Yesterday we discussed the outrageous attorneys fees in the Robertson v. Princeton suit, which amounted to $80 million in pre-trial litigation costs and $40 million in projected trial costs. Based on those fees, it seems each side had a team of 6 lawyers working all day, every day, for all 6.5 years of the litigation, all for a case more comparable in size to a complicated personal injury / wrongful death case than a major commercial or business case.
It’s time to ask some basic business / commercial litigation questions.
Did the lawyers engage in ‘total war’ litigation? Did the clients understand that decision?
Unfortunately, Mercer County (in New Jersey, where the litigation took place) doesn’t keep its hearing and docket lists up permanently or publish its orders. Did the Robertsons decide it would be tactically advantageous to pummel Princeton with discovery requests? Did Princeton decide it would be tactically advantageous to stonewall every discovery request? Did everything require a motion or two?
When there’s a paying client (as opposed to an insurance carrier or a contingent fee agreement), most litigators will sit down with their client early in the case and ask: how do you want me to handle it? If a client asks for ‘the works,’ an experienced, tough litigator would have no trouble churning through $500,000 in fees on a simple bread-and-butter business contract dispute. Add in any variables — like sophisticated accounting, extensive documentation or novel issues — and you’ll start the process at $1 million, breaching $5 million well before trial.
But that’s still not $40 million apiece.
Did the clients understand the workflow at the law firms?
Even if we generously assume that some of the $80 million comes from work in the years preceding the actual lawsuit, we still have whole teams of lawyers working full time.
Pareto’s 80/20 rule applies just as much to litigation as it does to any other business. Did either of these clients recognize what, exactly, the firms were doing?
- Did the lawyers assert privilege as broadly as possible and then force litigation on every issue?
- Did the lawyers apply any thought to whom they should depose, or did they depose everyone who arguably was aware of discoverable facts?
- Was every brief right at the page limit, chock full of barely-relevant cases that took hours to track down even on issues where the judge had considerable discretion?
That is to say, did either party hire a liitigation consultant, ask their in-house counsel, or use their common sense to assess if the work was really needed or if the litigation attorneys were churning through hours as fast as they could?
Did the lawyers and clients consider alternative dispute resolution?
The core of Robertson involved dry and technical issues of legal interpretation, accounting and oversight. There was no “pain and suffering” component. Witness credibility was not the critical factor. All of the main reasons a party would either want non-lawyers or a jury of twelve reviewing a case were absent.
Why, then, did the parties subject the Mercer County Superior Court to this punishment? Did the clients really understand the ramifications of staying in state court and the delays and additional attorneys’ fees that usually come with such a decision? Did the parties even consider arbitration?
In an antitrust case much larger than Robertson (a different antitrust case from the one mentioned above), Visa, Mastercard and AmEx resolved their multi-billion-dollar largely-legal dispute in arbitration. Why not here? Discovery probably would have gone much more smoothly, with Princeton more easily obtaining confidentiality and the Robertsons more easily obtaining documents.
Did the lawyers and clients consider alternative fee arrangements?
The Robertsons, as plaintiffs, paid an effective fee of 44% of their total recovery of $90 million.
A 40% gross-recovery contingent fee agreement is not uncommon in complex, expensive and/or risky business disputes; here, however, the client received none of the benefits of a contingent fee. As best I can tell, the lawyers bore no risk and paid no expenses out of pocket — the clients did.
Did the Robertsons consider a contingent fee agreement? 40% would have been cheaper and during the six years of litigation their foundation could have held onto the money, investing it tax-free. They could also have done a blended agreement, with the Robertsons covering costs and expenses and the attorneys claiming, say, one-third of the recovery.
Princeton, in turn, paid $40 million over six years to defend a claim they later settled for $90 million. Making matters worse, the $40 million likely came in the unpredictable form that managers hate, with huge swings depending on the litigation, invoiced in a manner completely opaque to non-lawyers and lawyers not familiar with the case.
Did Princeton consider, say, a flat fee? The controversy had been brewing for almost forty years, with Princeton well aware of the major factual issues. The major legal issues are all apparent on the face of the complaint, which is only 68 pages long. Obviously, there will be an extensive accounting, lots of discovery and document review, and a couple big motions for summary judgment with regard to characterizations of various payments and the duties of your clients.
It’s a big case but it’s not unbounded in scope. It’s not a class action or antitrust case sprawling over dozens of parties and whole industries; it’s a dispute between a university and a foundation over a specific sum of money and a specific grant.
You could do it with the “feeding frenzy” team: two lead attorneys and a handful of associates and paralegals.
They could have blended that fee as well: Princeton covers external costs and expenses, like the accounting firm and deposition costs, with a flat fee payable every six months for attorneys’ fees. Going off of our big firm average hourly rate of $348, estimating the case will take up half of their 12,000 billable hours per year available time, puts us at $1 million every six months. Princeton would have ended the case for less than $18 million, including all costs and expenses.
These are all just ideas, any one of which would have likely saved millions.
Was anyone really looking out for the client? Are non-profits the new profit centers for lawyers?
Maybe in the end we have another example of the dangers of using “OPM.” No individual or for-profit enterprise paid a dime for this excess and waste; it all came out of “charity.”
The Robertsons paid for the suit via the Banbury Fund, which they control. As best I can tell, they exhausted most of the Fund’s assets on this suit, though they are being reimbursed under the settlement.
Princeton paid for it out of their multi-billion-dollar endowment; as part of the settlement, the funds expended will be deducted from the Robertson Foundation as it is dissolved into Princeton’s general endowment.
So, there you have it. $80 million in litigation fees to move $50 million from one charity to another. Princeton President Shirley M. Tilghman called the whole case “a tragedy” because the legal fees could have been spent on education. I’d agree, except that I can’t help but wonder what steps Princeton could have taken to reign in their costs; you can’t blame the other side for everything.