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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at
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November 30, 2005

Litigation is frighteningly expensive

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Posted by Ernest Svenson

The Budget Rent-a-Car opinion by Judge Posner, reversing the decision to award attorneys' fees to a defendant who had to deal with a frivolous appeal, is getting a lot of discussion over at, and deservedly so. Posner apparently thought that the defense attorneys $4,000 fee for a 4 page brief was excessive. Gail Heriot's point is that "that's what litigation costs," suggesting that Judge Posner was wrong. I'm not sure if he's wrong, but I agree with Gail that litigation is 'frighteningly expensive' and many judges aren't willing to do what is necessary to address the problem.

Litigation is expensive because the legal system, pretty much at all levels, is inefficient. Judges are in a unique position to streamline the process and force efficiency into the system, but, as a whole, the judiciary has not really done that. Denying excessive attorney fee requests is not going to do much to create the necessary momentum.

I like Judge Posner. I think he is efficient and his decisions are sensible. But he's an appellate judge, and they don't really have much influence over the inefficiencies in our legal system (remember not many cases go to trial, and of that number only a percentage get appealed). We need to re-examine the kind of people we appoint/elect to our trial courts. Trial judges control cases from the moment they get filed until the moment they settle (which 90% of them do) or get resolved by trial or summary judgment. What kind of trial judges should we be looking for? I favor fidgety, impatient people who don't like to waste time. Like Judge Judy, for example.

You think I'm kidding about the Judge Judy thing, don't you?

Comments (4) + TrackBacks (0) | Category: Practice of Law


1. CL Thomason on December 2, 2005 8:35 PM writes...

Haven't read Budget, but you're spot on about inefficient courts mean expense to litigants. There's no accountability.
How long have attorneys been refusing to answer interrogs, or failing to produce requested & relevant documents - and never being brought to answer for that? Almost every civil trial or pretrial begins with complaints about not getting discovery, or about the need to 'supplement' expert reports or witness disclosures?
The Courts reply that 'discovery should be self-executing' and is not the Court's job.
How many pretrial summary judgment motions are decided versus those that are denied w/out comment or taken under advisement - which plainly means that the Court 'just doesn't feel like it' when it comes to working thru heavy motion papers - 'I'll let the jury decide the case, and if I disagree I'll set aside their verdict.'
Sure, many judges work hard, and are diligent, but quite possibly, there's more than a few that are willing to let things sit.

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2. annon on December 2, 2005 10:12 PM writes...

Agree on inefficient judges. But don't think its much about "the kind of people" we appoint. Its mostly about the systems, rules and procedures. None of these encourage efficiency. Some are affirmatively inconsistent with efficiency. If we want more efficiency, gotta give up some other benefits of the current system -- e.g., entire procedural fairness.

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3. Bill Henderson on December 8, 2005 3:02 PM writes...

I agree litigation is expensive, because it is inefficient. But the solution in a society problem, we attorneys must work to influcence the public, because they are the ones who pay for the inefficiencies, in the form of transactional friction in the economy, and economic uncertainty. We in the profession already know it is a problem.

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4. PeafempageCep on October 4, 2007 8:38 PM writes...

I’ve got an Amazon gift certificate burning holes in my pocket,
and I want to get the most bang for my buck.

Enter the Secret Amazon Web Pages:

This is where you’re going to find the "latest sales, rebates, and limited-time offers" from
Amazon, and you can score some pretty deep discounts if you’re a savvy shopper.

Next, there’s the special Sale link. This is open every Friday, and ONLY on Fridays.

You can find the same good discounts here as you would in hidden Deals, although some
Fridays you can really get lucky and make off like an Amazon bandit - I’ve seen discounts
there as low as 75% off sticker price.

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