Why Litigation Budgets are Like the Coastline of Norway

Preparing a litigation budget that is comprehensive but not over-stated is a crucial task for a litigator. Yet it is easier for even a seasoned litigator’s budget to prove inadequate than it is to be ample (much less affording a cushion). We can better understand this phenomenon by thinking of the coastline of Norway from the standpoint of a survey team planning to transit the entire coastline by land

 At first impression, prior to commencing the voyage, the length (and thus expense) of the undertaking seems modest. (See the map of Scandinavia, below).  Norway is ranked merely 67th in the world by land area (roughly the size of New Mexico). However, once the voyage has commenced the surveyors see that the coastline isn’t how it appeared from a distance. As it turns out, Norway has the second longest coastline in the world, measured at approximately 64,000 miles, because of its highly irregular coastline with scores of fjords and peninsulas. What’s more, once on the ground the surveyor encounters rivers suddenly in flood and ice-bound mountains that must be crossed or gone round.

 Litigation is often “irregular” as well.  A lawyer of course budgets for common dispositive motions, discovery, and the like. But what about those "flooded rivers" – i.e., joinder motions, motions to stay, Rule 11 motions, responses to “sur-sur replies,” and innumerable others? More often than not, litigation will involve actions and counter-measures which, while not unforeseeable, aren’t all accounted for in a typical budgeting template, leading to overruns. Therefore, at the outset of a case litigators may need to augment the template in light of such factors as the aggressiveness and diligence of opposing counsel, complexity of the factual matrix, and a sober assessment of the prospects of summary disposition. Else, provisions may run short before the voyage is near complete.