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Enabling Monetization of Non-Monetary Victories
In a typical contingency fee arrangement, the successful attorney receives a percentage of "all sums recovered" by his or her client in a dispute or litigation. Oftentimes, this calculation is straightforward — the plaintiff recovers $X via settlement or verdict and the attorney takes a percentage of that recovery. But what about case-related victories that do not result in a direct recovery for the plaintiff, such as securing the dismissal of a counterclaim or obtaining declaratory or injunctive relief?
In each instance, the attorney may have spent significant time obtaining that non-monetary victory. If the retainer agreement limits the contingency fee to a percentage of "all sums recovered," however, courts have held there is no fee recovery for non-monetary victories, leaving the attorney holding the bag for his or her hard-fought success.
To avoid this undesirable result, this article proposes language to include in retainer agreements to enable the monetization of non-monetary victories and compensate attorneys for all their work on behalf of their contingency clients.
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