Litigation is expensive, and large litigation is expensive in a way that surprises even the people paying the bill. A commercial dispute that looks manageable when it is filed can run for years and end with total costs that rival the amount in controversy. The reasons are structural rather than mysterious: a lawsuit is a process that generates work-documents to collect, witnesses to depose, experts to retain, motions to brief-and each of those tasks has to be paid for before anyone knows how the case will end.
This article explains what drives the cost of major legal cases, how those costs are shared, and why a reliable final number is so hard to produce. The focus is on how the system works, drawing on court data, empirical research, and professional fee surveys.
What “the cost of litigation” actually includes
Litigation spending is usually grouped into three buckets. Professional fees pay for lawyers, paralegals, and other timekeepers, generally recorded in small increments-often six minutes-and billed at hourly rates that rise with seniority and market. Hard costs, or disbursements, are payments to third parties: court reporters and transcripts, filing and service fees, translation, travel, and expert witnesses. Litigation support covers the technology and labor behind discovery, including collecting, processing, hosting, and reviewing documents.
In document-heavy matters, the third bucket can grow large enough to rival or exceed the first. One reason is that electronic information now exists in volumes that dwarf the paper files of earlier decades: email, chat messages, shared drives, and backups all become potential evidence. The cost is not mainly storage-storage itself is cheap-but the human judgment required to decide what is relevant and what is protected by privilege.
The amount at stake is the strongest single predictor
If one variable best explains why one case costs far more than another, it is the amount in controversy. Higher stakes justify larger legal teams, broader discovery, more experts, and longer preparation. The American Intellectual Property Law Association (AIPLA) publishes median costs for patent litigation by amount at risk, and the pattern is consistent across its survey series. The figures below are medians from the 2023 edition, covering 2022 data, and represent cost per patent.
| Amount at risk | Through discovery and claim construction | Through trial and appeal |
|---|---|---|
| Under $1 million | $300,000 | $600,000 |
| $1 million–$10 million | $600,000 | $1,000,000 |
| $10 million–$25 million | $1,500,000 | $3,000,000 |
| Over $25 million | $1,500,000 | $3,625,000 |
Source: AIPLA Report of the Economic Survey 2023 (2022 data), median total cost per patent, all varieties. Figures are medians and will vary by technology, venue, and firm; confirm against the current edition before relying on a specific number for budgeting.
Notice that the jump from the smallest to the largest category is not gradual. Moving from a case worth under $1 million to one worth more than $25 million multiplies the median cost several times over through trial. That is partly a matter of resources: a party with tens of millions at risk can rationally spend more to protect it. It is also a matter of complexity-larger cases tend to involve more parties, more documents, more disputed issues, and more expert testimony.
The same relationship shows up outside intellectual property. Empirical work published in the Duke Law Journal, drawing on Federal Judicial Center research, found that the monetary stakes in a case were the single best predictor of its total cost, and that a 1 percent increase in stakes was associated with roughly a 0.25 percent increase in cost. That finding cuts against the idea that any one phase, or any one participant, single-handedly explains why cases are expensive.
Why discovery is where large cases get expensive
Discovery is the pretrial exchange of information, and it is routinely the most expensive phase of a large case. Both sides must identify relevant material, preserve it, review it, and produce what the rules require-while withholding what is privileged. Because that work scales with the volume of data, a matter involving millions of documents can generate costs that grow faster than the rest of the case.
A widely cited study from the RAND Institute for Civil Justice examined 57 large-volume electronic discovery productions at eight major companies. In those cases, the authors found that review-people reading documents to assess relevance and privilege-typically consumed about 73 percent of e-discovery production costs, while processing consumed about 19 percent and collection about 8 percent.
| E-discovery task | Share of production cost |
|---|---|
| Review (relevance and privilege) | About 73% |
| Processing | About 19% |
| Collection | About 8% |
Source: RAND Institute for Civil Justice, “Where the Money Goes” (2012), 57 large-volume e-discovery productions. The authors caution that the results describe very large companies and cannot be generalized to all litigants.
