We are preparing evidence and would like to understand what is the criteria used to determine if an attorney will take a contingency case.
There are generally three things attorneys look at in determining whether to take a case on a contingency basis -- meaning they don't collect fees unless you win the case and get a settlement.
LIABILITY: How difficult will it be to prove that the other person did something wrong and should be ordered to pay you money? If the attorney is going to have a hard time proving a difficult case, that would affect his or her decision on whether to risk spending lots of time, only to go home empty handed at the end.
DAMAGES: If you win the case or it settles, how much money are you likely to get? If you have a case that's only worth a few hundred bucks, no attorney is going to put in the time and effort to take a percentage of that recovery
ABILITY TO PAY: Even if a homeless guy with no money is clearly liable to you for a million dollars, what good does it do to win the case when he can't pay anything? The attorney only gets paid if they can actually collect from the other party.
Making this decision is kind of like gambling. An attorney has to compare the chances of collecting the fees at the end with the time, expenses and effort that will be required.
Please understand that I am a criminal defense attorney can don't take contingent fees cases. This is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like Avvo, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
Both of my colleagues are correct, but there is still an additional consideration. How much time will I have to spend to get both the judgment and the payment. A case with good liability and good damages may still not be financially viable to handle if it will cost too much money and time to prove.
Disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.
I agree with Attorney Marshall's 3, but there are 2 more that the best attorneys use (besides the original three) (many attorneys don't use these, but the best I know do):
4) What is the client's attitude like (are they going to be someone that the attorney wants to potential be partnered up with for a year or two
5) Is it a case where the attorney feels they can do a good/great job in.
Good luck with your situation.
As you can see from these responses, there are many considerations for an attorney considering a contingency fee case. For the attorney, it's strictly a business decision, assessing the factors identified in the previous responses and others. For example, we consider the merits of the case, the likelihood of obtaining a judgment, the potential recovery, and the source of recovery (a defendant with no insurance and unknown ability to pay, an individual with independent means to pay, or a defendant with insurance).
Those factors go to the decision as to whether to take it on a contingency fee at all. Then there is the determination of the percentage of the recovery as a fee (which could range from 25% to 40%), which is risk/reward evaluation. The potential reward is the potential amount of the recovery. The risk is the likelihood of success and the cost of the case to the attorney. Is there an expectation that it will be a long, hard-fought case against a defendant who can pay for a substantial defense? Is the attorney advancing all costs of the litigation, including expert witness fees, which can run into the $100,000's? Or is the client going to advance some or all of the costs?.
Another factor for costs to the attorney is the venue of the case (will it be near the city where the attorney's office is located, such as San Diego for my firm, or will there be travel to another city for court appearances and depositions, which increases out of pocket costs and time).
While I agree with the above answers, there are still many other possibly factors, that can vary with the indivifual attorney. Basically they can be summed up under the heading of "cost-benefit" anaylsis. Does the attorney believe that they will be able to recover enough money, (through lawsuit, arbitration or negotiation), to cover the value of the time and effort they put in. In other words, it's not just how much money, but how likely is the recovery of the money and how much work or trouble will it be. If it is an area of the law that you practice in every day and can do the preliminary steps in your sleep, even the investment of time is probably not that big a deal, versus the same number of hours burning the midnight oil at the law library researching an area of the law that is novel to you. Best example is Personal Injury lawyers. DISCLAIMER: I am not now, nor ever have been a P.I. lawyer. I don't care for that type of work nor for the type of attorney it typically tends to attract. (There are obviously always some exceptions). But the lawyers you see on late night tv saying, "If you've been in an accident, call me," typically reflect poorly on the entire legal profession. In addition, many of these attorneys are running "mills" for lack of a better word. And those are the successful ones. One, or a small number of attornies will hire many assistants, (secretaries or paralegals), and simply grind out the complaints by the hundreds. They make their money on volume, and yes, as their ads say, most of their cases do settle. (For a number of reasons, including the fact that most won't take a contingent fee case unless the liability is clear OR unless the damages are enormous. They may take the case but will insist on being paid a straight fee. Plus, they ensure that they willingly and gladly settle virtually all the cases they accept. Now some attorneys brag about that, and if you listen their ads even refer to "your settlement," not your lawsuit or your award, your "settlement." Because they settle. The cynical among us would say that may be because, they don't know another alternative. If you routine settle all of your cases and then meet with opposition in a particular case that won't play ball, what do you do if you have almost never or NEVER tried a case. You have no leverage. Also, if an attorney can get say 1/3 of $25,000 with almost no work, but would have to work very hard to increase the offer by 5 or $10,000, (of which they would get a third of as well), do you think that most would work very hard for $10,000 versus almost no work for $8,000? That is the fundamental problem with contigency fees. Proponents would have you believe that the attorney and the client have identical interests, since the more money recovered for the client, the more the attorney gets. BUT that overlooks the fact that those additional dollars may take a lot of work, (or even some work), whereas getting a first offer is usually incredibly simple and easy. That being said, please realize that there are exceptions to the above, and there are lawyers who work hard and do the best they can for their clients even with a contigency fee, also realize that not all P.I. lawyers bill that way, there is no requirement for them to do so, but the vast majority do. Lastly, realize there is no perfect system of billing, where contingency, hourly, or flat rate for a specific task. Under each of these there are people who will be happy and those that will be unhappy. There is no perfect system that I am aware of, unfortunately. So, research the attorney, asks lots of questions, ask for recommendations from friends and family and hopefully the method of compensation won't be an issue at all.
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