Is Litigation Management Cost Control? (Details)
Boutot, Michael R., Risk Management
As I listen to discussions, I grow more and more concerned that what people are calling "litigation management" is not what it really is, or at least, not what it is supposed to be.
The word litigation comes from the Latin word litigare. Lit or lis means "lawsuit," while agere means, "to drive." So, from its roots, litigation means, "to drive a lawsuit." The dictionary defines litigate as: (1) to carry on a legal contest by judicial process; (2) a dispute; or (3) to contest in law. Thus, litigation in its purest form involves undergoing a legal contest or challenge.
The word management has its root in the Italian word maneggiare, which comes from the word mano, meaning "hand" (as in "to handle an object"). Management is defined in the dictionary as follows: (1) the act or art of managing: the conducting or supervising of something (as a business); (2) judicious use of means to accomplish an end; or (3) the collective body of those who manage or direct an enterprise. Manage is further defined as: (1) to handle or direct with a degree of skill; (2) to make and keep compliant; (3) to achieve one's purpose; (4) to treat with care; or (5) to succeed in accomplishing.
Combining these definitions, we can define litigation management as: The act of handling or directing a collective body, with care, in the process of a legal dispute with the intent of ensuring compliance to achieve one's purpose.
When asked to define litigation management, over 90 percent of the respondents in a recent survey emphasized the concept of cost control. But where in our proposed definition is there anything about money?
I am not suggesting that cost-containment or cost control methods are not part of litigation management, but the initial focus of litigation management cannot be saving money. In fact, this is one of the reasons why litigation management does not always succeed. The focus has been on how to save money, when it should be on how to get a group of individuals together who know how to carefully and skillfully handle and direct a legal dispute by ensuring compliance with guidelines.
This may disturb those who have used third party auditing firms at the postinvoice stage to help reduce legal costs under the label of litigation management. …