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Litigation: The revolving door—combating inefficiencies in major litigation staffing

Avoid common mistakes when staffing a litigation matter

In complex litigation, the lack of oversight in managing defense counsel, and the failure of defense counsel to follow billing guidelines, can result in overly inflated fees and costs from improper billing. Under either scenario, the result is generally excessive fees and costs.

Certain types of excessive billing practices are easy to spot, such as block and vague billing entries by counsel or billing for unrelated costs. Other excessive billing practices may be much harder to decipher and require closer scrutiny of the legal invoices. Improper staffing, with a revolving door of attorneys and paralegals, is one of the most common types of excessive billing practice that we come across in our litigation management work.

Over staffing a case with attorneys or paralegals, when a smaller number of attorneys can easily perform all of the legal work required, can generate excessive billing. As stated by the United States Supreme Court in Hensley v. Eckerhart, 461 US424, 434, “of course duplicative and excessive time not reasonably billed to one’s client, cannot be billed to an adversary through a fee shifting statute.” Following up on Hensley, the Court in Covel v. Payne Webber (N.D. Ill. 1989) 128 FRD 654, stated, “While we have refused to lay down a flat rule of one lawyer per case . . . the tendency of law firms to over‑staff a case should cause the trial court to scrutinize a fee petition carefully for duplicative time . . . Too much double lawyering in a situation where one would have been sufficient . . . needlessly pyramid the time spent in keeping everyone up to speed, in cross‑conferencing and revisions of other lawyer’s work . . . ”

Contract Attorneys and Paralegals

Contributing Author

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David McMahon

David McMahon is the Managing Partner in Barger & Wolen LLP’s San Francisco office. His practice focuses on large complex litigation. He has worked on...

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