defendant’s Focus database for the 110 clients the Plaintiff requests additional
information from the Defendants, specifically the emails which were originally requested on July 29,
2004. Unable to obtain agreement, the Plaintiff files another Motion to Compel, in this case asking
that the Defendants conduct searches of their email back-up tapes. The motion states:
“[Plaintiff] moves to compel [Defendants] to conduct searches of [Defendant’s] electronic back-up tapes.
On March 1, 2005 this Court ordered the defendants to conduct searches of back-up tapes containing electronic
information from 2002 for communications between [Defendant] and its potential clients. The same principles
motivating the Court’s March 1, 2005 decision also require that the defendant’s search the back-up tapes
responsive to [Plaintiff’s] other document requests. Electronic information generated in 2002 is crucial to
[Plaintiff’s] case, and it can only be found on the back-up tapes. Further, this Court has already recognized that
restoring and searching the back-up tapes will not be unduly burdensome for the defendants. Finally, the
defendants have admitted that once the back-up tapes are restored to conduct searches for documents
responsive to a single request, it is no more burdensome to conduct additional searches for documents to other
requests.
“For these reasons, and for reasons set forth in [Plaintiff’s] memorandum in support of this motion, which is
being filed separately under seal today, [Plaintiff] respectfully requests that the Court order the defendants to
restore and search the back-up tapes for (1) [Defendant’s] communications with its potential clients and (2)
information responsive to [Plaintiff’s] other document requests.”
Note that this motion in asking that the Defendant search the back-up tapes for “information
responsive to [Plaintiff’s] other document requests” is an expansion of the original motion filed July
29, 2004. That motion requested only documents related to “[Defendant’s] communications with
potential clients between the intrusion date and December 30, 2002.”
20 Jun 2005 Plaintiff’s Memorandum in Support of Motion to Compel Defendants Docket # 192
To Conduct Searches of Defendant’s Electronic Back-up Tapes
SEALED based on Plaintiff’s request to seal the document in Docket # 140 stating that “The
memorandum discusses and attaches excerpts of defendant’s Focus database that have been
designated ‘Highly Confidential’ under the Stipulated Protective Order of this case.”
12 Jul 2005 Defendants’ Opposition to Motion to Compel Defendants Docket # 191


SEALED based on Defendant’s request to seal the document in Docket # 153 stating “Impoundment
is necessary because the Opposition contains references to, and attaches copies of, documents
produced by defendants that have been designated as ‘Highly Confidential’ under the terms of the
Stipulated Protective Order (attached as exhibit A).”
Once again, only attorneys had access to the arguments being made for and against producing the
requested documents. Although the client could infer some of the earlier arguments from the public
court order (Docket # 85) filed in March, they did not know on what basis the Defendants refused to
provide a search of the email back-up tapes.
From Mid-July through early-September, 2005 most discovery efforts were deferred while court-mandated mediation
sessions were conducted. After the sessions failed to produce an agreement discovery resumed mid-September.
22 Sep 2005 Defendants’ Supplemental Opposition to Motion to Compel Defendants Docket # 162
In response to Plaintiff’s motion to compel the Defendant to search their email backup tapes (Docket
# 192), the Defendants file a supplemental opposition with the Court in which they argue (emphasis is
theirs):
“4. As was detailed at great length in Defendant’s original Opposition to the current motion to compel, the
restoration and searches that [Plaintiff] demands would take months for defendants to complete, would require
the defendants to incur massive expense, and would be unlikely to produce any responsive material
whatsoever.
“8. … As defendants have confirmed, the tapes contain a gigantic amount of information, most of which
would be completely irrelevant. As noted above, each of the 478 tapes at issue contains, on average,
approximately 35 gigabytes of data. If that amount of data were printed out as plain text of full sheets of paper,
the printed output would fill seven million pages, or 2,000 bankers boxes. Berriman Aff. ¶5. Four-hundred
and seventy-eight such back-up tapes – the amount involved in [Plaintiff’s] motion – would contain 3,000,000,000
pages. Id. at ¶17.
“9. … At prevailing market rates for e-discovery projects, the cost of electronic production of the complete
collection plaintiff seeks would exceed $30 million. Id. at ¶18.
“11. Unfortunately, given the new information regarding costs, even the first step involved in the restoration
of all 478 tapes (known as ‘cataloging’) would be prohibitively expensive given that the process is unlikely to
identify any responsive information. Id. at ¶19. While this cataloging process would produce indices –
themselves massive – reflecting what the tapes contain, according to [Defendant’s outside expert’s] proposal,
this cataloging process would cost $119,500. Id. Moreover, this figure does not include the hundreds of hours of
attorney time it would take to review the indices after they are generated to determine what if anything may be
responsive.”
The affidavit cited in the opposition which estimated the $30 million expense was provided by the
“Senior Counsel and Executive Manager of Litigation Technology” at the Defendant’s lead law firm.
He used itemized cost quotations (e.g. Catalog and Restore per Tape -- $450) provided by an outside
e-discovery firm as the basis for his $30,000,000 estimate. The independent firm did not make the
$30 million estimate. Interestingly, in their proposal’s first paragraph the outside firm states “While
we are frequently asked to estimate projects with huge datasets, our analysis typically reduces the
number of backup tapes that are ultimately restored. For instance, we recently analyzed a dataset of
7,000 backup tapes but ended up restoring, researching and reviewing data from only 300 tapes.”
This capability was not mentioned in the Defendant’s supplemental opposition.
12 Oct 2005 Plaintiff’s Response to Defendant’s Supplemental Opposition Docket # 176

To Plaintiff’s Motion to Compel Defendants to Conduct Searches
Of Defendant’s Electronic Back-up Tapes
Responding to the Defendant’s Supplemental Opposition estimating $30 million to restore and print
the contents of the email backup tapes, the Plaintiff’s attorney writes:

“C. The Defendants have Misdescribed the Relevant Tasks and Used that Misdescription to Misrepresent
the Cost and Burden of Producing These Relevant Documents.
The defendants suggest that [Plaintiff] has asked that the contents of the back-up tapes be printed and
reviewed. They state that any such activity would require that billions of pages of documents, filling thousands of
bankers boxes, be printed and reviewed at a cost of $30,000,000. [Plaintiff] has made no such request. The
task the defendants describe is wholly unnecessary. The steps needed to search for and produce the relevant
documents are as follows:
(1) The tapes are delivered to a vendor.
(2) The vendor catalogs the tapes, and using computerized means, extracts only the e-mails from the relevant
time period. (If as defendants suggest, all emails from that period have been over-written, the project will be
at an end.)
(3) The subset of extracted e-mails is then searched by computerized means. Only those e-mails that contain
identified search terms (for example, e-mails that contain the name of one of the relevant clients) are
selected.
(4) All duplicates are identified (again by computerized means) and removed.
(5) The selected documents are reviewed for privilege. Privileged documents are logged; the remaining
documents are produced.
[Plaintiff] believes the vendor’s fee for performing the retrieval and extraction process above will be about
$140,000 – one-half of one percent of the cost hypothesized by the defendants.
“[Plaintiff] is prepared to put its money where its mouth is. In order to cut through the prolonged discovery
dispute, [Plaintiff] will select the vendor (This will permit [Plaintiff] to control the cost of the vendor’s services.)
(subject to objections by the defendants directed to the independence of the vendor.) and will bear the cost of the
vendor, thus relieving the defendants of the ‘burden’ about which they complain. Neither [Plaintiff] nor the vendor
will view the contents of the selected documents until they have been reviewed for privilege by the defendants.”
The Plaintiff was comfortable proposing to pay for the retrieval of the emails based on a firm
quotation they had obtained from a respected outside vendor. The vendor’s estimate was consistent
with the $119,500 cost documented in the Defendant’s affidavit for cataloging the tapes.
Furthermore, it was clear from the vendor that once having cataloged the emails, the incremental cost
of conducting additional searches as per the Plaintiff’s June 20, 2005 motion was inconsequential.
27 Oct 2005 Letter from Defendants’ Lead Attorney to Plaintiff’s Lead Attorney ---
Responding to the Plaintiff’s proposal to conduct the back-up search at their own expense, the
Defendant’s lead attorney writes to the Plaintiff’s in an effort…
“to reach an agreement to undertake the proposed searches without waiting for the Court’s assistance.
Accordingly, we propose that if [Plaintiff] will withdraw its motion to compel dated June 20, 2005 on this subject
(the ‘Motion’), [Defendants] will agree to submit the backup tapes to a third-party vendor to conduct searches,
pursuant to the terms set forth below.
“As a preliminary matter, [Plaintiff’s] Responses seems to indicate that [Plaintiff] has previously requested
the production of ‘all of [Defendant’s] communications with the 110 identified clients and (emphasis his) all of
[Defendant’s] internal communications regarding those specific clients.’ This is, in fact, inaccurate. [Plaintiff] has
previously and consistently demanded the production of [Defendant’s] communications with (emphasis his) the
110 identified clients during 2002. [Plaintiff’s] Document Request No. 13 – the subject of the Motion – requests
‘[Defendant’s] communications with potential clients between the intrusion date [January 17, 2002] and
December 30, 2002.’ See Plaintiff’s First Set of Requests for Production of Documents and Things at 5.
Likewise, in its first motion to compel on this subject, [Plaintiff] demanded discovery of communications between
[Defendant] and the identified 110 clients during the 2002 timeframe. See [Plaintiff’s] Memorandum in Support of
its Motion to Compel Production of Documents, dated November 29, 2004 at 4. Most importantly, the Motion to
Compel to which [Plaintiff’s] Response relates also demands a search of the [Defendant’s] backup tapes for
communications between [Defendant} and the 110 identified customers during 2002. See [Plaintiff’s]
memorandum in Support of its Motion to Compel [Defendants] to Conduct Searches of [Defendant’s] Electronic
Backup Tapes, dated June 20, 2005 at 7.

“There is thus no basis for [Plaintiff] to further expand its Document Request No. 13, four months after
filing its motion to Compel and one month after the close of fact discovery, to include internal communications or
any documents outside the 2002 timeframe. We request that [Plaintiff] immediately modify its Response and
accompanying proposed Order to make them consistent with Shareholder’s underlying Motion to Compel.”
“Subject to the above clarification, Defendants make the following proposal, addressing below each of the
numbered paragraphs in ‘[Plaintiff’s] Proposed Resolution of This Issue’ at pages 4 and 5 of [Plaintiff’s]
Response:
(1) [Plaintiff’s] proposed vendor must be identified in advance of the execution of any agreement to resolve this
matter, to allow Defendant’s an opportunity to conduct any necessary diligence.
(2) Agreed.
(3) The parties shall agree in advance on the search terms to be used to select potentially relevant e-mails.
These searches must be limited to e-mails between [Defendant] and the 110 previously identified customers
during 2002. In addition, the searches shall be limited by custodian to all members of the [Defendant’s]
sales force and Management Team during the relevant period.
(4) Agreed.
(5) The vendor shall deliver the resulting set of emails to Defendant’s counsel in electronic form so that counsel
may identify any e-mails that are categorically irrelevant, nonresponsive, and/or privileged. Any documents
to be withheld on the basis of privilege will be placed in a privilege log for production to counsel for [Plaintiff].
Any documents to be withheld on the basis of irrelevance or nonresponsiveness will be placed on a
relevance log by category for production to counsel for [Plaintiff]. The parties will have the option of
submitting any disputes as to the items contained in those logs to a Discovery Master who will be jointly
retained by the parties.
(6) Defendants will then produce to [Plaintiff] the set of e-mails selected pursuant to the steps above, except for
those that were withheld as privileged, irrelevant, or nonresponsive.
“We are prepared to enter into this agreement with the understanding that [Plaintiff] will bear the cost of
cataloging and restoring the e-mails, running the computerized searches to identify the relevant e-mails,
removing the duplicate e-mails, and delivering the documents to us as described in Paragraph (5). Defendants
will in turn bear the cost of the attorney and the paralegal time that will be involved in review and production of
these e-mails, as well as creation of appropriate logs.”
The Defendants state their willingness to allow the email searches to proceed with certain restrictions
and to be paid for by the Plaintiff. However, as a pre-condition they require that Plaintiff drop its
request to broaden the scope of the search to emails beyond those between Defendant and the
identified 110 clients.
31 Oct 2005 Conference Call Between Plaintiff and Defendants’ Attorneys ---
The litigating attorneys hold a “telephonic meet and confer” in an attempt to resolve the dispute. The
issue of cost having been resolved, the issue of scope remains. The Plaintiffs wish to include in their
email search “information responsive to [Plaintiff’s] other document requests.” The Defendants wish
to limit the search to Request No. 13 of the July 29, 2004 document request. Agreement is not
reached.
1 Nov 2005 Defendant’s Surreply to Plaintiff’s Response to Defendant’s Docket # 181

