A recent New York Times article reported on allegations that an international law firm had overbilled a client by overstaffing a bankruptcy litigation matter. As disturbing as such allegations are, the main challenge in-house counsel face is not a pernicious “overbilling” culture at law firms that represent them. Most law firm litigators are dedicated professionals who do, in fact, place their clients’ interests first. So why do litigation bills seem to operate in a world that is divorced from the budgeting realities of in-house counsel and their businesses?
Part of the issue is the way outside counsel’s success is measured. Although outside counsel and inside counsel spend more time than they used to on litigation budgets and billing arrangements, outside counsel are fundamentally driven by Vince Lombardi’s credo: “Winning isn’t everything. It’s the only thing!” With an ever-present focus on winning at trial, outside counsel will push to avail themselves of the multitude of discovery devices at their disposal and the broad range of documents and witnesses they can examine so that they will be as prepared as possible for the courtroom battle.