“Cost of Discovery a Driving Force in Settling Cases, Study Shows”

“There’s no incentive to pursue low-merits cases because opponents won’t settle them.” Wrong:

On one thing plaintiffs lawyers and defense counsel can agree: The cost of litigation, particularly discovery, has become the driving force in settling cases, not the merits, according to results of a survey of groups representing both sides. The joint survey, from the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System, found that 83 percent of the nearly 1,500 lawyers responding found costs, not the merits of a case, the deciding factor in settling.

The unfairness cuts both ways: some low-merit cases become worth filing because of their discovery imposition value, while some high-merit cases are made uneconomic to file because of the discovery burden they bring (Pamela A. MacLean, National Law Journal, Sept. 10).


  • According to the study, the type of discovery that is most problematic is “e-discovery” (e-mail and other electronic records). Knowing e-discovery is inevitable, I argue an enterprise can use technology proactively to make its e-records more benign. It can broadcast intent to be lawful and a request that adversaries come forward as early as possible. What do you think? –Ben

  • I think you are assuming good faith on the aprt of those who sue, and that such assumption completely and utterly ruins idea, as lawyers are involved.