Originally Posted by lawyerdad
I agree somewhat, but this is something of an overstatement. You can never predict with absolute certainty, but in many cases you can make a reasonable estimate of what the litigation costs will be up to various benchmarks (resolving the pleadings, discovery, through trial, etc.)
There are also a variety of ways of hedging or sharing the risk (that is, the client and firm sharing) of substantial mis-estimations. That said, because of the inherent unpredictability odoreater alludes to, I think flat fee or similar arrangements Iin litigation settings) likely will work best where there is an ongoing relationship, or for very cookie-cutter work.
On an internet forum, all you get is an overstatement
I've prepared "budgets" for clients before that will look something like this: Preparation of pleadings - $2000; Written Discovery - $5000 (with a stipulation that this does not include expert costs); Depositions - $5000, etc.
However, I've very rarely had a situation where the budget was actually adhered to or didn't have to be significantly revised after the case has been ongoing for a while.
I don't think I would ever contract with a client to actually handle any aspect of litigation for a flat fee (unless the fee was so high that it would be impossible to go above it).
Here's a recent example of why it's very difficult to estimate litigation costs. I had a case where a plaintiff sued my client, and I filed an answer, counterclaim and a third party complaint against an entity related to the plaintiff. From this point, the plaintiff and third-party defendant would have to file an answer and the pleading stage would be done. However, neither party filed an answer. So, I had to file a motion to enter default. Both parties opposed the motion so I had to prepare reply papers. The Court denied my motion and gave them leave to answer. A few months later, I get a notice from the court that my third-party complaint has been dismissed for lack of prosecution - turns out they never actually filed the answer they attached to their motion papers. So, I had to file a motion to restore my complaint. That motion was granted. A few months later, they still haven't filed an answer, so I had to file another motion to enter default, this time also asking for sanctions. The Court denied my motion to enter default and again gave them leave to answer, but did grant my motion for sanctions. The catch was that the court only awarded me about 1/5 of the fees and costs my client incurred just to get these guys to file an answer.
Had we agreed that we would do the pleading stage for a fixed some, we would have lost a lot of money.