Getting a Lawyer to Accept Alternate Billing
There is usually no shortage of lawyers to take a case with a large retainer and substantial hourly charges, but it is tougher to secure a lawyer whose payment depends wholly or partly upon achieving specified results. Here are some suggestions.
1. Pick the right lawyer or firm
Some firms simply do not use alternate billings, and choose to be paid regardless of result. Those firms are decreasing particularly in a tough economy. Before proceeding, you need to determine that the firm will at least consider a non-hourly arrangement.
2. Present the case, claim, or defense.
Many firms are happy to prepare detailed presentations for hourly billings, with the payoff potentially six or even seven figure charges. Alternative billing holds less attraction and the client must adjust for that.
Begin with a clear and concise summary. Clear claims are appealing to the attorney. They can be accurately evaluated, and the time to prepare and litigate them less. In contrast, cases
with many different issues, items, and claims may be difficulty to initially evaluate and their time commitment make them less attractive to the contingency
lawyer. Exaggeration can hurt your chances. Cases rarely settle quickly for substantial amounts and suggesting this will happen may decrease your credibility. Punitive damages and non-economic damages are tough to secure.
3. Don’t Discuss Other Lawyers Who Rejected Your Claim Other lawyer’s opinions who reject the case mean little. His rejection indicates he was not convinced of the claim and gratuitous statements about the case’s value meaningless pleasantry.
4. Candor with your lawyer
Mentioning potential problems upfront will enhance your credibility. The lawyer’s assessment involves two basic factors, the likely recovery, and the time to secure it. (similar considerations apply in a defense matter). In hourly matters, the client can dictate the methods of presentation, and a detail-oriented client will be given the opportunity to present the claim his way. Alternate billing arrangements may be more substantive, and the lawyer may dictate an expeditient way of communicating information. The client who can demonstrate that he shares the goal of conserving time is obviously more appealing.
Even if the lawyer does not agree to alternate billing, the process can be useful. If several firms reject a case on this basis, that provides important infomration about prospective costs, time, and case value.
Role Reversal with Alternate Billing
In many ways, the lawyer and client switch roles with alternate billing.
1. Case Evaluation Clients like lawyers who agree with them. Finding the client’s version credible, agreeing with damage assessments, and providing enthusiastic projections are ways attorneys secure cases. Sometimes the client will find the case has problems, and discover fees take up a large portion or worse exceed recovery. The client needs to view the lawyer’s enthusiasm about the case with some skepticism.
The lawyer needs the same skepticism with alternate billing, as the roles change and the client may tout his claim to secure non-hourly billing. Alternate billing compels the lawyer to take a careful look at the case, consider potential problems, and assess risks. Ultimately that is a good thing, for realism should occur at the onset of representation, not the eve of trial.
2. Risks Risks are reversed with contingent or alternate billing.
In an hourly case, the client assumes the risk of new or missed evidence, delays and adjournment increasing costs, unpersuasive witnesses, and adverse legal rulings; with alternate billing the lawyer takes on a large part of those risks.