Supplemental Opposition to Plaintiff’s Motion to Compel
Defendants to Conduct Searches of Defendant’s Electronic
Backup Tapes
Unable to reach agreement, Defendants file an additional response (a “surreply”) to Plaintiff’s
October 12, 2005 response to Defendants opposition to Plaintiff’s motion filed June 20, 2005 to
compel the search of backup email tapes. They write, in part:
“8. On October 12, 2005 new counsel for [Plaintiff] filed a Response to Defendants’ Supplemental
Opposition to [Plaintiff’s] Motion to Compel. In these papers, [Plaintiff] attempts to significantly expand the scope
of their underlying Motion to Compel (and [Plaintiff’s] Document Request 13 underlying that Motion to Compel)
by stating that it previously requested the production of ‘all of [Defendant’s] communications with the 110

identified clients and (emphasis theirs) all of [Defendants] internal communications regarding those specific
clients’ during any time period. See [Plaintiff’s] Response to Defendants’ Supplemental Opposition to [Plaintiff’s]
Motion to Compel [Defendant’s] to Conduct Searches of [Defendant’s] Electronic Backup Tapes, dated October
12, 2005, at 2.
“9. However, [Plaintiff] has never previously requested a search of [Plaintiff’s] archival back-up tapes for all
of [Defendant’s] internal (emphasis theirs) communications regarding those 110 identified clients, nor has it
previously requested any documents outside of the 2002 timeframe…
“ CONCLUSION
“Subject to the clarification set forth above and for all of the reasons set forth in greater detail in their
previous briefing of this matter, Defendants respectfully request that [Plaintiff’s] Motion to Compel be denied.”
27 Dec 2005 Court Order on Plaintiff’s Motion to Compel Defendants Docket # 208
The Court issues its order on the Plaintiff’s motion filed as Docket # 139, writing in total:
“On June 25, 2005 [Plaintiff] filed a motion to compel [Defendants] to conduct searches of the defendants
electronic back-up tapes. That motion followed a March 1, 2005, Order (‘Order’) from this court directing the
defendants to produce to [Plaintiff] ‘all communications with the 110 companies identified by [Plaintiff] that are
contained in {the defendants’} Focus database.’ Order at 6. The Order also stated that if after reviewing the
Focus database [Plaintiff] desired additional information, the defendants were to conduct further additional
searches. Id. at 7. The defendants produced the required information, [Plaintiff] reviewed it, and then, perhaps
predictably, asked the defendants to conduct further additional searches as directed by the Order. The
defendants resisted, leading, ultimately to the current motion to compel.
“Since [Plaintiff] filed the motion to compel, the parties have made significant progress toward resolving
this particular discovery dispute. They have agreed to hire a third-party vendor to conduct the searches of the
defendants’ electronic back-up tapes, but one sticking point remains: the scope of the search. [Plaintiff’s] original
request for information on the 110 identified clients sought only [Defendant’s] communications with those clients
and the current motion to compel initially sought only that as well. Now, however, as the defendants point out,
[Plaintiff] seeks not only back-up tape communications between [Defendant} and the 110 identified clients, but all
of [Defendant’s] internal communications regarding those clients as well. In [Plaintiff’s] response to the
defendants’ supplemental opposition to the motion to compel, [Plaintiff] states that it ‘has requested the
production of all [Defendant’s] back-up tape communications with the 110 identified clients and all of
[Defendant’s] internal communications regarding those specific clients…’ [Plaintiff’s] Response to Defendants’
Supplemental Opposition to [Plaintiff’s] Motion to Compel [Defendants] to Conduct Searches of [Defendant’s]
Electronic backup Tapes at 2. {Plaintiff] appears to be expanding the scope of its original request, which
[Plaintiff] can not now do. The search of the electronic back-up tapes must therefore be limited to back-up tape
communications with the 110 identified clients and need not include [Defendant’s] internal communications
regarding those clients.
“To the extent that [Plaintiff’s] motion to compel seeks information on the electronic back-up tapes the
motion is ALLOWED IN PART but only as to [Defendant’s] communications with the 110 identified clients.
Furthermore, allowance of the motion is contingent upon the parties’ agreement to hire a third-part vendor to
conduct the search. If the remaining details of the agreement to hire the third-party vendor can not be resolved
by the parties, they should so inform the Court. SO ORDERED.”
20 Jan 2006 Defendants’ Motion for Clarification of Order on Plaintiff’s Docket # 217
Motion to Compel Searches of Defendant’s Electronic Backup Tapes
The Defendants file a motion for clarification of the court’s December 27, 2005 order. After
presenting background information and their arguments, the Defendants write:
“8. As such, Defendants seek the Court’s confirmation that its December 12, 2005 Order compels the
searches of the [Defendant’s] backup tapes pursuant to the culmination of the parties’ negotiations regarding this
matter. As the Court noted, it has resolved the ‘one sticking point’ – the scope of the searches – in its Order.
With the Court’s resolution of this issue, the Order implicitly endorses the remainder of the Defendants’ October
27, 2005 modifications to [Plaintiff’s] October 12, 2005 Response.
“ CONCLUSION
“9. For all the foregoing reasons, Defendants respectfully request that the Court confirm that the backup
tape searches should be conducted pursuant to the following conditions: (1) the searches shall be conducted at

{Plaintiff’s] expense; (2) the searches shall be conducted by a vendor that is identified and agreed upon in
advance by the parties; (3) the searches shall only be for the emails with the 110 identified clients during 2002;
(4) the parties shall agree in advance on any necessary search terms and the searches shall be limited to only
relevant custodians; and (5) the vendor shall deliver to Defendants’ counsel the resulting set of emails in
electronic form so the Defendant’s counsel may identify any emails that are to be withheld on the basis that they
are nonresponsive (i.e. outside the scope of the Court’s Order) or privileged, and describe any privileged
documents on a privilege log.”
20 Jan 2006 Joint Motion to Extend Time to File Objections to the Magistrate Docket # 218
Judge’s Recent Orders Regarding Various Discovery Issues
Anticipating that they will object to certain of the Magistrate Judge’s recent orders, both parties
“…hereby jointly move for an extension of time in which both parties may file objections to [the Magistrate
Judge’s] recent orders on various issues to January 27, 2006.”
As the case began with a request for a time extension on April 6, 2004, so it ended.
31 Jan 2006 A settlement was reached and the case was dismissed. Docket # 221
***
The preceding discovery battle is a good example of why the discovery process is so often slow,
expensive and ineffective. What the Plaintiff considered a simple and reasonable request –
provide emails between the Defendant and 110 specific clients during 2002 – turned into a major
battle that consumed hundreds of thousands of dollars in expense and, had the emails actually
been produced, nearly two years of effort. Furthermore, once finally produced the emails’
usefulness would have been drastically reduced since so much of discovery had already taken
place. The opportunity to question witnesses during depositions regarding evidence that may
have been uncovered in the emails was likely lost, for example.
Typically there are several, or even many, of these discovery battles going on simultaneously
during a lawsuit. This obstructive process can easily take several years to complete and is a
primary reason that lawsuits are so expensive. It is unfortunately a common and well-understood
tactic taken: i) by a larger opponent to wear down a smaller opponent, ii) to attempt to conceal
damaging information, or iii) to delay the progression of the lawsuit for as long as possible in the
hope circumstances may somehow change to improve the case’s outcome. See the numerous
references in Appendix E particularly Brazil, Schiltz, Bogus, Beckerman, Wagner and Langbein.
Under American law, discovery is based on an adversarial approach. The theory is that the
adversaries themselves are most capable of providing and unearthing the facts of the case. The
reality is that litigants often block, delay and obfuscate the transfer of information as much as
legally possible, and occasionally beyond that. Although individual litigants hope to gain an
advantage, over the long term this approach increases the cost of litigation for all clients.
In most matters our courts are quite efficient. Consider how quickly during the Complaint phase
the court resolved legal issues regarding dismissal, jurisdiction and counterclaims. These issues
are well understood. Little nonsense is abided. But when asked to adjudicate complex technical

issues with which they are unfamiliar, lacking precedent and badgered by conflicting, partisan
and extreme arguments, the court is often less effective.
The Dispute as a Microcosm of Today’s Discovery: Lessons Taken
But this is the reality of our American system of discovery and there is much to be learned from
the preceding discovery battle which in many respects was a true microcosm of today’s
discovery process.
First, the Defendants’ lead law firm clearly did an excellent job protecting the disputed emails.
The discovery process is by its nature iterative. One piece of evidence leads to another which
often leads to yet another thus requiring successive discovery requests. Standard defense
strategy is to attempt to break or at least delay this chain. As it became clear that the Plaintiff
would gain access to the emails originally requested, following standard defense strategy the
Defendants moved to block additional email searches. The Plaintiff believed this to be a
restriction to their discovery rights to obtain full disclosure of relevant material.
By the time the case settled, this particular discovery battle had been underway for nearly a year
and a half costing the Plaintiff considerable time and expense. Yet, the Plaintiff was arguably no
closer (based on anticipated objections as per Docket # 218) to obtaining the original emails,
much less other possible evidence farther down the chain, than they were when they started.
Studying the Defendants’ court filings, their strategy appeared to be based on two elements:
 Audacity: Early in the dispute the Defendants made the counter-proposal that they
produce their internal client database, Focus, rather than the requested emails. It being
understood that emails starting perhaps around 2000 have served as critical evidence in a
number of high-profile cases, this struck us as a bold move; analogous perhaps to a
taxpayer being audited by the IRS proposing that he provide a personal financial
spreadsheet rather than the requested bank records. Once this approach had run its course,
the Defendants then claimed that the Plaintiff’s search request would cost $30 million.
As technologists this struck the Plaintiff’s management team as astonishing. Finally, the
Plaintiff was willing to attempt to break the impasse by paying for the search at cost of
approximately $140,000.
 Persistence: The Defendants never let up in their resolve. They initially declined to
provide the emails due to burden, breadth and relevance. They then successfully
proposed Focus, the Defendant’s internal database, as an alternative. When the Plaintiff
again sought the emails after reviewing the Focus records, they asserted it would cost $30
million. When expense was made a non-issue by the Plaintiff’s offer to pay for the
search, they made the scope of the search the issue. When the Court on December 27,
2005 ALLOWED IN PART the Plaintiff’s motion to search the backup tapes, they
requested (i) tight constraints on the search process including advance agreement on the
search terms, (ii) a decision from the Court that searches of the Defendant’s internal
emails would not be allowed, and (iii) a time extension to file objections to the court
order. Had the case not settled, and once the email search was finally underway, it seems
reasonable to assume the Defendant’s would have disputed the terms under which the

