764 COSTS SPECIAL ADVERTORIAL www.newlawjournal.co.

uk | 28 May 2010 | New Law Journal

EsƟmaƟng costs: art or science?

Andy Ellis explains the logic and success behind ““Feesability””
Over the summer of 2009 we consulted with a number of It is apparent that the current guidance given to lawyers
lawyers on the topic of using technology more eīecƟvely about esƟmates is inadequate and the current Precedent H
within costs assessment. Our purpose was to explore ways in format for esƟmates provided to the court is not at all useful.
which we might produce bills of costs in a less cumbersome In our experience lawyers do not plan cases or esƟmate tasks
way by accessing directly the data that was held in solicitors’’ by reference to how many leƩers they might write or how
Ɵme records and then presenƟng that informaƟon in a form much Ɵme they might allot to generic ““dustbin”” categories
that pracƟƟoners and their clients would nd clear——all with like documents.
far less clerical intervenƟon than current pracƟce tends to
follow. We now do just that. The opƟmal approach
EsƟmaƟng for liƟgaƟon is not easy. The awkward analogy I
Burning issue someƟmes use is that it is hard enough to esƟmate the cost
What emerged from these informal focus groups was that of building a house, harder sƟll if someone has commissioned
civil liƟgators needed us to address a far more burning issue a demoliƟon contractor to work in compeƟƟon.
–– that of costs esƟmates. Put simply, the solicitors we talked But despite all the caveats and imponderables it is clear
to felt under increasing pressure both from their clients and that lawyers recognise that they must overcome their in-
the courts to provide reliable built reluctance to parƟcularising
estimates –– and the discomfort ““The solicitors we talked to felt esƟmates and grasp the neƩle.
surrounding that whole process The opƟmal approach, daunƟng
was tangible.
under increasing pressure both though it might rst appear, is to
Had it not been for a follow-up from their clients and the courts break the litigation aspects and
meeting with Olswang litigation to provide reliable esƟmates”” tasks down into progressively
partner Dan Tench, our efforts smaller components until those
to help alleviate this parƟcular headache might have come to activities are capable of being estimated with a greater
nought. But Dan had worked on the esƟmaƟng issue before, ten degree of reliability.
years earlier in the wake of the Woolf reforms. Not only that but The methodology built into Feesability involves breaking the
he had applied his programming skills to the problem by wriƟng larger aspects of the case into tasks, to parƟcularise those tasks
an esƟmaƟng and costs planning applicaƟon called Feesability. and then break them down further into discrete acƟviƟes.
By taking a more granular approach, the easier it is to
Rening Feesability esƟmate. It would be fanciful to claim that such esƟmates will
I should declare an interest. Over the past few months we prove unfailingly accurate but we are condent they will end
have been working with Dan and a team of developers to up much closer to reality than any of the luckiest produced by
redevelop Feesability commercially and enhance it as a web- more generalised methods or mere insƟnct. Laborious though
based costs management applicaƟon. the process is, our experience is that it is easier to answer a
What fascinated us as costs specialists was the clinical long list of direct quesƟons than a short list of open ones.
logic behind Feesability. The process of compiling a liƟgaƟon Over Ɵme, of course, the best informant to reliable costs
estimate had been laid out as a walk-through. The user esƟmaƟng will be the comparison of budgeted against actual
was prompted to assign a team, build assumpƟons, aƩach costs, which can only occur reliably if lawyers start to record
Ɵme and other costs to standard tasks, both sequenƟal, eg their Ɵme against the same criteria employed in compiling
pleadings, and themaƟc, eg negoƟaƟons, and then let the the estimate. This presents a challenge both in changing
applicaƟon calculate costs. behaviour by the person recording Ɵme (““working on case””
Of course, the use of the word ““standard”” in relation really won’’t rub) and in developing more sophisƟcated tools
to liƟgaƟon esƟmates is problemaƟc. I have covered the to capture Ɵme.
standards issue in some depth elsewhere (see ““Taking My guess (for which I cannot provide a binding esƟmate) is
Solicitors to Task”” at http://costs2.posterous.com/taking- that soŌware will in Ɵme be able to ag up how near to budget
solicitors-to-task) and work is planned in the wake of the the lawyer is at the point when Ɵme is recorded to the case. ■
Jackson Review to foster a measure of agreement over
standard descripƟons for liƟgaƟon tasks. Andy Ellis, Ellis Grant. Website: www.ellisgrant.co.uk