The Expensive Shortcut Has a Cousin: The Expensive Detour

A few months ago, opposing counsel e-filed discovery requests in one of my New York cases.

Why? I still don't know.

Discovery requests are exchanged between the lawyers. The judge doesn't need them. Yet someone prepared them for filing, someone uploaded them, and everyone received another docket notification. It was a tiny thing. But it made me think about how easily legal work creates more legal work.

I saw a much larger version recently in a multimillion-dollar business sale. The buyer was represented by a 200-plus-lawyer New York City firm. It was a significant transaction and deserved careful attention. It got plenty.

There were endless redlines. Long stretches waiting for responses. Issues that seemed resolved resurfaced. Points of relatively little consequence received considerable attention. Was all of it unnecessary? Of course not. Did all of it move the transaction toward a better result? I don't think so.

There are smaller examples everywhere. The twelve-page letter when a phone call might resolve the issue. Negotiating the eighth-most-important provision of a contract as vigorously as the first. The problem is that none of those things is inherently wrong.

Sometimes you need the twelve-page letter. Sometimes the obscure contract provision turns out to be enormously important.

Which is why “do less” isn't the answer either.

Perhaps the better question is one lawyers should ask ourselves more often: What are we trying to accomplish?

It's surprisingly easy for that question to disappear beneath the mechanics of practicing law.

There are expensive shortcuts. But there are expensive detours too.

And being thorough isn't the same thing as taking the longest possible route.