Plaintiff-paid email retrieval was being conducted. By the standards of the discovery
process in our courts today, they provided a highly-commendable defense.
Second, courts struggle at times to adjudicate discovery disputes. Under our form of common
law courts look to legal precedence in forming their opinions. When that is lacking courts tend
to seek compromise, sometimes uncomfortably. In its first opinion, Docket #85, the court stated
“[Plaintiff] has offered no legal authority to support its position, and the defendants only
provides support for their general assertions that discovery is not boundless, and that a court has
discretion to tailor discovery. By failing to provide legal support for their respective positions,
the parties leave this Court to make its decision on the basis for which position appears more
reasonable.” Even in 2005, electronic discovery was still fairly new. Many judges were not
acquainted with the technology. One party claimed it was monumentally expensive to search
backup tapes, the other disputed this. The court had little basis for evaluating these claims.
Our judicial system is asked to adjudicate discovery disputes in fields that range from aerospace
to zoology simply by trying to sort out the extreme arguments of partisan attorneys. Under this
system, it is our opinion that the the parties that tend to prevail are those that (i) more clearly,
consistently and reasonably present their position, or (ii) present a compromise proposal. In this
dispute, approach (ii) was the prevailing strategy. In its first decision (March 2, 2005), the judge
accepted the Defendants’ proposal to substitute the Focus database for the client emails, and in
its second (December 27, 2005), she accepted the Plaintiff’s proposal to pay for the email search.
Third, the system suffers badly from lack of accountability. As lay persons the Plaintiff’s
management found it astonishing that the court, after ordering in its March 2, 2005 decision that
“the defendants are ORDERED to conduct further searches for the documents, at their own
expense,” did not reprimand the Defendants when they apparently did not follow the order.
Furthermore, after allowing another extended dispute in which the Defendants claimed, a year
after the original document request, an expense to search the email backup tapes of $30 million
while the Plaintiff claimed it would cost only $140,000, the court accepted the Plaintiff’s
$140,000 proposal and their offer to pay themselves. This was after the court had earlier ordered
the Defendants to conduct the search “at their own expense.”
Yet even these incredibly disparate estimates – $140,000 versus $30 million – did not seem to
raise an eyebrow with the court, these kinds of widely disparate arguments apparently tending
not to be unusual.
Finally, as numerous legal scholars have noted there are few incentives for attorneys to conduct
discovery efficiently. Every motion, opposition, supplemental memorandum and court hearing is
an opportunity to generate billable hours. And why not? Clients and the courts seem to accept
the interminable delays and resulting high expense of discovery. Even the American Bar
Association which has taken strong positions on “the tyranny of the billable hour and the
relentless focus on the bottom line”8 has little to say on minimizing litigation expense and time
delays. Their code of conduct, “Model Rules for Professional Conduct,” Rule 3.2 Expediting
Litigation, simply states “A lawyer shall make reasonable efforts to expedite litigation consistent
with the interest of the client.” Sixteen words, leaving ‘reasonable efforts’ undefined. In

contrast the ABA’s Rule 7.5 Firm Names and Letterheads requires 174 words to regulate the
naming of law firms.
Our legal system gives attorneys tremendous flexibility during discovery. Unfortunately, this
flexibility often seems abused. A litigant not wishing to provide an item of evidence can delay
nearly indefinitely by filing objections and oppositions which the court dutifully accepts. An
aggressive attorney’s ability to block requests or alternatively go on extended “fishing
expeditions” seems to be limited only by audacity and persistence. Reasonable latitude is
required during discovery certainly, but when that latitude is taken to be a license to block
information by any means necessary, or overwhelm the opponent with frivolous requests, the
court needs to have the skills to identify such unproductive behavior and the resolve to then rule
with a strong hand, or a deft touch as Federal District Court Judge Sam Sparks used in his poetic
order terminating a six year deposition dispute:
Stallions can drink water from a creek without a ripple;

The lawyers in this case must have a bottle with a nipple.
Babies learn to walk by scooting and falling;
These lawyers practice law by simply mauling.
Each other and the judge, but this must end soon
(Maybe facing off with six shooters at noon?)
Surely lawyers who practice in federal court can take
A deposition without a judge's order, for goodness sake.
First, the arguments about taking the deposition at all,
And now this -- establishing their experience to be small.
So, let me tell you both and be abundantly clear:
If you can't work this without me, I will be near.
There will be a hearing with pabulum to eat
9
And a very cool cell where you can meet.

Discovery: Expense Analysis
Table 12, “Discovery Expenses,” calculates Discovery expenses for the lawsuit to be
approximately $1.21 million, or 49.6 percent of the lawsuit’s total cost. A total of 3,771 billable
hours were consumed conducting Discovery.
Table 12: Discovery Expenses

Depositions:
Direct Expenses
Deposition 4,868 151,244 33,400 - 189,513
Court Reporter - 20,948 5,022 - 25,970
Sub-total 4,868 172,192 38,422 - 215,482
Allocated Expenses
Motions - 57,964 6,059 - 64,024
Legal Research - 17,626 2,971 - 20,597
Document Management 872 39,515 4,228 - 44,616
Communications 4,273 114,334 9,470 - 128,077
Unclassified 820 15,102 1,629 - 17,552
Sub-total 5,966 244,542 24,357 - 274,865
Total Deposition 10,834 416,734 62,779 - 490,347
Documents:
Direct Expenses
Document Discovery 29,308 206,924 52,409 5,815 294,455
Allocated Expenses
Motions - 79,304 9,508 12,454 101,266
Legal Research - 24,115 4,662 1,607 30,384
Document Management 5,251 54,063 6,634 797 66,745
Communications 25,725 156,425 14,859 3,703 200,713
Unclassified 4,937 20,662 2,556 530 28,686
Sub-total 35,914 334,569 38,219 19,091 427,793
Total Documents 65,221 541,493 90,628 24,906 722,249
Total Discovery 76,055 958,227 153,407 24,906 1,212,596
Hours
Direct 101 1,077 249 19 1,446
Allocated 137 1,963 166 58 2,324
Total 238 3,040 415 76 3,771
Discovery expenses are segmented into Deposition and Document Discovery expenses.
Deposition expenses were approximately $490,000. During the lawsuit eighteen depositions
were taken, ten by the Plaintiff and eight by the Defendants representing an average cost per
deposition slightly over $27,000. Under current Federal Rules of Civil Procedure actual
depositions are limited to one seven-hour day for each witness. Hence, total deposition costs
approached $4,000 for each hour a witness was actually deposed.

We did not analyze the different costs associated with taking versus defending a deposition.
Generally taking a deposition is more expensive than defending one. The former requires
questions be prepared beforehand in detail, a senior attorney to conduct the deposition, a court
reporter to transcribe the deposition, possibly a videographer to record a critical deposition, and
the resulting transcripts reviewed. Defending a deposition primarily requires that a lawyer
prepare the witness by discussing the issues and evidence the deponent will likely encounter as
well as attend the deposition.
In general, the analysis allocated the supportive expenses -- Motions, Legal Research, Document
Management, Communications and Unclassified -- across Depositions and Document Discovery
on a pro rata basis based on their direct expenses during each phase. See Appendix B, “Direct
and Allocated Expenses,” for specific allocations.
Document Discovery expenses were approximately $722,000, or sixty percent of total Discovery
expenses. $294,445 or about 41 percent of the Document Discovery expenses were direct, the
remaining expenses, $427,793 were allocated.
Remarkably, dispute-related expenses totaling $545,060 were actually larger than the $509,937
($215,482 + $294,455) in direct expenses spent for providing, obtaining and analyzing the
deposition and document evidence. Table 13, “Discovery Dispute Expenses,” documents the
expenses associated with these discovery battles.
Table 13: Discovery Dispute Expenses
Complaint Discovery Experts Settlement Total

Motions & Research
Pleadings - 132,490 15,400 12,454 160,344
Court Hearings - 4,017 167 - 4,185
Court Fees - 761 - - 761
Legal Research - 41,741 7,633 1,607 50,981
Sub-total - 179,009 23,201 14,061 216,271
Attorney Communications
Internal 15,380 133,796 11,033 1,076 161,286
With Opponent 5,142 81,594 7,344 753 94,833
With Client 9,069 51,882 4,523 1,846 67,319
Out-of-Pocket 407 3,488 1,428 28 5,351
Sub-total 29,998 270,759 24,328 3,703 328,789
Total 29,998 449,768 47,529 17,764 545,060
During the lawsuit, over $216,000 was spent preparing legal pleadings, attending court hearings
and conducting legal research during Discovery. Nearly $330,000 was spent by the Plaintiff’s
attorneys to confer among themselves, with their legal opponents or with the client, largely on
dispute issues.
By far the most complex, time-consuming and expensive were the Motions to Compel the
opposing side to produce specific items of evidence which had been denied during Discovery.

Ten such motions were filed by the Plaintiffs and Defendants. As the court made rulings on
these motions, usually granting them in whole or in part, evidence was slowly produced. At that
point, Motions to Seal or request Protective Orders were often filed to disallow anyone other
than lawyers from viewing the evidence. A total of 35 of these protective motions were filed
during the lawsuit.
Although often justified during a lawsuit between fierce competitors, motions to seal and
protective orders are also used to block evidence from being viewed by the client’s management
for other reasons. Sometimes simply because the evidence is embarrassing but more often
because management, since they know their business better than anyone else, are often best able
to interpret the evidence. By limiting access, the opposition forces the other side to employ
attorneys and outside experts exclusively for interpreting the evidence thereby increasing costs,
delaying the lawsuit and reducing the possibility that the evidence will be fully utilized. See the
numerous references already cited for support and elaboration.
Unfortunately, shielding critical information within a lawsuit is not unusual. As noted in an

American Bar Foundation study “An example of a more subtle form of harassment was provided
by a lawyer who observed that ‘a nice way to tie up the other side’ is to secure a protective order
which limits the number of people within the structure of the corporate client with whom
opposing counsel can share information and discuss the case. Such orders, according to this
respondent, can impair an attorney’s capacity to prepare for trial and can force him to spend time
and money trying to justify a modification.”10
Finally, since Discovery is still largely a paper-based effort, Document Management continues to
be a significant expense. During Discovery, $111,361 ($44,616 + $66,745 from Table 12) was
spent in administrative expenses for organizing, copying, binding and indexing documents and
their databases.
At the point the lawsuit was settled, two disputed depositions (not including expert witnesses)
remained to be taken. Had the lawsuit continued, total deposition costs would likely have been
in the range of $525,000 to $550,000. Also, although many documents had been exchanged at
the lawsuit’s termination, both sides were still actively fighting discovery battles for critical
documents or other evidence. Several of these disputes had been on-going for over a year. Had
the lawsuit continued, it is very possible that Document Discovery expenses would have
exceeded $1 million, perhaps significantly.

Expert Reports
In early 2005 the Plaintiff engaged two large, national litigation-support firms to investigate and
prepare expert reports on the liability and damages aspects of their case. Later they also retained
an experienced industry executive with no expert witness experience to prepare a causation
analysis report.
After reviewing the evidence and their attorneys’ requirements, the Plaintiff’s attorneys reported
in an email that the technical experts responsible for the liability report estimated “that the full
engagement (expert analysis, preparation of the report, deposition time) will cost between $50K
and $75K.”11 Similarly, as we understood it the financial experts preparing the damages report
projected their pre-trial costs in the $75,000 range. The industry executive’s report was
estimated to be under $10,000. The total pre-trial cost for outside experts was projected in the
$125,000 to $175,000 range.
Since any communication the experts had with the client was discoverable – the opposition could
request this sensitive information as part of their discovery process – the client was not allowed
to discuss status or review any interim results directly with their experts. This communication
was done almost entirely by their lawyers, protected under attorney work-product privilege.
The Plaintiff was however forwarded the firms’ monthly invoices for payment and within a few
months began to have serious concerns about rising costs. Although the Plaintiff’s management
team were not experts in a legal sense, as managers of a successful business they definitely
understood technical and financial analysis. It was becoming clear to them from the invoices
that expenses were running significantly ahead of projections. They repeatedly expressed their
concerns with their attorneys and finally in frustration put both firms on hold in May, 2005.
The Plaintiff was particularly concerned with the financial experts working on the damages
report. They had already billed $82,294 by the end of May with much more work remaining to
be done as best as they could determine. Their attorneys encouraged them though to accept the
cost over-runs and move ahead which, after much discussion, they elected as the best course.
As Table 14, “Total Expert Report Expenses,” documents, by the end of the Discovery phase the
Plaintiff’s total Expert Report expenses, including allocations and attorney expenses, were
$354,194. The technical experts appeared to have stabilized their earlier budget over-runs, but
the financial experts had billed a surprising $194,329, nearly double their original estimate.
Although $354,194 in expert-related expenses had already been incurred during the Discovery
phase, expenses exploded during the Experts phase from October through December, 2005.
As the deadline drew closer, the Plaintiff discovered that several critical parts of the work done
to-date required rework. Shortly before the liability report was to be submitted, for example, an
attorney who fortunately had a technical background discovered a flaw in the database developed
by the technical experts upon which their analysis was based. This necessitated a crash effort to
rework the technical analysis and report. The result was that the technical experts billed an

additional $100,382 during October and mid-November. ($6,594 was billed by a non-testifying
technical expert.)
Table 14: Total Expert Report Expenses

Direct Expenses
Attorneys - 49,515 152,151 1,637 203,303
Technical Experts - 49,268 106,976 - 156,243
Financial Experts - 194,329 269,374 - 463,702
Total - 293,111 528,501 1,637 823,249
Allocated Expenses
Legal Research - 5,770 13,535 452 19,758
Document Management - 12,937 19,259 224 32,420
Communications - 37,431 43,138 1,042 81,611
Unclassified - 4,944 7,421 149 12,514
Sub-total 61,083 83,353 1,868 146,304
Total - 354,194 611,854 3,505 969,553
Hours
Direct - 124 328 4 457
Expert Witnesses - 854 1,351 - 2,205
Allocated - 208 226 6 439
Total - 1,186 1,905 9 3,101
Also, a few weeks before their report was due the financial experts stated (or perhaps re-stated)
that significant additional work was needed. Part of the additional work was based on new
evidence that had recently become available from the Defendants that needed to be incorporated
into the final report. The experts recommended that an additional statistical analysis also be
conducted. The Plaintiff’s management resisted this additional work strongly but once again
relented. At that point, they had little choice other than to switch experts and petition the court
for a major delay which would certainly have been fought by the Defendants and very possibly
denied by the court. Even had they switched, their opponents may have attempted to argue
during the trial that the switch was motivated by a recalcitrant expert who refused to provide the
favorable opinion they sought thereby undermining the new expert’s report and credibility.
To complete their report the Plaintiff’s financial experts billed $269,374 during the final three
months of 2005. Their new attorneys (Law Firm B) also charged $152,151 and 328 hours during
the same period for managing the experts. The only non-professional expert witness completed
his report well under his $10,000 budget.
The total cost for generating the expert reports, including allocations for legal research,
document management, communications and unclassified expenses, was $969,553 – far above
the original costs estimated a year earlier. A total of 3,101 hours were billed including 2,205 by
the experts and 896 by the Plaintiff’s attorneys for working with the experts.

