Litigation “Venture Capital”: Contingency Fees in Probate Litigation

The growing income inequality between the very wealthiest Americans and the middle and working classes have made legal services more and more of a province of those who can afford attorneys and not those who need them. Fortunately, contingency fee arrangements, in which the attorney is compensated only if there is money collected for the client, can help make good legal representation more accessible.

There’s just one catch, however: Experienced and competent attorneys will generally only accept cases on a contingency fee if they are satisfied that (a) they are likely to secure a favorable result for the client; (b) the amount of the recovery is likely to be significant; and (c) the amount awarded to the client can actually be collected from the defendant.

Because attorneys have a fixed “bandwidth”—that is, so many hours in a week in which they are able to devote themselves to client matters—and because taking on certain cases means not being able to handle others—attorneys who are asked to represent clients on a contingency fee basis typically conduct “due diligence” of the matter in question prior to deciding whether to accept a contingency fee arrangement. Although there’s no standardized procedure that we as a profession follow, for probate cases such as will contests I typically review all pertinent documents, interview witnesses and research public records, all in an attempt to independently verify the client’s version of events and, in applicable cases, to assess the defendant’s “collectability” in the event of a favorable judgment.

For many clients, this is an uncomfortable process.Recently one client said to me in the middle the due diligence process: “Why don’t you believe in my case?” My response was “If you’re going to buy a stock, would you buy it based on the CEO telling you that the company was set to have a 20 percent annual increase in sales over the next five years?”.

The reality is that when it comes to contingency fee representation, attorneys are more than just attorneys; they’re also investors. And, like any potential investor, they want to make sure before they invest that they aren’t likely to sustain a loss from that investment.

So what should you do to maximize your chance of an attorney taking your matter on a contingency fee? I suggest the following:

  • Allow the attorney to ask questions, and answer the questions concisely.
  • If there are facts that are not favorable to your position, provide them up front to the attorney; the attorney is likely to going to learn of them anyway
  • Make sure that independent witnesses are both available and willing to cooperate in being interviewed by the attorney
  • Don’t engage in a “hard sell” of your case
  • Be humble and try not to appear angry, even if you truly feel that way
  • Be appreciative of the attorney’s willingness to at least investigate your case
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