More dollars are expended in the litigation of lawsuits than are expended in settlements and judgments. Often, the biggest component of litigation dollars is devoted to discovery. The advent of electronically stored information and associated discovery issues over the past couple of decades has only increased the costs of discovery.
All of this prompts the question, most urgently, from in-house counsel: What can be done to curtail the spiraling costs of discovery? One simple tip that leads to big savings is to start at the end. By that, I mean envision the end of the case, whether that is at closing argument before a jury or oral argument at the summary judgment stage before a judge, and picture what you need to say in order to prevail. With that in place, work backwards, outline the proof required and plan your discovery accordingly.
Starting at the end applies equally well to all phases of litigation. Obviously, it is much easier to arrive at your intended destination if you know where it is.
Indeed, starting at the end is a time honored principle applied throughout industry and the arts. I recently came across an article published in the design thinking and innovation magazine, MISC, that discussed how innovators like Apple, Nike and Virgin Airlines employ the same “start at the end” principle employed by Edgar Allen Poe.
“Poe wrote his last stanza first. This enabled him to determine his structure and progression, and afforded him to graduate levels of importance and wit. It also established the rhythm, meter, length, and general arrangement of his stanzas. Defining an initial set of constraints helps to set the parameters of the experience.”
R. Bolton, EDGAR ALLAN POE ON EXPERIENCE DESIGN
What worked for Poe and the Raven also works for litigation discovery; “defining an initial set of constraints helps to set the parameters of the experience” and, as importantly, leads to a reduction of discovery costs.
Questions? Let me know.