Excepting the causation report whose cost was minimal, the product of these expenses was two
reports. The liability report was a 16 page document with additional supporting material. It was
signed by the firm’s founder and managing partner. The damages report was 20 pages plus
supporting documents. It was signed by two Ph.D experts in finance and statistics. Both reports
were competent but unremarkable. The damages report contributed to the case in clearly
establishing the Plaintiff’s claimed financial damages. The liability report was largely an
independent confirmation of the in-house technical analysis the Plaintiff had conducted earlier.
If we assign the lawyers’ direct expenses ($203,303 from Table 14) and the allocated expenses
($146,304) on a pro rata basis to the experts’ expenses, we can estimate the actual costs of each
expert report as follows in Table 15, “Expert Report Total Costs”:
Table 15: Expert Report Total Costs
Liability Report
Technical Experts $156,243
Allocated Expenses 88,111
Total 244,354
Damages Report
Financial Experts 463,702
Allocated Expenses 261,496
Total 725,199
Total $969,553
The two reports totaling 36 pages, a considerable portion of which was author biography and
methodology, cost nearly one million dollars.
Had the case continued, the Plaintiff would have seen significant additional expert-related
expenses for reviewing the Defendants’ expert reports, responding to the Defendants’ issues
regarding their reports, amending their reports, providing and obtaining depositions, pre-trial
preparation and trial testimony.

Settlement
During the lawsuit, three rounds of settlement talks were held concluding in the termination of
the lawsuit in January, 2006. Table 16, “Settlement Expenses,” documents the expenses
associated with these efforts. Approximately $121,000 was spent in settlement-related expenses
nearly evenly divided between direct fees charged by the Plaintiff’s attorneys and allocated
expenses for document management, communications and unclassified expenses.
Table 16: Settlement Expenses

Direct Expenses
Attorneys 3,043 43,722 - 11,479 58,244
Allocated Expenses
Document Management 545 11,423 - 1,573 13,542
Communications 2,671 33,052 - 7,310 43,033
Unclassified 513 4,366 - 1,046 5,924
Sub-total 3,729 48,841 - 9,930 62,500
Total 6,772 92,563 - 21,409 120,744
Hours
Direct 10 124 - 25 159
Allocated 12 168 - 28 208
Total 22 292 - 53 367
Although settlement talks were held near the end of the Complaint phase no agreement was
reached. It was too early. The Plaintiff was expectant that evidence gathered during discovery
and the experts’ reports would significantly strengthen their negotiating position. The
Defendants, perhaps, felt the same for their position. Less than $7,000 was spent on these early
negotiations.
Three-quarters of the Plaintiff’s total settlement-related costs, over $92,000, occurred near the
end of the Discovery phase when two court-mandated sessions, one in July and the other in
September, were held. Although the two sessions, presided over by a federal judge, totaled less
than ten hours much effort and expense were expended in their preparation including reviewing
evidence, preparing damage estimates, discussing negotiating strategy, preparing a detailed case
book, and scheduling the meetings. These extensive preparations are estimated to have
consumed about 260 billable hours and $75,000 in expenses, about eighty percent of the total
Settlement-related expenditures during the Discovery phase.
By the end of the Experts phase in late 2005 most of the facts of the case were well understood.
Although several long-running discovery battles were still being fought, the vigor and expense
with which these battles were being pursued suggested the evidentiary value of the documents
being sought. However, the upsurge in expenses during this time and in particular the inability
to predict or control them was a serious concern. See Figure 8, “Lawsuit Cash Burn.” Although
the Plaintiff believed they had a strong case, the outcome was certainly not assured and they, as
the client paying the bills, were assuming all the financial risk.

Figure 8: Lawsuit Cash Burn
$500,000
$400,000 Out-of-Pocket Expenses

Expert W itness Fees
Attorney Fees
$300,000
$200,000
$100,000
$0
4 4 4 4 4 5 5 5 5 5 5 6
-0 -0 l- 0 -0 -0 -0 -0 -0 l- 0 -0 -0 -0
ar ay Ju p ov n ar ay Ju p ov n
M M Se N Ja M M Se N Ja
Equally if not more importantly on January 10, 2006 The Nasdaq Stock Market announced its
intentions to acquire the Plaintiff. Naturally, after the acquisition NASDAQ would want the
company’s management focused on building the business, not preoccupied with an expensive
and distracting lawsuit. Likewise the Defendants would be facing with NASDAQ a much more
formidable opponent than the current Plaintiff, Shareholder.com. So both parties were motivated
to terminate the lawsuit. In addition, both the Plaintiff and the Defendants conducted the
negotiations outside of their legal teams. As a result, the final discussions moved quickly,
successfully and were relatively inexpensive.
By mutual agreement the lawsuit terminated on January 31, 2006.
Additional Comments
Our analysis was based on expenses as billed to Shareholder.com. At the conclusion of the
lawsuit the Plaintiff asked their attorneys and experts to reduce their invoices submitted during
the Experts phase based on: i) their much higher than projected billings, and ii) the high costs
associated with changing law firms at a critical time in the lawsuit. Although not all parties
agreed to do so, several firms did and provided discounts totaling approximately $150,000.
The analysis did not include the Plaintiff’s internal expenses for supporting the lawsuit in the
analysis. These expenses included approximately $66,000 for legal fees paid a retired corporate
counsel to serve as their acting general counsel to help manage the lawsuit.
Also not included in the analysis were the Plaintiff’s management and board expenses and
opportunity costs. The Plaintiff’s attorneys billed approximately 256 hours for client

communications during the lawsuit. For each hour the Plaintiff’s management conferred with
their attorneys, we conservatively estimate an additional four hours spent gathering discovery
information, preparing material for the experts, reviewing legal documents and other sundry
tasks. Consequently, we estimate that the lawsuit consumed about 1,280 hours (12 hours per
week) of total management time and perhaps $160,000 in direct costs. It is not possible to
estimate the opportunity costs other than to say a lawsuit, at least in a small company, consumes
a great deal of intellectual and emotional energy that could generally be applied to more
productive efforts.

INDUSTRY METRICS
The preceding analysis has considered the lawsuit from the client’s perspective, but what about
the law firm and more broadly, the legal industry? How would the lawsuit compare to the
financial metrics against which the industry measures itself? Surprisingly, we can take a
somewhat educated guess at these questions. But it is just a guess and caution is highly advised
interpreting the results.
Every year, industry trade organizations and publications conduct several comprehensive surveys
of law firms. The American Lawyer magazine’s Am Law 200 survey is one of the most
respected. The survey ranks the top 200 law firms by Gross Revenues as well as Revenues per
Lawyer, Profit per Partner and Value per Lawyer, defined rather crassly as the number of
lawyers it takes “to put $10 million in the pockets of the firm partners.”12
If, for the lawsuit, we calculate Revenues per Lawyer (RPL) and Profits per (Equity) Partner
(PPP) and then compare these figures with the survey results, we can develop an understanding
of the lawsuit’s financial merits from the legal industry’s perspective. Both of these metrics
though are annual figures for an entire law firm. How then can we relate our single lawsuit
against such metrics? By simply positing: i) an imaginary law firm exclusively employing the
lawsuit’s staffing and then, ii) normalizing the lawsuit’s billed hours to represent the total annual
hours for the typical law firm. The result is a theoretical law firm whose annual hourly billings
are proportional to the lawsuit. This approach is valid because both industry metrics, revenues
per lawyer and profits per partner, are ratios. We are simply taking the ratios for the lawsuit and
annualizing them to compare with industry figures.
Table 17: Lawsuit Revenue per Lawyer
Firm A Firm B Firms A&B

Hours
Senior Partners 600 199 799
Other Lawyers 2,649 959 3,608
Paralegals 839 239 1,079
Total 4,089 1,397 5,486
Hourly Fees
Senior Partners 307,098 138,305 445,403
Other Lawyers 740,667 364,381 1,105,048
Paralegals 101,661 45,210 146,871
Total 1,149,426 547,896 1,697,322
Out-of-Pocket Fees 100,923 24,877 125,800
Total Revenues 1,250,349 572,773 1,823,122
Lawyer-Years 1.728 0.615 2.343
Revenue per Lawyer 723,701 930,816 778,094
Let’s first calculate Revenue per Lawyer as presented in Table 17. Over their involvement, Law
Firm A billed 4,089 total hours and $1,250,349 in fees. During 2004 and 2005, the industry
average for annual billing hours for large law firms was about 1,800 hours per senior partner and
1,900 hours per associate. Therefore Law Firm A consumed an estimated 1.728 lawyer-years
(600/1,800 + 2,649/1,900). We then obtain the firm’s annualized metrics by dividing its actual

figures by 1.728 yielding Revenue per Lawyer of $723,701. Likewise, Law Firm B’s Revenue
per Lawyer works out to $923,816, and for both firms combined, $778,094.
How does the Revenue per Lawyer for the lawsuit compare with other Boston law firms? Based
on the 2005 American Lawyer Am Law 200 Survey, Law Firm A’s Revenue per Lawyer is about
1.8 percent above the Boston average of $712,016. Law Firm B exceeds any Boston firm at
nearly 31 percent over the average. See Table 18, “Boston Law Firms Ranked by 2005 Revenue
per Lawyer.”
Table 18: Boston Law Firms

Ranked by 2005 Revenue per Lawyer
Revenue per
Firm
Lawyer
Firm B Lawsuit Revenue per Lawyer 930,816
Ropes & Gray 840,361
Fish & Richardson 805,556
Bingham McCutchen 790,667
Choate, Hall & Stewart 770,000
Goodwin Procter 749,097
Firm A Lawsuit Revenue per Lawyer 723,710
Brown Rudnick Berlack Israels 715,000
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo 588,235
Foley Hoag 575,000
Edwards Angell Palmer & Dodge 574,227
We can also estimate the lawsuit’s Profit per Partner. This calculation is much more speculative
than that for Revenue per Lawyer as it requires several critical assumptions, namely the firm’s:
 Equity partners. Many law firms now use a multi-tier partner system in which a senior
partner class, equity partners, hold the ownership of the firm and receive a significant
portion of the firm’s profits. A junior partner class, non-equity partners, is typically paid
a share of the firm’s profits but on a lower per-capita basis. The purpose of this structure
is to recognize senior attorneys as “partners” while maximizing profits per equity partner.
Since many firms do not disclose the number of actual equity partners, for our
calculations, we will assume only attorneys with an hourly billing rate of $500 or more
are equity partners.
 Expenses. Profits equal revenues less expenses. We know revenues as total billings, but
the firm’s actual expenses – compensation and overhead – are unknown. For our analysis
we will assume the “Rule of Three” that many law firms tend to follow in which hourly
billing rates are set such that an individual’s compensation and overhead expenses are
each one-third of their hourly billing rate. The remaining third are partnership profits.
We assume equity partners are not paid a salary, receiving their compensation solely
through partnership earnings. Finally, we conservatively assume that out-of-pocket
expenses are billed at cost, earning no profit.
 Annual billing hours. As we did for Revenue per Lawyer we assume that Senior (Equity)
Partners bill 1,800 hours per year and all others, 1,900 hours per year.

