What Will This Cost Me? Navigating the Costs of Litigation

It can be difficult to estimate or predict litigation costs at the pre litigation or early litigation stages. In many professional services, work can be scoped in advance, priced, and delivered against a defined set of assumptions. Litigation does not lend itself easily to that model.

While the uncertainty can be frustrating, it does not mean clients are without meaningful guidance or control. Effective litigation management focuses less on predicting a single all-in number at the outset and more on keeping clients informed as the case evolves. Through clear assumptions, staged cost estimates tied to specific steps, and regular reassessment as facts emerge, clients can make informed, strategic decisions about how to proceed at each stage of the litigation. The goal is not perfect prediction, but transparency, flexibility, and alignment between legal strategy, risk, and cost as the matter unfolds.

Non-Legal Projects Can Be Scoped Because One Party Controls the Inputs

In many non-legal contexts, scoping can work where the person doing the work controls most of the variables. If you are renovating a space, commissioning a report, or engaging a consultant, the scope is based on known requirements and agreed specifications.

Litigation is different. From the outset, a significant portion of the inputs can be controlled by the opposing party. They may determine how cooperative or adversarial they will be, how much information they will disclose, or how many witnesses they will involve. Often times, court intervention is required where an opposing party chooses to be less cooperative, which in turn increases litigation costs. Each of the opposing party’s decisions directly affects the amount and type of work required, often in ways that cannot be anticipated when the matter begins.

You Cannot Scope Work When the Facts Are Still Emerging

Another reason litigation resists early scoping is that the full factual picture is rarely known at the outset. Disputes typically arise because facts are incomplete, contested, or unavailable. Key documents may be in the hands of the opposing party or third parties, and important witness evidence may not emerge until formal questioning occurs during examinations for discovery.

As information is uncovered, the focus of the case may shift. Issues initially thought to be straightforward can become complex, and legal positions may need to be refined, reconsidered or dropped. Additional steps may become necessary in response to evidence that simply could not have been identified earlier.

Your Own Litigation Strategy Often Depends on How the Case Unfolds

Anticipating how much work you’ll be adding to the case is also hard to anticipate during early stages. Decisions about whether to add parties or bring procedural motions often depend on how the opposing party conducts itself and what evidence comes to light.

There is no Guarantee Your Litigation Costs Will be Recoverable

Even if successful, there is no guarantee that a significant portion of your litigation costs will be recoverable from the opposing party. As such, it is important to take into account your ongoing litigation costs when considering your strategy and position throughout the matter.

Conclusion

The difficulty in predicting litigation costs early is a function of the uncertainty in litigation. The scope of the work is shaped by evolving facts, timely strategic decisions, and the conduct of an opposing party, much of which cannot be known in advance.

Notwithstanding this uncertainty, litigation can be necessary to resolve certain types of disputes, recover amounts a party is entitled to, or to obtain certain types of relief. For clients, the most realistic expectation at the pre litigation and early litigation stage is not a fixed or final number, but a clear explanation of assumptions, regular updates as the case develops, and the ability to make informed decisions as the picture becomes clearer as to the cost of continuing to litigate. This includes obtaining estimates for each step in the litigation and an ongoing assessment of the likelihood of success in order for clients to make informed decisions about how to proceed.

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.

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