Litigation is often seen as expensive and uncertain. However, some new approaches are making it possible for managers and clients to take a more systematic approach to planning and carrying out litigation.
Project management has long been an important element in construction and technology projects. People are starting to apply project management methodologies to litigation. This includes setting out in some detail the tasks and sub-tasks that may be involved in the litigation, understanding the relationships between different tasks, i.e. what has to happen first and before other things can happen, and it can also involve determining who is best suited to do these activities. This approach allows clients to more rationally determine the cost and the benefits of different activities within the litigation. It also gives clients a greater opportunity to disaggregate tasks within the litigation. For example, where a litigation requires the review of extensive numbers of documents, that review can often be carried out by an outsource document review firm.
Another important approach to the analysis and management of litigation is the application of game theory to litigation. Game theory involves a more systematic analysis of what the moves and likely responses and counter-moves in litigation can be. One simple form of game theory is to look at the different likely outcomes and the cost or reward associated with those outcomes in order to determine an overall value for the litigation or risk involved in the litigation that has been weighted according to the cost or benefit associated with different potential outcomes alongside the likelihood of those potential outcomes. Game theory can also provide some insight into how parties will act in the face of uncertain information and in light of different cost structures they face.