Two qualifications keep this in perspective. First, review is labor-intensive because it requires human judgment about privilege and relevance, and mistakes can be costly; the same study noted limited room to speed up human review without sacrificing accuracy. Second, discovery is not always the dominant cost. Research summarized in the Duke Law Journal found that, in ordinary federal cases, discovery typically accounts for somewhere between 20 and 50 percent of total litigation costs, with wide variation-not the 70 percent or more that surveys of attorneys sometimes report. In the most document-heavy matters, the higher estimates can hold; in routine cases, they generally do not.
Federal rules give courts tools to keep discovery in proportion to what is at stake. Rule 26(b)(1) limits discovery to material that is relevant and “proportional to the needs of the case,” weighing the amount in controversy, the parties’ resources, and whether the burden or expense outweighs the likely benefit. A separate provision, Rule 26(b)(2)(B), allows a party to identify electronically stored information as not reasonably accessible because of undue burden or cost. Cost-shifting-requiring the requesting party to pay for some production-is generally considered only in narrower circumstances, and the framework courts still reference comes from a 2003 decision, Zubulake v. UBS Warburg, which set out factors such as how well tailored the request is and how the production cost compares to the amount in controversy.
There is a genuine debate about how well these limits work. Practitioners who favor broad discovery argue that proportionality rules, if applied too aggressively, can deprive a party of evidence it needs to prove its case-particularly when the relevant information is held almost entirely by the other side. The empirical record supports neither extreme: discovery costs are real and can be severe in large matters, but the evidence does not show that runaway discovery is typical of federal litigation as a whole.
Experts, depositions, and the multipliers that scale a case
Beyond discovery, several line items scale with ambition and complexity. Expert witnesses are a distinct category: they charge premium rates and are often less negotiable than attorney billing. SEAK’s 2024 Survey of Expert Witness Fees, based on responses from more than 1,600 experts, reported median hourly rates of about $450 for file review and case preparation and about $500 for deposition and trial testimony, with a median retainer of $3,000. Those are self-reported figures from a self-selected sample, so they are best read as an indication of structure and order of magnitude rather than an audited benchmark. High-demand specialties can charge considerably more.
Depositions generate their own costs. Each one involves attorney preparation, a court reporter, a transcript, and sometimes video, and each can take hours or days. A case with numerous witnesses on both sides can accumulate tens of thousands of dollars in deposition costs before trial. Expert involvement often multiplies the figure, because a complex matter may need several experts-one on technical questions, another on damages-and each expert must review documents, write a report, and prepare to be deposed.
Finally, the behavior of the other side and the court’s schedule are variables a party cannot fully control. Additional motions, discovery disputes, counterclaims, and delays all add work. Trial preparation tends to expand to fill the time available before trial, and each additional day of trial multiplies attorney time, transcript pages, and expert fees.
Who pays, and how the bill is structured
The fee arrangement determines when and how the money changes hands. Under hourly billing, the client generally pays as the case proceeds, regardless of outcome, and bears the disbursements. Under a contingency arrangement-common in personal injury and some other plaintiff-side matters-the attorney is paid a percentage of any recovery, often in the range of a third, with the exact figure set by the agreement and sometimes rising if the case goes to trial. Even then, the client is usually responsible for advancing or reimbursing hard costs.
The default rule in U.S. litigation is that each side pays its own attorney’s fees, but there are exceptions. Some statutes and contracts shift fees to the prevailing party. Separately, courts may award certain “taxable costs” to the winner, which generally cover items such as clerk and marshal fees, transcript fees, and witness fees-not attorney time or most litigation-support expenses. Insurance may cover defense or indemnity when a claim falls within a policy. And a settlement or judgment may reimburse expenses advanced during the case, depending on the fee agreement and any liens.
