After choosing an attorney to represent you in a lawsuit, you will need to negotiate a fee agreement.
It’s a sad truth that the burden of financing litigation creates a barrier to entry for many individuals and small businesses. Parties file their claims, propound written questions called “interrogatories” that must be answered by opposing parties in writing, request production of documents, take depositions, move for early disposition of some or all the claims, try the case before judge or jury, and then appeal - and that’s just a snapshot of what might happen in your case. Beware - the expense of litigation can be used as a weapon against you.
Criminal defendants are appointed counsel if they can’t afford one, but parties in a civil lawsuit usually pay their own way. Your rights may be fully protected in the statutes, case law and court rules, but these protections aren’t handed over to you free of charge. Your attorney must fight for them at each stage of the litigation. Victory goes to the party whose counsel works harder, is better prepared and keeps firing away. The legal system favors those with the financial resources to pay for aggressive litigation.
So, confronting the cost of litigation in the beginning (and managing it during the lawsuit) is essential to a winning strategy going forward. Before drafting a fee agreement, we work with clients to project the anticipated cost of the litigation based on their stated goals. Admittedly, estimating costs is an imperfect science because of many unknown variables, not to mention developments beyond one’s control during the lawsuit, but the exercise helps us understand how to litigate the case most effectively for the client.
With costs projected, clients can then consider various fee arrangements such as hourly, flat rate, standard contingency, hybrid contingency, and reduced hourly or flat rate/success fee. We will take from these and perhaps other templates to fashion a fair and practical fee agreement. Completing this process is the first step in building a successful attorney/client relationship.