The days of outside counsel handling an entire case may be coming to their end. Instead, clients are increasingly unbundling legal services, assigning tasks piecemeal across multiple firms and lawyers, in order to find the most cost efficient legal services, according to a forthcoming paper in the Fordham Law Review.
These changes, according to the paper, mark a shift in who controls litigation costs and tasks, moving from the lawyer to the client, and parallel similar developments in the rules of civil procedure.
The paper, "Restraining Lawyers: From 'Cases' to 'Tasks'" by U.C. Hastings associate law professor Morris Ratner, traces these shifts to the rise of the "managerial judging movement" in the 1980s. That movement "converted the trial court judge from a relatively passive arbiter of pretrial disputes presented by the parties," Ratner writes, "to an active architect of the litigation process whose aim is to achieve a proper allocation of scarce procedural resources."
The movement's impact is reflected in the 2015 amendments to the Federal Rules of Civil Procedure, Ratner argues, which require greater cooperation between lawyers and judges in order to reduce litigation costs by, for example, emphasizing proportionality requirements in the discovery process.
A Rise in Unbundling and Budgeting
That shift in the judge-lawyer relationship has been paralleled in the lawyer-client relationship as well. Whereas the traditional lawyer-client relationship envisions the client setting litigation goals and the lawyer pursuing them in the manner she finds best, that's no longer always the case. Today, Ratner notes, "sophisticated consumers of legal services are bridging the means/end divide."
Driven by a desire to control legal spending, legal consumers are pursing unbundled services and more predictable (and controllable) litigation costs. "In litigation," according to the paper, this "takes a variety of forms, including disaggregating and sourcing matters in-house, to a captive center, to non-lawyer third parties, or to one or more law firms."
And it's not just for simple, routine legal tasks either. "While much of the work is routinized," Ratner says, "a growing percentage of it includes such 'higher-level' tasks as analyzing case law and evidence."
This unbundling is also paired with an increased focus on budgets, as client "insist on detailed litigation budgets building off worksheets that disaggregate litigation into constituent tasks."
The end result is to displace the lawyer or law firm as the controlling force around litigation, allowing clients to pursue their goals while also controlling costs.
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