Third-party litigation funding has expanded the options available to parties that prefer to spread or transfer the risk of a case. In these arrangements, an outside investor typically provides capital to cover legal fees and expenses in exchange for a share of any recovery if the case succeeds. Market-research estimates of the size of this sector vary with methodology, but several place the global market somewhere in the range of roughly $20 billion to $30 billion as of 2025–2026, with continued growth projected. Because cross-border disputes can involve parties, counsel, and funders in several jurisdictions at once, trade publications that follow international litigation coverage often report on how these arrangements are structured and how different courts approach them.
Why the final number resists prediction
A litigation budget is best understood as a written plan rather than a quote. It maps the expected work-pleadings, motions, discovery, depositions, expert reports, mediation, and possible trial-and prices it by task. Because opposing counsel, the court, and unforeseen events all influence what happens, no budget can be precise. The value of the exercise is alignment: it gives both the client and the legal team a baseline against which actual spending can be compared, and a trigger for revisiting strategy when the case shifts.
Most civil cases do not reach a verdict, which shapes the economics. According to the Administrative Office of the U.S. Courts, only about 0.5 percent of federal civil case terminations in the twelve months ending September 30, 2024, reached trial; the rest were resolved through settlement, dismissal, or other dispositions. That means the pivotal cost decision is often not “trial or no trial” but how much to spend on the pretrial phases that shape the settlement value.
Several practices are commonly used to keep the pretrial phases from expanding without limit. Early case assessment, phased budgets with decision points after major milestones, staffing routine work at appropriate levels, and technology-assisted review are all widely discussed. Each has limits-automated review still needs qualified oversight, and courts expect the process to be defensible. But together they reflect a practical reality: in litigation, cost is a series of decisions made over time rather than a single price set at the outset.
Questions people ask about litigation costs
Why do large legal cases cost so much more than small ones?
Mainly because the amount at stake drives the scale of the work. Larger disputes justify bigger teams, broader discovery, more experts, and longer preparation, and the cost differences compound across phases rather than staying proportional.
Is discovery always the most expensive part of a case?
No. In document-heavy commercial and patent matters, discovery can be the largest expense, and RAND’s research found that review alone consumed most of e-discovery production costs in the cases it studied. In ordinary federal cases, empirical research suggests discovery typically makes up roughly 20 to 50 percent of total litigation costs.
How much does a patent lawsuit cost?
It depends heavily on the amount at risk. AIPLA’s 2023 survey reported median costs per patent ranging from about $600,000 for cases under $1 million at risk to roughly $3.6 million for cases over $25 million at risk, through trial and appeal. These are medians, and individual cases vary widely.
Can the losing party be ordered to pay the winner’s legal fees?
Sometimes, but not by default. The general rule in U.S. litigation is that each side bears its own attorney’s fees. Fee-shifting applies where a statute or contract provides for it. Courts can also tax certain costs against the losing side, but those taxable costs are usually a small fraction of total spending.
How do contingency fees work?
The attorney receives a percentage of any recovery, typically around one-third, and nothing if the case is lost. The exact percentage is set by the agreement and may increase if the case goes to trial. Clients often remain responsible for hard costs such as filing fees and expert charges.
What is third-party litigation funding?
It is an arrangement in which an outside investor provides capital to cover some or all of a case’s legal costs in exchange for a share of any recovery. It is most common in commercial disputes, arbitration, and class actions, and it is regulated differently across jurisdictions.
The bottom line: cost is a set of decisions, not a single rate
Large legal cases are expensive because they are long, document-intensive, and uncertain, and because the work required to prepare and try them is performed by people whose time is billed. The headline hourly rate matters, but it is only one input. The bigger drivers are how much is at stake, how much information has to be reviewed, how many experts are needed, and how far a case travels before it resolves.
For anyone trying to plan around a major dispute, the most useful step is not to predict the final number but to understand its components and the points at which spending can be revisited. A case that looks expensive on paper is often one where cost discipline was never mapped to the phases that actually generate the bill-and where the decision to keep going was never re-examined along the way.
