Contingent Fee Intake Guidelines

Intake Guidelines

Contingent fee opportunities that appear attractive upon a first look often tell a different story upon closer scrutiny. Accordingly, before committing to any such matter, the firm should analyze several factors as part of the review process. These factors include:

• The identity of the client and completion of an appropriate conflicts check. If the request is to represent the client as a plaintiff in a personal injury case, also important is information concerning the age and earnings history of the plaintiff, the injuries suffered and prognosis for recovery (particularly as it may affect permanent disability, earning capacity, future pain and suffering and loss of consortium) and claims of family members arising out of the injury.
• Information on all possible defendants, both current and potential. If full information is not available, obtain as much information as possible.
• In addition to the “standard” conflicts check, a determination whether any current clients have a significant stake (pro or con) in the legal issues to be presented in the case. Consider, for example, whether any precedent likely to be established could affect adversely the interests of known clients.
• What is the estimated level of firm resources required and what is the estimated cost of those resources (stated in terms of a range where necessary)? This estimate should include legal hours, investigation fees and any other costs or expenses that can be anticipated.
• How likely is it that experts will be needed, and what disciplines will be drawn upon? Has anyone at your firm already consulted with an expert and, if so, what is that expert's opinion?
• What are the merits of the case, that is, what is the likelihood of liability being established? If contributory negligence is likely to be a factor, how might that affect the overall outcome of the case? Finally, what defenses or counterclaims might be asserted and how effective might they be?
• In light of the estimate of legal hours, expert fees and costs, etc., what is the estimated range of damages, including a “best case” scenario and a “worst case” scenario, assuming liability is found? It is great to establish liability, but it is equally important that the damages awarded provide a fair return to both the plaintiff and the firm that has invested its time and money in the case.
• Assuming a favorable outcome and significant damages, are the damages collectible? This analysis involves a number of issues. Is there insurance available to cover the claim and, if so, what are the amounts of coverage, retention and the known reserves and identities of the insurance carriers? Are other plaintiffs likely to be tapping into the same funds? What suspected resources does the defendant have (Has a credit check been done?) and what other known facts might bear on the potential for collecting a judgment?
• Finally, what intangibles are involved in the decision to take on the case? Is further business expected from the contingent fee client or others similarly situated, or is there a potential for useful publicity for the firm or even the potential for fulfillment of a pro bono objective?

The Approval Process