Based on these assumptions, Table 19, “Lawsuit Profit per Partner,” estimates the lawsuit’s
Profits per Partner for Law Firm A to be $1,455,432 and for Firm B, $2,068,949. The combined
Profit per Partner for both firms across the entire lawsuit is $1,608,149.
Table 19: Lawsuit Profit per Partner
Firm A Firm B Firms A & B

Hours
Senior (Equity) Partner 600 199 799
All Others 3,488 1,198 4,687
Total 4,089 1,397 5,486
Hourly Fees
Senior Partner 307,098 138,305 445,403
All Others 842,328 409,591 1,251,919
Total 1,149,426 547,896 1,697,322
Out-of-Pocket Fees 100,923 24,877 125,800
Total Revenues 1,250,349 572,773 1,823,122
Expenses
Senior (Equity) Partner
Salary - - -
Overhead 102,366 46,102 148,468
All Others
Salary & Bonus 280,776 136,530 417,306
Overhead 280,776 136,530 417,306
Out-of-Pocket Expenses 100,923 24,877 125,800
Total Expenses 764,841 344,039 1,108,880
Profit
Revenues 1,250,349 572,773 1,823,122
Expenses (764,841) (344,039) (1,108,880)
Total 485,508 228,734 714,242
Senior Partner Years 0.33 0.11 0.44
Profit per Partner 1,455,432 2,068,949 1,608,149
Ranked against other Boston law firms, the lawsuit was highly profitable. See Table 20, “Boston
Law Firms Ranked by 2005 Profits per Partner.” This is not surprising given the high leverage,
6.82 for Firm A and 10.1 for Firm B, employed during the case. As our earlier analysis showed,
junior attorneys worked long hours performing legal research, conducting discovery, filing
motions, managing expert witnesses and so forth. As a small company with modest ongoing
legal requirements the Plaintiff paid standard rates for its legal services. In contrast, larger, more
sophisticated corporate clients with long-term relationships would typically be able to negotiate
lower billing rates.
Litigation is one of law’s most profitable practice areas. As The American Lawyer joked in their
2006 Am Law 100 issue, “Teach a firm to fish, and it will eat for a day. Teach a firm to sue, and
it will eat forever. At least for this decade.”13 Pity the clients paying.

Table 20: Boston Law Firms
Ranked by 2005 Profits per Partner
Profit per
Firm
Partner
Firm B Lawsuit Profit per Partner 2,068,949
Firm A Lawsuit Profit per Partner 1,455,432
Goodwin Procter 1,245,000
Bingham McCutchen 1,220,000
Ropes & Gray 1,080,000
Choate, Hall & Stewart 965,000
Fish & Richardson 905,000
Brown Rudnick Berlack Israels 860,000
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo 835,000
Foley Hoag 605,000
Edwards Angell Palmer & Dodge 600,000
High leverage and high hourly rates generate high profits. Paralegals, associates and junior
partners billed nearly seven hours for every senior partner hour billed. And each of those hours
were expensive. Consider the hourly billing rates in Table 21.
Table 21: Comparative Hourly Billing Rates

(Assumes 1,800 billable hours for judges)
Actual Implied
Law Firm
Hourly Rate Annual Salary
Senior Partner B 695 Profit Sharing

Junior Partner A 430 272,333
Senior Associate B 345 218,500
Associate A 295 186,833
Paralegal B 190 120,333
Implied Actual
U.S. Judiciary
Hourly Rate Annual Salary (2005)
Chief Justice, Supreme Court 347 208,100

Federal District Judge 270 162,100
Federal Magistrate Judge 249 149,132
Today, as Table 21 illustrates, major law firms bill associates at rates exceeding the implied
hourly rates of Federal District Judges. Senior Associates bill at rates comparable to the Chief
Justice of the United States Supreme Court. Senior Partners earn far more. Of course, unlike
law firm partners, the Supreme Court’s Chief Justice is spared politely listening to clients
grumble over high legal fees.

COMPARATIVE ANALYSIS
Litigation is a very inefficient means for resolving business disputes. In our case, the issues
underlying the lawsuit were not particularly complex. Other than the ability to examine
computer records, they did not require an understanding of advanced science, mathematics or
economics. Our liability and damage claims could have been summarized in a short memo. Had
both parties been willing to do so, reasonable people acting in good faith could likely have
discussed the issues, found common ground and negotiated a settlement in a few days. Yet for
the Plaintiff alone, the lawsuit consumed over 7,000 hours and $2.4 million before it settled.
Had the case gone to trial, it is possible that cost would have been doubled.
Our experiences were not unique. The formality and structure of the legal process alone
necessarily makes litigation expensive. Beyond that, costs can escalate due discovery battles,
insufficient project and cost management, high hourly rates, and many other factors. How did
these factors affect costs? We can only estimate. But even a very rough estimate should be
helpful towards understanding litigation economics.
Our approach is simple. First calculate what we consider to be reasonable target costs for each
work product. Do this wherever possible based on standard business approaches. Then compare
these “index costs” with actual costs. The differences may yield insights into the comparative
costs of legal versus business practices. Caution interpreting the results is highly advised though
as we are comparing actual costs incurred in a hard-fought legal battle with a theoretical ideal.
Comparative Analysis: Expert Reports
The Expert Reports cost $969,553, or 40 percent of the lawsuit’s $2,443,068 total. The liability
report documented a technical analysis of computer logs expanding on earlier work done by the
Plaintiff’s chief technology officer. The damages report calculated alleged financial losses.
Similar technical and financial analysis is conducted in business. Is it possible to estimate what
these reports would have cost had they been done within a business context? Not precisely, of
course, but an estimate can be made as documented in Table 22, “Estimated Report Costs.”
As a business project the first step would typically be to solicit quotations for the work to be
performed from consultants either inside the company or outside. We estimate that, based on our
35 years of industry experience, competent consultants would charge approximately $20,000 and
$30,000 to complete a first draft of the liability and damages reports, respectively. We next
allocate management time and expense to define, organize and manage the process for which we
have allocated 40 hours and $10,000. This effort should then produce quality, first-draft reports
at a total estimated cost of perhaps $60,000. Typically, the first draft yields insights which merit
a major rewrite. Consequently, we have assumed a major rewrite for both reports yielding an
expected total cost of $90,000. This would be the budgeted cost against which we would
manage the project. However, the prudent manager would then add a contingency factor to
allow for the worst-case scenario. We have assumed a 100 percent contingency yielding a total
estimated cost of $180,000.

Table 22: Estimated Report Costs
Liability Damages Total

First Draft Reports
Hours 160 240
Burdened Hourly Rate $125 $125
Sub-total $20,000 $30,000 $50,000
Management Oversight
Hours 16 24
Burdened Hourly Rate $250 $250
Sub-total $4,000 $6,000 $10,000
Total $24,000 $36,000 $60,000
Review and Rewrite $12,000 $18,000 $30,000
Budgetary Total $36,000 $54,000 $90,000
Contingency Factor x2 x2 x2
Core Cost $72,000 $108,000 $180,000
Our estimates assume the work is being done by a small team of motivated, highly-competent
people. Not only does this reduce communication costs, the team’s high productivity usually far
outweighs any increased compensation costs.
If we take the worst-case costs of $72,000 and $106,000 as the experts’ fees and then allocate
attorney fees on a pro rata basis based on the actual costs incurred we derive a target, or index,
cost for the development of the expert reports as calculated in Table 23.
Table 23: Expert Reports Index Cost
Index Cost Pro rata based on Table 15

Liability Report
Technical Experts $72,000
Allocated Lawyer Expenses 40,603 [ = 88,111 x (72,000 / 156,243)]
Total 112,603
Damages Report
Financial Experts 106,000
Allocated Lawyer Expenses 59,777 [ = 261,496 x (106,000 / 463,702)]
Total 165,777
Index Cost $278,380
Our estimated index cost of $278,380 is far below the $969,553 actual cost of the reports. What
were the reasons? It is our opinion that there were four:
1. Cost-plus Orientation: The mindset in law is largely that of a “cost-plus” business.

Consequently, many lawyers arguably do not closely manage experts since they pass the
bills on to the client, and those bills compared to their own may not seem particularly
unreasonable. Nor can clients typically manage experts direcdtly since any
communication the clients have with their experts is discoverable in contrast to their
lawyers whose work is cloaked under work-product confidentiality. Clients also have

little negotiating leverage with their experts once they have been retained. Changing
experts during litigation is not only expensive but also gives the opposition opportunity to
question the change and perhaps claim the final expert opinion was “shopped.”
2. Leveraging Junior People: Many expert witness firms seem to have adopted the law
firm leverage model whereby senior experts largely delegate the actual work to junior
staff members. It was our experience that the expert firms were even more leveraged
than our law firms with the equivalent of their associates doing ninety percent or more of
the work.
3. High Legal Rigor Requirement: Finally, legal reports, to a degree greater than that in
normal business, must withstand highly critical scrutiny in the opposition’s efforts to
undermine the report’s credibility and conclusions. The report must be carefully
reasoned, each step highly defensible when challenged during sworn testimony. This
increases costs since assumptions must be justified, methodology explained, sources
referenced and weaknesses anticipated.
Together these factors were responsible for two moderately-complex reports costing nearly one
million dollars. The Plaintiff considered these costs very high. We summarize in Table 24.
Table 24: Expert Reports Actual vs. Index Costs
Reasons for Actual Cost Actual Cost Index Cost Ratio
Expert Reports 1. Cost-plus Orientation $969,553 $278,380 29%

2. Leveraging Junior People
3. High Legal Rigor Requirement

Comparative Analysis: Discovery
Expenses related to Fact Discovery were $1,212,596 or just under 50 percent of the $2,443,068
total. Discovery is uniquely a legal process making it much more difficult to base our analysis
on standard business practices. Fortunately depositions are a well-defined effort. In the lawsuit
there were 18 total, each limited to a maximum of seven hours by Federal Rule 30(d)(2). We
will start there.
Of the 18 depositions, ten were by the Plaintiff and eight by the Defendants. Each deposition
consists of three steps: preparation, the deposition itself and post-deposition analysis. The steps
vary by whether the deposition is being taken or defended. Defending a deposition requires that
the issues on which the deponent may be questioned be researched, that the deponent be
prepared, that a lawyer be present during the deposition, and afterwards that post-deposition
analysis be conducted. Taking a deposition is similar except no deponent is prepared, of course.
In both cases, the actual deposition was limited to seven hours. Starting with these steps as the
core process, we estimate the following expenses in Table 25:
Table 25: Estimated Core Deposition Expense
Taking Defending Total

Hours
Preparation 8 4
Deponent Preparation - 4
Deposition 10 10
Post-Deposition Analysis 8 4
Total per Deposition 26 22
Number of Depositions x 10 x8 18
Total Hours 260 176 436
Hourly Rate (Table 7) x $361 x $361 x $361
Total Lawyer Fees $93,860 $63,536 $157,396
Court Reporter (Table 12) 25,970 - 25,970
Core Expense $119,830 $63,536 $183,366
The average hourly rate of $361 is derived from Table 7, “Hourly Billings by Task and
Individual” ($189,513/525). The estimated costs of $183,366 are for the depositions alone and
do not include costs associated with discovery motions and related expenses. We consider these
along with communications and document management expenses separately. Our $183,366
estimated expense is 85 percent of the $215,482 direct expense calculated for depositions in
Table 12, “Discovery Expenses.”
Next we consider document discovery. Unfortunately, we do not know the amount of

information exchanged during document discovery. Much of the exchange was confidential and
limited to lawyers only. Table 12 documents direct expenses for document discovery as
$294,455. Since we have little basis for estimating costs, we accept this amount as the core
document discovery costs.

