I did not intend to return, yet again, to the summary judgment opinion in Sellers as gist for a blog post. Something about it that I haven’t touched on yet, however, keeps overlapping with other developments which caught my attention because of their relationship to long standing interests of mine related to trial work, discovery, the rules of civil procedure and the costs of litigation – in particular, how do we continue to decide matters by trial when the costs of discovery have made it too burdensome to even get to that stage. Many commentators, and almost every lawyer I speak to about the subject, have noted the epilogue in the Sellers summary judgment opinion, concerning the relationship between the vanishing trial, the costs of litigation and whether summary judgment filings are appropriate in many cases. I personally read the epilogue as part of a long running, and thoughtful, critique I have heard and read over the years by the particular judge as to the costs of discovery and the decline of trials as the preferred form of adjudication.

There is clearly a linkage between the scope and expense of discovery, on the one hand, and the statistically established dying of the jury trial. Some of this scope and cost are structural and arise from the expense of some of its tools, including electronic discovery. Another part of it, though, clearly stems from the fear of many lawyers that they will miss something that might have been useful at trial if they are judicious in their use of discovery. Concerned about being criticized after the fact if this happens, many lawyers engage, inevitably, in wide ranging, “turn over every rock” discovery, even when any lawyer who has ever tried a case – and any client who has ever paid one to do so – knows that only some fraction of the information and documents uncovered during discovery will ever be offered at trial (or even if not proffered into evidence, made use of for any reason). I am not unsympathetic to this concern on the part of many lawyers and it is not illegitimate. I once won a two week trial that I might have lost if plaintiff’s counsel had pursued a particular line of inquiry with a certain witness, but he never did because he hadn’t uncovered it during discovery.

There are antidotes to this problem and ways to vaccinate against it but that discussion would make for too long an article for a mere blog post, although I have written on some aspects of this problem before on this blog. On a similar topic but in greater depth, I also once wrote an article, after having successfully tried a patent infringement case on behalf of a start up with a small budget and prevailed over a much larger and better capitalized foe, on the exact subject of how to try a patent case without bankrupting the client, which you can find here.

But beyond those practicalities, one of the biggest issues with regard to the costs of litigation and its impact on the statistical dearth of jury trials is the billable hour and the inability of many lawyers – and sometimes clients as well – to see past it. Personally, I would never recommend a client take a case to trial unless I believed in it enough that I would be willing to also have skin in the game myself. Under a billable hour model, though, the lawyer trying the case never truly does. Alternative fee arrangements of some form or another, however, change this dynamic and are the best way to align the client and the lawyer’s interests in going to trial as well as the cost burdens of doing so. More than that, if properly structured to cover the entire litigation process, they can alleviate the distorting effect for clients and the litigation process of the vast expense and burden of discovery.

I could talk about this subject in depth and for a long time. For now though, I just wanted to note that two different prominent big firm lawyers recently referenced the role of alternative fee arrangements in making litigation both more reasonable for clients and often times, if they win, more profitable for lawyers than does a billable hour model. Tony Froio of Robins Kaplan (with whom I had dinner years ago and who offered even then, sage advice that I still quote) referenced in a recent interview in Above the Law that his firm’s commitment to “alternative fee arrangements . . . provide[s] clients with access to trial opportunities that may otherwise be unattainable.” Meanwhile, Bloomberg Law columnist David Lat conducted a long interview with the chair of Latham’s litigation and trial department, in which they discussed the growth of contingency fee litigation as part of Latham’s practice and in the big law world as a whole. Of particular note, Lat expounded on his view that technological developments are likely to increase the importance of alternative fee agreements, explaining that:

The rise of AI will have major implications for law firms—and their revenue models. For starters, I predict the efficiency gains it will eventually create will make billing by the hour increasingly less lucrative, and ultimately less sustainable, for Big Law.

On the litigation side, one possible way to address this problem is by relying more on contingency fees. This ties a law firm’s income on a matter not to the number of hours billed, but to the outcome—which is often something clients prefer.

Creative fee agreements, and a willingness to think through their use in a given case, are the best road to making trials and discovery financially manageable for clients and are really the key to an affordable and effective trial practice for many firms and their clients.