Controlling costs can be much more difficult in defect cases involving insurance-company attorneys, the attorney suggests. The insurers tend to use busy lawyers accustomed to spending whatever is necessary to win without regard to time or cost, he says. "They are more inclined to delay and won't even get around to looking at your case until four months are gone by, then won't evaluate until eight months have gone by," says the attorney. Looming trial dates do finally trigger action, he adds.

The work of limiting legal expenses extends to how an attorney spends his or her billed hours working on a case, including the possibility that expensive document review may be farmed out to a lower-cost subcontractor.

In arbitrations, which are designed to control litigation costs, there can be more cooperation about identifying parties and documents relative to the specific claims.

Rubenstein, for example, has placed clauses in contracts in which any party may demand arbitration before the American Arbitration Association; that process must be completed within 90 days. "That way you don't have protracted litigation," says Rubenstein.

Another good idea is to develop a strategy that compares settlement and litigation costs. Dan Knise, chief executive of insurance broker Ames & Gough, says it's important to have a plan because a firm involved in litigation could get to the discovery phase and spend $300,000 to $400,000 "when you could have settled for $250,000."

Being in a recession doesn't necessarily tamp down the number of lawsuits. The number of claims against design professionals seems to be higher, says Knise, although he says he has no hard data.