In a recent colloquium contribution titled “Restraining Lawyers: From ‘Cases’ to ‘Tasks’” published in Fordham Law Review, my colleague Morris Ratner, one of the most incisive voices on the intersection of the Federal Rules of Civil Procedure and the actual business model of attorney litigation, dissects the traditional “case” as the unit of measure for the lawyer’s craft. The rise of managerial judging and its ultimate inculcation in the Federal Rules (and, one might add, the vanishing trial) have led attorneys and clients to think of the litigation unit in terms of a series of individually priced tasks instead of whole cases.
This shift in focus toward discrete tasks has implications, to be sure, for managerial judges, who may use their Rule 16 powers to control litigation efficiency by staggering discovery, inviting partial motions for summary judgment, dropping parties, and the like. But more interestingly, the conceptual shift has affected lawyers and clients too. Clients may demand cheap outsourcing of menial discovery tasks with which the client’s primary attorney cannot compete. They also may demand task-driven litigation budgets, forcing firms to internalize the cost effect of litigation strategies and focus.
This unbundling of legal services has dislodged the traditional hourly pricing method and spawned a new and pervasive generation of innovative and differentiated pricing models. Those models, in turn, have accentuated the most provocative insight Professor Ratner reveals in his paper: a change in the relationship between lawyer and client. Sophisticated clients, he predicts, will become more engaged in litigation task management and demand a shorter leash for their attorneys. At the same time, litigation-strategy conversations between lawyer and client are likely to focus more heavily on cost-of-service questions than ultimate-outcome questions. And the ethical rules and duties that apply to lawyers will offer clients legal support for their demands. The result can fairly be said to be a revolutionary change in the legal-services marketplace.