Together, our estimated core cost for depositions and document discovery is $518,253, about 43
percent of the total $1,212,596 discovery expense. The remaining 57 percent, $694,343, was
supportive expenses for motions, legal research, document management, communications and
unclassified tasks. How would one compare these discovery efforts to a business equivalent?
The answer probably lies with the 12 Motions for Extension of Time that were filed during the
lawsuit starting with the first on April 6, 2004, three weeks after the original complaint was filed.
The presiding judge in her original scheduling order filed June 17, 2004 called for fact discovery
(i.e. depositions and documents but not experts) to be completed by February 1, 2005. Yet when
the case settled January 31, 2006 fact discovery had not been completed and in that month alone
additional motions were filed requesting time extensions. Assuming these motions were granted
(as nearly all others were) our best estimate is that fact discovery would have closed within a few
months. Let’s assume April 1, 2006.
Had the lawsuit met the judge’s original schedule, fact discovery would have required
approximately 33 weeks (June 17, 2004 – February 1, 2005). Instead it had already consumed
85 weeks at settlement and likely would have consumed approximately 93 weeks (June 17, 2004
– April 1, 2006) had the case continued.
These discovery time periods are probably our best proxy for the difference of a legal versus
business approach. If a 33 week discovery period is defined as 100 percent efficient, then a 93
week period may be considered as 35 percent (33/93) efficient. Certainly the shorter the time
period, the less time is available for overhead such as motions, legal research and staff meetings.
If we pro rate the $694,343 in supportive expenses by 35 percent, we have $243,020 as an
estimated core expense for discovery’s supportive expenses.
Together, the estimated core expenses for depositions, document discovery and supportive tasks
total $720,841, 59 percent of the $1,212,596 actually spent. We discussed the causes for many
of these additional costs earlier in Case Study of a Discovery Dispute. Summarizing, the
following factors in our opinion contributed to the high costs of discovery:
1. Insufficient Judicial Oversight: Judicial oversight naturally suffers when the Bench’s
technical, legal and clerical resources are limited relative to their case load or the
resources of litigants who can overwhelm the court with opposing arguments.
2. Lack of Precedent: Our legal principles are based on a historical succession of judicial
decisions. New technologies lack precedent. Lacking precedent the courts struggle to
sort out complex, partisan arguments from opposing lawyers resulting in slow and
sometimes what to the client appear to be arbitrary judicial decisions.
3. Overuse of Confidentiality: Protective orders and confidentiality are justified when
competitive issues are involved, but often are used to shield useful or simply
embarrassing information from opposing litigants. This can significantly limit the
client’s understanding of critical issues and consequently his management of the case.
4. Weak Efficiency Ethic: Legal ethics focus on confidentiality, conflicts, decorum,
competence, fairness and the respect for rights. The ethic to constantly improve
efficiency, so common in business, is not nearly so strong in law.

5. The Billable Hour: High hourly rates (e.g. $190 for paralegals to manage copies, $695
for partners even while traveling), the pressure to leverage associates and law’s
increasing focus on profits per partner all contribute to the high cost of legal work.
We summarize our Discovery analysis in Table 26.
Table 26: Discovery Actual vs. Index Costs

Depositions $215,482 $183,366 85%
Documents $294,455 $294,455 100%
Motions and Related $702,659 $243,020 35%
Total Discovery 1. Insufficient Judicial Oversight $1,212,596 $720,841 59%

2. Lack of Precedent
3. Overuse of Confidentiality
4. Weak Efficiency Ethic
5. The Billable Hour
Comparative Analysis: Complaint and Settlement
Relative to Expert Reports and Discovery, expenses for the Complaint and Settlement efforts
were small together totaling $260,919 or 11 percent of the $2,443,068 total.
Complaint expenses were $140,175 which included filing the initial complaint, defending it and
unsuccessfully opposing counterclaims filed by the Defendant. The primary inefficiency during
the Complaint phase was due to the propensity for both sides to file motions or oppositions to
motions regardless of the probability for success. With competent lawyers on both sides, most of
these efforts were unsuccessful. Good lawyers do not file weak court pleadings when strong
opposition is sure to oppose and likely defeat it. But the practice is prevalent because (i) it is
relatively inexpensive, (ii) occasionally yields results, and (iii) starts the litigation off with a few
well-thrown punches, often for the client’s benefit who is urging his attorney to “get tough.”
The Plaintiff’s original complaint was filed March, 2004. Through the end of March only 90
total hours had been billed, or 20 percent of the 453 total hours billed for Complaint efforts
through October, 2004. How much of the remaining 80 percent of the expense incurred from
April through October was truly productive effort? Very difficult to say but perhaps best
answered with a risk/reward question. Had the Plaintiff’s management in early April estimated
i) additional complaint-related costs to oppose the opposition to be approximately $112,000 (80
percent of $140,175) and, ii) the probability of success to be low, say under 25 percent, would
they have proceeded? Likely not. This assumes the Defendants do a similar analysis, because if
they file a motion to dismiss the Plaintiff must oppose it.
The Defendants, however, were successful both in eliminating a few elements of the Plaintiff’s
original complaint and also filing counterclaims. So these efforts were justified. Yet most
efforts for both litigants were unsuccessful and simply increased costs. Based on this reasoning,
we assume that a third of the 80 percent in expenses incurred after the original complaint were

productive. This yields Complaint-related expenses of 47 percent (20 + (80/3)) which we round
to 50 percent given the imprecision of our estimate for an estimated Complaint index cost of
$70,088.
Regarding Settlement, actual expenses were $120,744 distributed over a year and a half.
However, 77 percent of those expenses were incurred supporting court-mandated settlement
discussions in mid-2005. In some respects the sessions resembled a mini-trial. During the two
sessions when litigants met with the mediating judge as many as six total attorneys were present
representing both litigants. Significant effort was devoted to preparing position papers, a case
book and supporting files as well as simply attempting to schedule all parties which consumed
weeks.
Yet the decision whether to settle was clearly being driven by the clients themselves, both of
whom were present and already well understood the basic issues in the case. So in retrospect
much of the expense associated with the formality and broad lawyer participation could have
been avoided – it simply did not matter.
As a means of estimating a Settlement index cost let’s again, in retrospect, ask a risk/reward
question. Knowing the likelihood of settlement to be low (Several key aspects of discovery had
not been completed and, in particular, the Plaintiff was scheduled to submit their expert reports
in less than three months. The Defendants would likely delay any settlement until seeing those
reports.), would the Plaintiff authorize $92,563 to be spent for court-mediated settlement
discussions? No. How much? Maybe 20 partner hours plus another 20 associate hours for
preparation. That would total $14,820 (20hrs x $511 + 20hrs x $230 using hourly rates from
Table 1, “Hourly Billings by Individual”). If we assume the other settlement-related expenses,
$28,181, were appropriate, we have a total Settlement index cost of $43,001 which, again in
consideration of the imprecision of our estimates, we round up to $45,000, 37 percent of the
actual expense.

Comparative Analysis: Total Lawsuit
Consolidating our results in Table 27, “Lawsuit Actual vs. Index Cost” we estimate the lawsuit’s
total index cost to be $1,114,309, or 46 percent of the actual costs.
Table 27: Lawsuit Actual vs. Index Cost

Complaint Limited Risk/Reward Analysis $140,176 $70,088 50%
Discovery Lack of Judicial Oversight 1,212,596 720,841 59%
Lack of Precedent
Overuse of Confidentiality
Weak Efficiency Ethic
The Billable Hour
Expert Reports Cost-plus Orientation 969,553 278,380 29%
Leveraging Junior People
High Legal Rigor Requirement
Settlement Limited Risk/Reward Analysis 120,744 45,000 37%
Total $2,443,068 $1,114,309 46%
The Index Cost is theoretical, an ideal very much open for disagreement. It assumes each
element of the lawsuit is executed optimally, reducing the total hours consumed in the ideal case.
However, once we estimated those ideal hours, they were multiplied by the hourly rates of the
actual lawsuit to derive the index cost. Were those actual rates optimal? In a truly competitive
market, would a responsible client pay $190 an hour for paralegals to administer photocopying?
Or $695 an hour for a partner’s travel time? Perhaps not, but estimating ‘optimal’ hourly rates is
far more difficult than estimating the cost of a financial report, or simply eliminating formality
expenses associated with settlement. So we retained the actual rates. Had we used lower hourly
rates to calculate our index costs, our comparative ratios would have been significantly reduced.
Even at 46 percent of the actual costs, litigation is expensive. Had the case continued additional
work would have been required prior to trial including the resolution of discovery disputes,
expert depositions, expert report revisions and pre-trial motions. These expenses would likely
have increased pre-trial index costs to $1.5 million, or more.

SUMMARY
Every reasonable effort was made to conduct our analysis as accurately and objectively as
possible. Underpinning the analysis were the law and expert firms’ monthly invoices submitted
over the two year period of the lawsuit. The law firms’ invoices contained 1,631 hourly billing
records which were allocated into 3,281 specific tasks. Although the expert firms’ invoices were
less precise, a similar approach was taken. These tasks were then analyzed from multiple
perspectives including costs by attorney, law firm, work product and lawsuit phase. When
possible we attempted to supplement the raw statistics through comparisons, ratios and industry
metrics.
We close our study with a summary followed by a brief discussion of the factors contributing to
what many believe to be civil litigation’s primary weaknesses.
Overall Costs
 The Plaintiff’s total lawsuit expenses were $2,443,068 consisting of $1,697,322 in
attorney fees, $619,946 for expert witnesses and $125,800 for out-of-pocket expenses. A
total of 7,691 hours were billed, 5,486 by lawyers and 2,205 by experts.
 Complaint-related expenses were $140,175 and 453 hours. Discovery expenses were
$1,212,596 and 3,771 hours. Expert Report expenses were $969,553 and 3,101 hours.
Settlement-related expenses were $120,744 and 367 hours.
 Together Law Firms A and B billed 799 hours for Senior Partners and 4,687 hours for all
others, a 6.87 leverage ratio.
 Expenses for Discovery and Expert Reports were 90 percent of the lawsuit’s total cost
billing 6,872 hours.
Comparative Analysis and Cost Factors

 Our Comparative Analysis estimated the lawsuit’s index cost at $1,114,309 versus the
actual cost of $2,443,068, about 46 percent. The Expert Reports’ development had the
highest comparative costs in the lawsuit. The Comparative Analysis estimated an index
cost of $278,380. The actual cost was $969,553, or 3.4 times higher.
 104 Court pleadings were filed by the litigants during the lawsuit including 12 Motions
for Extension of Time, about one every two months. $297,099 was spent by the Plaintiff
directly for Pleadings and Hearings.
 During Discovery, dispute-related expenses were $545,060, larger than the $509,937
spent for actually producing and reviewing the evidence itself.
 9.3 Percent of all days billed exceeded eight billed hours. Two attorneys billed 25 and 33
percent of their days over eight hours. The longest day billed was18.3 hours.
 Communication costs for meetings, telephone and email totaled $478,864 and 1,295
hours. Communications with the opposing lawyers consumed 411 hours. 628 Hours
were expensed by our lawyers communicating among themselves. In contrast, only 18
hours were spent attending court hearings.
 Photocopy expenses were $28,102, sufficient to generate a stack of paper 94 feet high at
ten cents a copy. Legal research totaled $122,316: $99,909 in fees for 377 billed hours
and $22,407 for on-line database services.

 In several instances billing granularity seemed to decrease as hourly rates increased.
Several partners billed quarterly or even half hour increments.
 An hourly rate increase for five lawyers increased actual costs $65,318 in the first nine
months of 2005.
Comparative Law Firm Costs

 The senior partners at Firms A and B each billed an average of 2.5 hours and 2.3 hours
per day respectively, a difference of twelve minutes. The highest billing paralegals at
Firms A and B each averaged 4.3 and 4.2 hours per day, a difference of six minutes. The
highest billing senior associates at the two firms billed 3.3 and 2.7 hours per day, within
36 minutes of each other.
 Billing rates during each law firm’s three highest billing months averaged $282 for Law
Firm A and $392 for Firm B. Total time billed over the three month period were 1,208
hours for firm A and 1,152 hours for firm B, a difference of less than five percent.
 Law Firm A and B’s average billing rate was $281 and $374 per hour, respectively.
Hourly rates ranged from $121 for Firm A Paralegal to $695 for Firm B Senior Partner.
 The American Lawyer’s AmLaw 200 survey may be useful in predicting law firm billing.
The ratio of the two law firms’ average hourly rate during the lawsuit (1.331) is nearly
identical to their revenue per lawyer ratio (1.341) from the same year survey.
 The lawsuit’s estimated annualized Profits per Partner for Law Firms A and B were
$1,455,432 and $2,068,949, respectively. Ranked against Boston law firms, the lawsuit
appears to have been highly profitable for the law firms.
Of course, the unanswered question is given the Plaintiff’s high costs over the nearly two years
of the law suit, was it worth it financially? That question unfortunately must remain
unanswered.
The Core Issues: Efficiency and Accountability
Our experiences in the litigation just studied, by most accounts, were not unique. Indeed, we
were fortunate to have had our specific lawyers and experts representing us. Nearly inevitably
though, it seems that those involved in civil litigation have harsh comments regarding litigation’s
high costs, long delays and poor accountability.
Why is our system of civil litigation so poorly regarded by so many people? Much, maybe most,
of the dissatisfaction is based on impatience with the restrictions, procedures and limitations of
the law itself.14 Lawyers, as the personification of the law for many people, have been blamed
for these deficiencies for centuries going back at least to the Middle Ages: the condemnation of
lawyers at the Papal Legate Council of London in 1237, Shakespeare’s infamous quote "The first
thing we do, let's kill all the lawyers" in King Henry VI, Massachusetts farmers scorning lawyers
as "the pests of society" during Shays' Rebellion, the Jacksonian ethic of an elite and predatory
bar and that "every man can be a lawyer."15
However, in business litigation much of the dissatisfaction is based simply on what business
people consider the legal system’s disregard of two of its most cherished values: efficiency and
accountability. Consider a few of the issues discussed in the last section:

