To benchmark legal departments about litigation, two key metrics are likely to be the number of cases pending and the number of full-time equivalent litigation lawyers. As I explain in this column, both of them are problematic but in the end I would recommend the FTE figure, with an adjustment.
Litigation cases pending sounds so innocuous. If you asked a hundred law departments to give you their figure as of the last day of the year, you would think you could confidently rely on the numbers. Not so. One humongous case, such as a class-action, costs more and consumes more resources than hundreds of nuisance cases. Moreover, do they count every slip and fall case as a separate matter? What about cases that arise and are completed within the calendar year and are no longer pending on the last day of the year? Do you count workers compensation claims as cases; or more fundamentally, is the definition of case when a complaint is filed in federal or state court? And then there is the variability of dormant cases that have been virtually forgotten. Then too, some companies aggressively resolve disputes while others contest a higher portion of them.