Number of lawsuits pending is not as useful a benchmark as number of major lawsuits pending

Some surveys ask law departments to say how many lawsuits the departments had pending at the end of the year. That number, however, is fraught with problems. Principally, all lawsuits are not created equal. One class action can swallow more time and money than hundreds of slips and falls.

Even the case counts can be slippery. A company can overpay to settle cases or drag its feet or refuse to settle. In-house counsel may be lax in closing cases on the matter management system that tracks cases, especially if the lawyers look better because it shows they are handling lots of cases.

It’s not even clear how to define a case. Government investigations; workers comp; asbestos filings in the thousands; multi-district; mediations and arbitrations? Many cases fade into quiescence for long periods of time, so do you count active cases – whatever that means? Should law departments count lawsuits filed outside the US? When metrics of such slippery provenance are reported, one has to wonder at the usefulness of the data.

I favor asking for the number of lawsuits in state or federal court for which more than $100,000 in fees was paid during the year. Everyone knows those big cases, they bubble actively, and they matter more than swarms of borderline cases.

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