An alleged unwillingness of in-house counsel to go to trial except for very important cases

A consultant’s article in Of Counsel, Vol. 27, Jan. 2008 at 8, argues that for several reasons law firms are facing a decline in litigation. Large firms are not referring cases, tort reform is reducing litigiousness, and “there seems to be unwillingness on the part of in-house counsel to go to trial on any but the most important matters.” That final observation has a whiff of the querulous, as if it is downright unfair that litigation managers in-house lack courage or intelligence. Real lawyers go to trial!

The consultant offers no qualitative support for his perception, such as fewer trials in the past year or two or any gauge of what trials are for “important matters.” Even taking the charge as true – a decline in the absolute number of major trials – sound and sensible reasons, not a failure of nerves or brains, better explain the alleged dropoff. The cost of a trial can reach seven figures (See my post of March 29, 2005 about patent lawsuits at $2 million for everything through trial; and May 20, 2005 on the acceleration of spending just before trials start.). Worse, the risks of a jury verdict can easily exceed that enormous amount. Law firms like trials because their coffers overflow; law departments dislike them because they are coffins, not coffers.