 Efficiency. Nearly a million dollars was spent developing two expert reports totaling 36
pages. Deposition expenses for 18 witnesses were $490,347, or about $3,900 per
deposition hour. $545,060 was spent on motions over disputed information. Twelve
hours of court-mandated settlement discussions cost $93,000. In today’s age of
electronic documents, $33,763 was spent on copying and distributing paper documents.
 Accountability. The court originally scheduled eight months for discovery; at the
lawsuit’s termination discovery had been ongoing for 22 months with much more
required. The court was presented with two fantastically disparate email-recovery cost
estimates ($30 million versus $140,000) and yet neither litigant was chastised for
submitting irresponsible estimates. Unannounced hourly rate increases for five attorneys
alone increased expenses over nine months by $65,316.
Our nation’s approach to civil litigation is based on an adversarial system in which courts
delegate the “search for the truth” to partisan attorneys. Unfortunately, our civil law system
allows, even encourages, attorneys to attempt to gain advantage through delay, obfuscation,
intimidation and manipulation during discovery, measures hardly conducive to fact-finding.
Law firms are under pressure to generate strong financial results; ever-growing profits per
partner are a prerequisite for attracting and retaining talent in today’s big firms. Financial
pressures coupled with abuses of hourly billing inflate costs.
The sad result is that much of nation’s system of justice is available only to those with the
financial resources to purchase it. For those cases that do commence, few go to trial; in 2005
only two percent of federal cases filed actually reached trial16,17 yet the Seventh Amendment to
our Constitution guarantees civil cases the right to trial by jury. For those few cases that actually
reached trial, many were extremely expensive and long delayed. And as William Gladstone
observed a century ago, “Justice delayed, is justice denied.”
No, the many issues we have discussed are not specific to individuals or firms, but are deeply-
rooted, systemic weaknesses of the U.S. civil litigation system. These issues are discussed in
more detail in A Call for Legal Entrepreneurship available at VallexFund.com/download/.
♦♦♦

APPENDICES

Appendix A
Expense Categorization
Law Firm Hourly Tasks
Accurately allocating the various expenses billed by the Plaintiff’s law firms and expert
witnesses into meaningful categories was a critical step in our analysis. We first segmented the
work performed on an hourly basis by the law firms into twelve categories, specifically:
Law Firm Hourly Tasks
Hearings: Meetings with the court and directly related work

Pleadings: Work related to Plaintiff and Defendant court filings
Research: Legal research including case law and statutes
Discovery: Plaintiff and Defendant fact discovery except depositions
Depositions: Deposition conduct and defense and directly related work
Experts: Communication with expert witnesses and review of their work
Opposition: Communication with opposing counsel except court and settlement
Client: Communication with the client except court and settlement
Settlement: Settlement meetings and directly related work
Internal: Plaintiff’s counsel internal meetings and communications
Administration: Paralegal tasks such as filing, copying, binding and hand delivery
Other: All other non-allocated hourly expenses
The most subjective part of our analysis was the categorization of the services documented in the
invoices into the above twelve categories. In general, this categorization process fell into one of
three cases. The first case was that for which the categorization was unambiguous, for example:
11/09/2005 [Attorney] Review materials for expert reports 15.25 $6,405.00
Here the task, “Review materials for expert reports,” clearly falls into the Experts category and
100 percent of the 15.25 hours and $6,405.00 fee were so allocated.
The second case required judgment as to how the billing should be allocated typically across two
or more categories. This block-billing, the bundling of descriptions, was common occurring in
about 60 percent of the hourly records even though American Bar Association guidelines
recommend against the practice.18 “It is disapproved because it allows a lawyer to conceal the
time spent on each task and prevents the determination of whether individual tasks were
performed within reasonable period of time.”19 Generally though deconstructing these bundled
tasks was fairly straightforward based on knowledge of the tasks and time requirements for at
least some of the described services, for example:
Comments? Visit VallexFund.com/Forum Page A-1

12/28/2005 [Attorney] Telephone conference with [name] re. 2.75 $1,155.00
strategy and status; review of pleadings
re. outstanding discovery matters;
telephone call with client re. status and
strategy.
In this case we were the participant in the second phone call and estimated the call to have lasted
approximately 15 minutes. The first call was made to a person who we knew to generally be
both succinct and cost conscious and so estimated his call also to have been 15 minutes. In all
cases, our allocations across categories were made in ten percent increments of the hours billed.
So twenty percent of 2.75 hours billed (33 minutes) were allocated to the Client category and the
remaining eighty percent (2.2 hours) to Pleadings since the review dealt with court documents
rather than actual discovery documents.
However, the third cases were often much more difficult. In these cases, generally involving
three or more allocations, it was not easy to categorize the services. This is a typical example:
06/14/2004 [Attorney] Review and edit Defendants motion to 4.60 $1,288.00

dismiss and motion to stay discovery;
research federal case law regarding
same; assist with preparation of hearing
binder; conference with opposing counsel
regarding hearing of motion to dismiss;
draft email to [name] and [name]
regarding same.
This billing involves five separate activities easily characterized by category but difficult by time
allocated. In these cases, particularly those billing three or more hours, our approach was to first
allocate the minimum ten percent to those tasks which likely took that or less time. For the
billing above, those tasks would be “conference with opposing counsel…” and “draft email to
[name] and [name]…” where the email recipients were two senior attorneys. Thus the
Opposition and Office categories were each allocated 27.6 minutes (10 percent of 4.6 hours)
leaving eighty percent of 4.6 hours, or 3.68 hours, to remaining. We then allocated twenty
percent, or just under an hour, to Research for “research federal case law regarding [motion to
dismiss and motion to stay discovery].” Obviously, this is an educated guess – but with today’s
legal databases, could it possibly take more time to research precedent for such common
motions? Finally, we allocated the remaining sixty percent, 2.76 hours, to Pleadings since the
two remaining tasks dealt with the preparation of court documents.
A total of 3,281 allocations, each defining a specific task, were made against 1,631 hourly
billings records. Of the total records, 660 (40%) fell under a single category, 506 (31%) under
two categories, 287 (18%) under three categories, 145 (9%) under four categories and 33 (2%)
under five or more categories. Although tedious and time-consuming, care was taken to make
the categorizations as accurately as possible since the results formed the foundation for the
remaining analysis. Certainly, the 71 percent of records falling under one or two categories
suggests the majority of expenses should easily have been accurately categorized.

Law Firm Out-of-Pocket Expenses
Next, we segmented the law firm fees billed as out-of-pocket expenses. By comparison with
their hourly fees this was straightforward and unambiguous. With very few exceptions, these
charges were clearly categorized on the monthly invoices. A typical statement being June, 2004:
Computer research $ 677.86

Express delivery 82.06
Food services 7.50
Hand delivery 16.25
Photocopying 330.40
Postage 4.47
Telecopier 126.50
Telephone 38.48
Travel & related expenses 154.40
Total Current Charges $1,437.92
Since the naming of the charges changed both over time and across law firms, we organized the
out-of-pocket expenses into the following eight categories:
Law Firm Out-of-Pocket Expenses
Professional Services
Photocopies
Court Reporter
Computer Research
Travel, Meals & Related
Postage, Fax & Express Delivery
Telephone
Court Fees
Expert Witness Expenses
The expert witness hourly and out-of-pocket expenses were allocated into their own, single
category since in most cases there was insufficient invoice detail to make a meaningful
allocation. One firm simply provided a monthly accounting of the total hours and fees charged
by each expert, for example:
… … …
[Expert] 167.00 $54,275.00
[Expert] 63.75 18,487.50
[Expert] 198.50 41,685.00
[Expert] 91.50 13,725.00
… … …
Total Services 796.20 $192,854.50

The invoice then provided a listing of the high-level work performed by the firm during the
month…
1. Review and analysis of client billings, discount, and

financial statement data received from Shareholder.com.
2. Review of documents received from [Defendant].
…
…
…
26. Job Administration
Similarly, out-of-pocket charges billed by the expert witnesses were difficult to categorize such
as the following example from October, 2005:
Meals $ 439.01
Travel 286.00
Misc. Reimbursable Expenses 10,215.47
Expenses $10,940.48
The expert witness fees, totaling $619,946 for the case, should not be confused with the Experts
category under Law Firm Hourly Tasks. These law firm tasks relate to attorney/expert
communications and their review of the experts’ work.
Law Firm Hourly Billing Rates
Finally, we categorized the law firm billings by hourly billing rates. These hourly rates ranged
from a low of $95 per hour for paralegal work to a high of $695 for senior attorneys. We
segmented these rates into four categories:
Law Firm Hourly Rates
Attorney 1 $500 - $695

Attorney 2 $350 - $499
Attorney 3 $200 - $349
Paralegal $95 - $199
Attorneys billing at the Attorney 1 rate were senior partners of the law firm. Attorneys billing at
the two lower rates were generally junior partners, associates or attorneys practicing as of
counsel, non-partner senior attorneys.
We did not categorize the expert hourly rates due to insufficient billing detail.
The categorization results for lawyer hours, out-of-pocket expenses and experts’ fees are
documented in Appendix C, “Billing Records.”

Appendix B
Expense Allocation
The analysis described in Appendix A resulted in 1,631 lawyers’ hourly billing records being
segmented into 12 task categories totaling 3,281 discrete tasks. These tasks were exclusively
those billed hourly by the law firms. Those expenses along with expert report and out-of-pocket
expenses were then segmented into two classes: direct and allocated.
Expenses were assigned as direct when clearly identifiable with a specific work product such as
“Review material for expert reports.” The remaining expenses were defined as allocated since
their relation to a specific work product was unclear, “Office conference with [Firm B Attorney]
regarding outstanding tasks,” for example. All expert expenses were defined as direct. Table B-
1, “Total Direct and Allocated Expenses,” summarizes the results of this segmentation:
Table B-1
Total Direct and Allocated Expenses
Direct Allocated Total

Dollars 1,431,456 1,011,612 2,443,068
Hours 4,389 3,302 7,691
Dollars / Hour 326 306 318
The next step was to assign the $1,011,612 in allocated expenses to specific work products
within each time phase. This was, in general, done on a pro rata basis and as such was, of
course, an estimate. For example, if during a particular period 70 percent of the direct expenses
were discovery related and 30 percent settlement related, 70 percent of the allocated expenses
would be assigned to discovery and 30 percent to settlement. In certain cases, allocated expenses
were assigned totally to a specific work product. This was done when it could be deduced that
the expense related solely to that work product. The total allocation of motions and legal
research to the Complaint work product during the Complaint time period is an example.
Table B-2, “Allocation Assignments,” documents the specific allocation assignments for each
work product and time period. Note that percentages in the table are rounded to the nearest
integer. Consequently the work product expenses calculated in the analysis may differ by as
much as a half-percentage point.

