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Do civil practice lawyers ever take cases on a contingency basis if the defendant is willing to countersue and retain the lawyer

Pembroke, MA |

For example, imagine a person is being sued and doesn't have the resources to hire a lawyer. The lawyer thinks the case against the defendant is weak, but sees a strong opportunity in a countersuit against the plaintiff. In situations like these, do lawyers ever make a deal that they will defend the defendant against the claim either free of charge, or fees rolled into the contingency fee of a counterclaim?

Attorney Answers 3


  1. Ever ? Sure.
    Common? No.
    You will have to search hard for a lawyer to take that deal. Best of luck to you.

    NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.


  2. Yes, under very limited circumstances.

    First of all, the counterclaim has to be strong enough to stand on its own. If the claim wouldn't justify a contingency agreement with you as a plaintiff, it is too weak.

    Second, the counterclaim usually has to be significantly larger than the defense--or there needs to be an outstanding and simple defense and a very strong counterclaim. Put simply, the lawyer needs to be assured that he will get paid reasonably considering the time and risk.

    It's easiest to do when the counterclaim is both easily winnable and associated with a fee-shifting statute. A great example is tenant law. If a tenant gets sued for damages to an apartment, they often have counterclaims for security deposit violations, and those counterclaims often justify a contingent agreement for the whole suit.

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  3. Unlikely, but possible. The use of contingent fee arrangments is somewhat limited, but if the case is of the type where used and where there is a reasonable likelihood of success, sure a counterclaim can be done in contingency. The lawyer's analysis is likely no different than if the defendant were to be a plaintiff and file first. If it is straight defense against your claim, the lawyer will be paid hourly by the defendant, perhaps flat fee.

    To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.