Redundancy, Overkill, and Efficiency

By Aaron Bundy

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General

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Last Modified on Jun 10, 2025

The time it takes to get a lawsuit to trial from the date of filing is generally frustrating and the subject of ongoing debate and reform. The litigation phase of a case – that interim period after filing and before trial – can have significant value if it is approached properly. If it is not done well, litigation can be extremely inefficient and expensive.

We have written separately about prosecuting a case. The litigation phase should be all about getting ready for trial in a way that enhances your pretrial settlement opportunities (while not getting ready for trial does neither: it neither gets you ready for trial nor does it set you up for good negotiations).

In lawyer world, there are three common types of burden of proof for a case: 1 preponderance of the evidence (more likely than not) for most civil and family law cases, 2 clear and convincing evidence for rare or disfavored cases such as fraud or common law marriage, and 3 beyond a reasonable doubt for criminal cases. Practically, for you, there is only ever one burden of proof: beyond a reasonable doubt, because if you pull any punches or take anything for granted you will not meet your burden, whatever it is, and you will lose. So you need to use all available tools and processes to strengthen your case to make the strongest case possible.

There are two types of redundancy: intentional and unintentional. Intentional redundancy is strategic and can help you improve your case.

Here’s an example of intentional redundancy. Last weekend I was cleaning out my car. My daughter took a handheld vacuum and vacuumed the back seat, while I used a wet-dry vac and attachments in the front. Then we switched places. Why? She’d already vacuumed the back. There were several good reasons. I saw areas that she missed. My wet-dry vac had different attachments, while her handheld vacuum could get into smaller areas. Then we used Armor All wipes: she started on the driver side and I wiped down the passenger side. Why? We each saw dusty spots and little nooks and crannies from different angles and got it cleaner than it would have been if just one of us had done it one time. Was that 100% necessary? The car is cleaner as a result, and it took about the same amount of time and energy as if only one of us had done all the work.

Application of this principle to litigation can strengthen your case. If the other side produces bank or phone records in discovery, sometimes you may wish to subpoena the records directly from the custodian for comparison, as some people alter records in their possession before producing them. Is that paranoia? It is until it happens to you. When we reach an agreement about a deposition date and time by telephone, we follow it up with a letter to the other side confirming the date, time, location, and other logistics, memorializing the conversation and the details of the upcoming event to ensure that they do not forget. We make a written settlement offer before mediation. If they ignore or do not accept it, we reiterate the offer in mediation. If mediation fails, we will send the offer again. Why? As time has passed, they have heard the offer from multiple voices: from their own inbox, in private meetings with their attorney, and from the mediator. Sometimes people need time to process and weigh the pros and cons of an offer. Is that slightly inefficient? It depends on your perspective. If on the third pass they finally give the offer the attention it deserves and accept it, it could save tens of thousands in attorney fees and even better mitigate some of the many risks associated with trial and even a post-trial appeal.

Intentional redundancy is strategic, while unintentional redundancy is inefficient and the result of poor quality control. An example of unintentional redundancy is when the other side sends us discovery requests for income tax returns when we have already voluntarily disclosed all the returns, signaling that they have not reviewed our disclosures nor did they craft their discovery requests with care.

Intentional redundancy and strategic overkill are inherently inefficient but can lead to greater efficiency overall for your case. For example, a common game lawyers play is to say “I didn’t get that” about routine correspondence. Once a lawyer says that, they go onto a special list in our office, then they will be sent correspondence by email, fax, and mail, to narrow down their ability to make false claims about our processes and ensure that they will be held responsible for whether they respond to the correspondence or not. In the meantime, we use the disclosure and discovery processes and tools to stress-test our theories about your case, gather more evidence, and move your case forward around and over the inertia of the opposition.