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

Asked over 1 year ago - 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. Erik Hammarlund

    Contributor Level 18

    Answered . 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.

    Do you want accurate, personalized, legal advice that you can rely on? You will have to hire an attorney, not ask... more
  2. Thomas J Callahan

    Contributor Level 18

    Answered . 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... more
  3. Rixon Charles Rafter III

    Contributor Level 20

    Answered . 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... more

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