Table B-2,
Allocation Assignments
Complaint Discovery Experts Settlement

Allocated Expenses ($1,011,612)
Motions $ - $ 137,268 $ 15,567 $ 12,454
Legal Research 51,577 47,511 21,168 2,059
Document Management 13,771 117,938 30,121 2,595
Communications 67,462 341,243 67,466 12,056
Unclassified 12,948 45,075 11,606 1,725
Total $ 145,758 $ 689,035 $ 145,929 $ 30,889
Assignment Percentages
Complaint
Motions 100% 0% 0% 0%
Legal Research 100% 0% 0% 0%
Document Management 52% 0% 0% 0%
Communications 52% 0% 0% 0%
Unclassified 52% 0% 0% 0%
Discovery: Depositions
Motions 0% 42% 39% 0%
Discovery: Documents
Motions 0% 58% 61% 100%
Expert Reports
Motions 0% 0% 0% 0%
Settlement
Motions 0% 0% 0% 0%

Appendix C
Billing Records
Lawyers, experts and out-of-pocket billing records in Excel format are available at…
http://www.VallexFund.com/Download/1-04-cv-10535_billing.xls

Appendix D
United States District Court

District of Massachusetts (Boston)
CIVIL DOCKET FOR CASE #: 1:04-cv-10535
Doc
Filed Terminated Description
No.
03/16/2004 Summons Issued

03/16/2004 Magistrate Judge Assignment
1 03/16/2004 Complaint
2 04/06/2004 04/12/2004 Motion for Extension of Time
3 04/06/2004 Notice of Appearance
4 04/09/2004 Affidavit of Service
04/12/2004 Order on Motion for Extension of Time
5 04/14/2004 04/30/2004 Motion for Leave to Appear Pro Hac Vice
6 04/14/2004 Certificate of Good Standing
9 04/14/2004 Corporate Disclosure Statement
10 04/29/2004 Order of Recusal
04/30/2004 Order on Motion for Leave to Appear
11 04/30/2004 Notice of Reassignment
12 05/06/2004 06/18/2004 Motion to Dismiss
13 05/06/2004 Memorandum in Support of Motion
14 05/20/2004 Amended Complaint
15 05/20/2004 Opposition to Motion
16 05/25/2004 Notice of Hearing on Motion
17 05/25/2004 Notice of Scheduling Conference
18 06/07/2004 03/03/2005 Motion to Dismiss/Lack of Jurisdiction
20 06/09/2004 Joint statement re scheduling conference
21 06/15/2004 Memorandum in Opposition to Motion
22 06/15/2004 Corporate Disclosure Statement
23 06/15/2004 Certificate of Consultation
06/17/2004 Motion Hearing
25 06/17/2004 Order Referring Case to ADR
26 06/17/2004 Scheduling Order
06/18/2004 Order on Motion to Dismiss
24 06/21/2004 Document disclosure
06/24/2004 Notice of assignment to ADR Provider
27 07/07/2004 Notice of ADR Conference
28 07/08/2004 Answer to Amended Complaint
29 07/27/2004 10/07/2004 Motion to Dismiss
31 08/10/2004 Answer to Complaint
33 09/01/2004 Answer to Counterclaim
34 09/13/2004 Notice of Hearing on Motion
10/07/2004 Terminate Motions
35 10/07/2004 Notice (Other)
10/18/2004 Proposed Document(s) submitted

37 10/25/2004 Protective Order
36 10/26/2004 Notice of ADR Conference
38 11/29/2004 03/02/2005 Motion to Compel
39 11/29/2004 03/02/2005 Motion to Seal
40 12/09/2004 Letter/request (non-motion)
41 12/13/2004 03/02/2005 Motion to Seal
12/17/2004 Notice Resetting/Cancelling Deadline
42 12/17/2004 Order Referring Motion
43 12/17/2004 Order Referring Case to Magistrate Judge
44 12/17/2004 12/20/2004 Motion to Quash
46 12/17/2004 Affidavit in Support of Motion
12/20/2004 Order on Motion to Quash
47 12/23/2004 03/02/2005 Motion to Compel
49 12/23/2004 03/02/2005 Motion to Compel
50 12/23/2004 03/02/2005 Motion to Seal
53 12/30/2004 03/02/2005 Motion to Compel
54 12/30/2004 03/02/2005 Motion to Seal
60 01/05/2005 01/11/2005 Motion for Extension of Time to Complete Discovery
55 01/07/2005 03/02/2005 Motion to Seal
56 01/07/2005 03/02/2005 Motion to Compel
58 01/10/2005 01/12/2005 Motion for Leave to Appear Pro Hac Vice
01/11/2005 Order on Motion for Extension of Time to Complete Discovery
59 01/11/2005 Certificate of Consultation
66 01/11/2005 03/02/2005 Motion to Seal
67 01/11/2005 Reply to Response to Motion
68 01/11/2005 Affidavit
69 01/11/2005 03/02/2005 Motion to Seal
84 01/11/2005 03/02/2005 Motion for Protective Order
01/12/2005 Order on Motion for Leave to Appear
01/12/2005 Filing Fee Received
01/13/2005 Order on Motion for Leave to File
61 01/13/2005 01/13/2005 Motion for Leave to File
64 01/13/2005 03/02/2005 Motion to Seal
65 01/13/2005 Affidavit
01/14/2005 Notice of Hearing on Motion
71 01/14/2005 03/02/2005 Motion to Seal
01/21/2005 Notice of Hearing on Motion
72 01/25/2005 03/02/2005 Motion to Seal
73 01/25/2005 03/02/2005 Motion to Seal

96 01/25/2005 Response to Motion
75 02/02/2005 03/02/2005 Motion to Seal
02/10/2005 Motion Hearing
78 02/15/2005 03/03/2005 Motion to Compel
81 02/15/2005 02/25/2005 Motion to Seal
02/25/2005 Order on Motion to Seal
108 02/25/2005 04/12/2005 Motion to Amend
02/28/2005 Terminate Documents
03/01/2005 Notice Resetting/Cancelling Deadline
100 03/01/2005 03/08/2005 Motion to Seal
85 03/02/2005 Order on Motion to Compel
03/08/2005 Electronic Endorsement (non-order)
03/08/2005 Mail Returned
105 03/18/2005 Scheduling Order
106 03/28/2005 05/03/2005 Motion for Miscellaneous Relief
04/12/2005 Order on Motion to Amend
113 04/12/2005 Amended Complaint
114 04/19/2005 Notice (Other)
115 04/19/2005 04/25/2005 Motion to Seal
119 04/22/2005 04/25/2005 Motion to Seal
120 04/25/2005 04/26/2005 Motion to Seal
122 04/25/2005 Order on Motion for Protective Order

05/03/2005 Order on Motion for Miscellaneous Relief
05/17/2005 Set/Reset Hearings
128 05/18/2005 11/17/2005 Motion to Seal
129 05/18/2005 Answer to Counterclaim
130 05/18/2005 06/13/2005 Motion to Quash
05/19/2005 Notice of correction to docket made by Court staff
131 06/01/2005 11/17/2005 Motion to Seal
134 06/10/2005 11/17/2005 Motion to Seal
06/13/2005 Reopen Document
135 06/13/2005 Notice of Scheduling Conference
139 06/20/2005 12/27/2005 Motion to Compel
140 06/20/2005 11/17/2005 Motion to Seal
142 06/24/2005 Notice of Withdrawal of Appearance
145 07/06/2005 11/17/2005 Motion to Seal
188 07/06/2005 Sur-Reply to Motion
147 07/07/2005 Notice (Other)
149 07/08/2005 11/17/2005 Motion to Seal
153 07/12/2005 11/17/2005 Motion to Seal Document
154 07/12/2005 Transcript
155 07/22/2005 11/17/2005 Motion to Seal
156 07/22/2005 11/17/2005 Motion to Seal
08/16/2005 Order

159 09/16/2005 11/17/2005 Motion to Seal
09/19/2005 Order
163 09/22/2005 Affidavit
164 09/27/2005 09/30/2005 Motion to Modify
167 09/29/2005 Report of Alternative Dispute Resolution Provider
09/30/2005 Order on Motion for Modification
173 09/30/2005 11/17/2005 Motion to Seal
174 09/30/2005 11/17/2005 Motion to Seal
200 09/30/2005 12/27/2005 Motion to Compel
171 10/03/2005 10/11/2005 Motion to Withdraw as Attorney
172 10/04/2005 11/19/2005 Motion to Withdraw as Attorney
10/11/2005 Order on Motion to Withdraw as Attorney
176 10/12/2005 Response
178 10/31/2005 11/14/2005 Motion to Seal Document
182 11/11/2005 Notice (Other)
11/17/2005 Order on Motion for Miscellaneous Relief
11/17/2005 Order on Motion to Seal Document

11/19/2005 Order on Motion to Withdraw as Attorney
201 12/21/2005 12/27/2005 Motion to Seal
202 12/21/2005 01/31/2006 Motion to Compel
203 12/21/2005 Affidavit
205 12/21/2005 01/31/2006 Motion to Compel
207 12/27/2005 Order on Motion for Miscellaneous Relief
206 12/28/2005 Notice of Rescheduling
01/04/2006 Set/Reset Motion and R&R Deadlines/Hearings
210 01/04/2006 01/05/2006 Motion for Extension of Time to File Response/Reply
212 01/04/2006 Order on Motion for Protective Order
01/05/2006 Order on Motion for Extension of Time to File Response/Reply
214 01/13/2006 01/19/2006 Motion to Seal
217 01/20/2006 01/31/2006 Motion for Clarification
219 01/25/2006 Notice regarding mandatory use of ECF
220 01/27/2006 01/30/2006 Motion for Extension of Time to File
01/30/2006 Order on Motion for Extension of Time to File
01/31/2006 Terminated Case
221 01/31/2006 Stipulation of Dismissal

Sources
1
U.S. District Court (Boston), Case #: 1:04-cv-10535, http://pacer.psc.uscourts.gov
2
The American Lawyer, Recession Resistant, (May, 2006) page 70
3
Yale Law School Development Office, The Truth About the Billable Hour,
http://www.law.yale.edu/documents/pdf/CDO_Public/cdo-billable_hour.pdf (accessed May 15, 2007)
4
Mari H Leigh, Miki Schroeder, Donna Wolf, U.S. Business Litigation, (November 1997) pages 16-17
5
The American Lawyer, Cornering the Premium Work, (June 2006) pages 137-140
6
Cameron Stracher, Double Billing, (1998) page 125
7
U.S. District Court (Boston), Case #: 1:04-cv-10535, http://pacer.psc.uscourts.gov
8
American Bar Association Commission of the Renaissance of Idealism in the Legal Profession,
August, 2006 page 2
9
Court Order, U.S. District Court for the Western District of Texas, Austin Division, Case A-06-CA-
594-SS, April 25, 2007
10
Wayne D. Brazil, Views from the Front Lines: Observations by Chicago Lawyers About the System of
Civil Discovery, American Bar Foundation, (1980) Footnote 27
11
Plaintiff’s law firm junior partner “that the full engagement…,” private email message to Ron Gruner
[[email protected]], 18 Feb 2005
12
Aric Press, Adding Value, The American Lawyer, (July 1, 2005)
13
The American Lawyer, The Century Thus Far, (May, 2006) page 125
14
Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, American
Bar Association Volume XXIX (1906), pages 396-397
15
Judge Louis A, Craco et al, Final Report of the Committee on the Profession and the Courts (1995)
pages 17-18
16
Administrative Office of the U.S. Courts, 2005 Annual Report of the Director
17
The New York Times 2007 Almanac, pages 134-135
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ABA Commission on Billable Hours Report 2001-2002, (August, 2002) pages 65-66
19
Gerald F. Phillips, Reviewing a Law Firm’s Billing Practices, The Professional Lawyer (Fall 2001)
page 11

Anatomy of Lawsuit.

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ANATOMY OF A LAWSUIT

A Client’s Analysis and Discussion of a Multi-Million Dollar Federal Lawsuit

© 2008 Vallex Investments, Inc. All Rights Reserved.

To Understand… Read… Pages…

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WORK PRODUCTS ...................................................................... 13

INDUSTRY METRICS .................................................................. 40

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Figure 1: Cumulative Legal Expenses

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Table 1: Hourly Billings by Individual

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Firm A Associate 28 Sep 2005 13.8 hrs $3,243.00

Firm A Senior Associate 12 Jul 2005 13.3 hrs $4,189.50

Firm B Junior Partner 10 Nov 2005 18.25 hrs $7,665.00

Firm A Junior Partner 29 Mar 2005 8.5 hrs $3,697.50

Firm B Senior Partner 01 Nov 2005 11.0 hrs $7,645.00

Firm A Paralegal 13 Jul 2005 10.5 hrs $1,260.00

Firm B Associate 28 Sep 2005 14.3 hrs $4,147.00

Firm B Associate 12 Oct 2005 9.6 hrs $3,312.00

Firm B Paralegal 17 Oct 2005 8.8 hrs $1,672.00

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Figure 2: Hours Billed in Single Day

Table 2: Lawyers Billing Long Days

Associate Sr. Associate Jr. Partner Associate Total

Total Hours: 1,310 878 595 187 2,970

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Impact of Annual Rate Increases and Time Tracking

Table 3: Law Firm A Rate Increases

Dollars per Hour 2005

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Figure 3: Firm A Paralegal Figure 4: Firm A Associate

Figure 5: Firm A Junior Partner Figure 6: Firm B Junior Partner

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Hourly Billings: by Professional Level

Table 4: Hourly Billings by Professional Level

Law Firm A Law Firm B

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Firm B Firm A Ratio

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Hearings ..................Meetings with the court and directly related work

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Senior Senior Junior Junior Senior All

Total Dollars 305,117 301,202 258,724 250,005 146,439 138,305 297,531

If lawyers were as taciturn as judges, litigation would be much cheaper.

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Expert Witness Expenses

Table 8: Expert Witness Fees and Hours

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Professional Services $ 33,149

Overview of Work Products

 Filing, amending and defending a complaint against the Defendants.

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Table 10: Direct, Expert and Allocated Expenses

Complaint Discovery Experts Settlement

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