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Alternative Fee Arrangements in Complex Litigation
Alternative fee arrangements (AFAs) are about value, a benefit legal departments are increasingly pressured to bring to their companies. When hiring an outside lawyer, clients are not looking for “hours,” and they certainly are not looking for tenths of hours. They seek value.
So how does a fee arrangement with outside counsel best ensure that value? That is easy in certain scenarios, such as in a “plaintiff's case” where a company is seeking to recover a sum of money in damages. In these cases, value can easily be captured through a straight contingency arrangement — if the case is successful, and damages are recovered, the outside lawyer receives a percentage of the recovery.
But what about on the defense side? According to the ACC Chief Legal Officer 2017 Survey, 97% of CLOs outsourced complex litigation to law firms in the previous year, once again assuring litigation's status as the most outsourced legal matter. Because there is typically no pot of gold for the company to share at the end, however, capturing value is even more challenging in a complex defense case where quantifying savings is not easy.
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