Mediation can help put an end to lawyer overbilling. Most lawyers are ethical, decent people, and are deserving of good pay for tough work.

But some lawyers lack scruples and overbill for their work.

In a $29 million multi-party case, I was really curious with the way the plaintiffs’ lead attorney was behaving. The case had three sides:  the plaintiffs, an oil company, and my client, a real-estate developer. The plaintiffs who had brought the lawsuit were two wealthy siblings who had inherited a lot of downtown real estate in a large city. The oil company had a ton of money to fund the litigation, and the wealthy plaintiffs likewise behaved as though they had a huge litigation war chest.

From the beginning the case was unnecessarily expensive.

There we lots of motions and nonsensical discovery disputes between the other two sides.

There were lots of pointless depositions at like $2000 per deposition per side. Most depositions seemed unnecessary because they wouldn’t help at trial, didn’t lead to more evidence, and couldn’t move the needle of settlement outcomes.

Aggravating the problem, the other sides both had at least two attorneys, and sometimes three, at every deposition and court hearing. Lawyer overbilling was a problem.

The plaintiffs were nice folks. But they did not seem to know what their attorney was up to.

So I had a frank discussion about all this with the plaintiff’s lead attorney—I could not ethically speak to the plaintiffs themselves. “We ought to settle the matter,” I said to the attorney, “we don’t need more depositions and discovery, we have a pretty good idea now of the range of outcomes at trial. So let’s talk.”

And this is what the attorney told me:

Well I wasn’t surprised that billing more money was his motivation because that was how he was acting. Double billing. Unnecessary work. Wealthy clients who could pay.

But I was surprised that he actually said that.

At first I thought he must be joking. But as time passed, the case dragged on. And on. The fees increased.

Clearly the plaintiffs’ attorney’s motivation was to just bill the snot out of the case. We had a lot more depositions and discovery before the case finally resolved on the courthouse steps just before trial, and the case settled at a value that could have achieved many months and hundreds of thousands of dollars in legal fees earlier.

Mediation Can Help Save A Lot of Money and Limit Overbilling

Fortunately the Federal Rules of Civil Procedure Rule 26 (b) has reined in scorched-earth discovery, requiring proportionality. But the point remains: clients need to be vigilant because not all attorneys behave as though the client’s interest is of primary importance. And not all judges will care or do anything about it.

There are no easy solutions. But mediation can help.

I still see litigation work and related fees that appear way out of proportion with the needs of the case, especially in divorce cases.

Divorce is highly charged emotionally, and sometimes fees get out of hand in contested divorce proceedings. In one matter that comes to mind, the spouses might have been high-conflict personalities—at least that’s they way they behaved. “Yeah, you’re gonna file a motion? Well I’ll file a motion to counter your motion!” This was the classic high conflict divorce, with both sides seemingly wanting to beat up the other side using their their attorneys as proxies.

Before you know it, they had run up a tab between them of about $750,000 in attorney’s fees. Wow! One of the lawyers charged $650 per hour, and that lead attorney always had another attorney with him—also billing—maybe just carrying thee lead attorney’s briefcase. It seemed like unethical attorney billing to my eye. Although the spouses had a huge lawyer overcharging problem, they were blind to it. The spouses had a lot of of equity in their home, and a lot of other assets—at the start, at least.

I got the impression that the lawyer’s mantra probably was something like this:

“I’m gonna make your equity my equity.“

That’s how the lawyer behaved, anyway. If the warring spouses had mediated back at the beginning, they could have saved nearly all that money. Both sides could have split that $750,000 saved—$350,000 in each of their pockets—if only they had collaborated with each other a bit or mediated.

Most attorneys have more scruples. But not all of them do, unfortunately. And gauging whether what they are billing is right or wrong is a real challenge, especially for those unfamiliar with litigation.

But the point is that mediation can help save a lot of money and reign in unscrupulous attorney fee billing practices.

A mediator can speak with all sides directly. Clients and attorneys concerned about lawyer overbilling or an attorney’s perceived unethical billing practices can raise the issue with the mediator as part of settlement discussions. And the parties can reach agreement quickly and shut the case down for good.

Locations Served

Doug Simpson is one of few environmental mediators in Tacoma—and one of few environmental mediators in Seattle, Bellevue, and Olympia too. With special arrangements, he is available as an environmental mediator in San Diego and Los Angeles also. Mediations can take place at any side’s attorney’s office subject to the parties’ agreement, at a local Regus office (see below) or other spaces with appropriate conference rooms for the expected size of the mediation. Doug has been handling environmental property cases for more than 30 years. Doug also is one of a few divorce mediators in Tacoma and Puyallup. He also is a Seattle and Bellevue divorce mediator, and practices collaborative law (civil) and collaborative divorce. As indicated on the practice areas page, he mediates business disputes, civil litigation, insurance claims and other matters also.

• Tacoma: 1201 Pacific Ave, Tacoma, WA 98402
• Seattle: Columbia Tower, 701 Fifth Avenue, Seattle, WA 98104
• Olympia: 400 Union Ave SE Suite 200, Olympia, WA 98501
• Bellevue: Skyline Tower, 10900 NE 4th St, Bellevue, WA 98004
• San Diego: 350 10th Avenue, Suite 1000, San Diego, California, 92101