When assigning tasks to various levels of attorneys, there are two factors to consider. If you’re strictly talking about budgeting, it’s actually easier to use an average billing rate for the firm, only because it makes the budgeting simpler. Firms can generally provide that or give you some pretty good guidance. Rather than going through each task and figuring out the hours and then figuring out which attorney performed each task, you can just take the hours times an average rate. That makes life a lot simpler and it’s a perfectly valid way of preparing a budget.
But in terms of overall case management and cost reduction, the client should be asking, are the right level of attorneys doing the right tasks?
If junior people are doing senior-level work, in some cases it might be because a junior person is really good and it’s a great opportunity for him or her. I would advise encouraging that. But in a lot of cases, it may be that many of the senior people are not paying enough attention to those tasks. On the flip side, if senior people are doing junior work, it might be because a junior person is out sick or on a deposition day, but it also might be that you have a partner who’s not really busy with more substantive stuff and may be running up hours and costs and hours unnecessarily-not necessarily intentionally-but unnecessarily.
In our book, Bensen & Myers On Litigation Management, we have a chart of about 35 or 40 high level tasks-everything from putting together documents for a witness kit, for case management, and for the lead attorney at trial. At each level, we identify the level of attorney that would be preferable and then a second choice in order to give some flexibility. Depending on the litigation you may do things a little differently, but this is a good guideline. For instance, if it’s an important deposition and the CEO of the company is being deposed, you’d certainly prefer a partner, but a senior associate could be a second choice. On the other end of the spectrum, if it’s a witness who came for a deposition, you’d almost certainly want a junior associate, but in a pinch you might go to a mid-level associate. From the cost management side, it can be very valuable.
Eric E. Bensen is co-author of Bensen & Myers on Litigation Management along with Rebecca Myers. He also co-authored two leading intellectual property treatises and advises clients on complex intellectual property matters. He has taught patent, copyright and intellectual property licensing classes as Visiting Assistant Professor of Law at Hofstra University School of Law and was in practice for more than 12 years, leading attorney teams in successful litigations of highly complex intellectual property matters in federal and state courts throughout the country.