Qwest Communications’ General Counsel, an independent thinker for sure, will have none of this alternative fee arrangement stuff. He pours scorn on them in Corp. Counsel, Dec. 2010 at 68, particularly for the complex cases that make up the bulk of Qwest’s legal spend (See my post of March 16, 2010: Baer’s four objections to AFAs and my counters.).
Although I part company with Baer on his objections to AFAs, I like what he suggests about litigation cost drivers. Baer writes memorably that “in litigation, everything can be broken down into the Killer B’s: bits, bipeds, briefs, and bastards.” By that clever mnemonic he means that the drivers of cost and complexity in large cases turn on (1) the amount of megabytes of e-discovery (bytes), (2) the number of witnesses (bipeds), (3) the number of pleadings (briefs), and (4) the aggressiveness of the other side (bastards). Note also that the first three can be quantified readily and that the fourth, obnoxiousness, can be put on a scale. That done, statistical analysis will someday test the relative influence of Mr. B’s swarm.