It’s easy to be wrong. Some well-respected prognosticators (though not your humble correspondent) thought Brazil would easily beat Germany earlier this week. A certain well-regarded national newspaper once claimed, in 1948, that Dewey defeated Truman. Yet, it’s hard to be more wrong than the Manchester Guardian, which editorialized 100 years ago: “It is not to be supposed that the death of the Archduke Francis Ferdinand will have any immediate or salient effect on the politics of Europe.”
Predicting the future is inherently difficult. Predicting future legal expenses is similarly challenging. Clients are certainly within their rights to have some idea about what things may cost, but attorneys also are on solid ground if they qualify their response based on known and unknown unknowns. A detailed caveat might state:
This estimate is being submitted pursuant to your request in order to help quantify anticipated fees and costs in the above matter. This estimate is not binding, is presented solely for planning purposes, and represents only our best analysis as to what the likely range of costs could be if the matter proceeds in accordance with our assumptions. It is neither a floor nor a ceiling on our go-forward fees and expenses.
As you are certainly aware, litigation is inherently unpredictable and that costs can be affected by a wide range of factors that are beyond our control, including but not limited to the aggressiveness with which the litigation is prosecuted by the other side, constraints imposed by the Court or the conditions of the Court’s docket, and facts subsequently revealed in discovery or otherwise. Accordingly, actual litigation expense may turn out to deviate significantly from the estimate, either favorably or adversely.
We will be happy to periodically update this estimate if requested to do so. However, in the absence of such a request, we undertake no obligation to update or revise this estimate as the case progresses or as actual costs are realized.
You can use a lot of words. But you can also make the same point in terms short and sweet: “Unless expressly stated otherwise, estimates we provide are subject to change and not binding on us.”