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The longer the litigation, the higher the fees – but a linear relationship?

An IP litigator at Ogilvy Renault, Patrick Kierans, understands the relationship between the length of litigation and the fees paid: “The cost of litigation is directly proportional to the length of time it takes to complete it.” This quote, from Lexpert (Guide to Leading Cross-Border Litigation Lawyers), Nov. 2009 at 24, leaves the math wonk in me unsettled. I don’t doubt that litigation fees rise over time but I do doubt that the increase is a smooth linear relation. Periods of dormancy, settlement negotiation, court-ordered schedules, and frenetic activity mix together to disrupt a smooth climb (See my post of March 5, 2008: cycle time with 18 references.).

That said, with a group of similar lawsuits it does seem sensible to talk about average monthly burn rates (See my post of May 3, 2009: burn rates of outside counsel with 6 references.). If burn rates make sense, then some formula can capture the upward slope of spending.