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40 Litig. 18 (2013-2014)
The Tempting Contingent Fee Case

handle is hein.journals/laba40 and id is 88 raw text is: The Tempting Contingent Fee Case GARRETT S. FLYNN The author is with the Law Offices of Garrett S. Flynn, LLC, West Hartford, Connecticut. Eve Repentant is a magnificent marble statue in the Wadsworth Atheneum, an art museum located two blocks away from the U.S. District Court in Hartford. Poor Eve's head is bowed; her shoulders are slumped; and a once-bitten apple, a symbol of her temptation and regret, lies at her feet near a coiled snake. Too many lawyers are tempted to take complex business dis- pute cases on a contingency fee basis and wind up feeling like Eve. This situation is very often avoidable. The best defense against temptation generally-knowledge- can also help a lawyer de- tect whether a potential contingency fee case has genuine merit rather than superficial appeal. Lawyers need to appreciate the various types of harm that can flow from taking a bad contin- gency fee case, recognize potential sources of temptation, and have a game plan for evaluating the actual quality of contingency fee cases before a particular one comes along. A Blessing or a Curse Excluding the types of cases in which contingency fees are il- legal (state ethics rules vary, but these usually include domestic relations and criminal cases), contingency fee cases-as distin- guished from cases with other fee arrangements -are neither good nor bad. Their quality depends on the particular merits of the underlying case. Where a case involves clear liability and ample damages, contingency fee cases are wonderful for the plaintiff and the plaintiff's lawyer. The pursuit of justice does not depend on how much money the plaintiff has. The lawyer is motivated to recover as much in damages as possible. Often, the lawyer earns sub- stantially more than if the case had been pursued on an hourly basis-but the greater fee is fair compensation for the lawyer's participation in the risk that the case might fail. In cases in which liability is unlikely or damages are low in comparison with the cost of obtaining them, the contingency fee arrangement is harmful in ways that are both obvious and insidious. A lawyer who takes an inferior contingency case will waste time that could have been spent more productively and profit- ably. A lawyer's most painful source of regret after a contingency case fails is usually the realization that every minute spent on the case could have been spent on more promising cases or on relationships neglected during the lawyer's absence. In cases in which the lawyer advances expenses that will never be repaid, the financial consequences can be devastat- ing. Jonathan Harr's A Civil Action tells a compelling story of an attorney who doggedly pursued environmental claims and obtained substantial settlements but was forced to declare bank- ruptcy when debts for legal expenses could not be paid. Indeed, 18 LITIGATION

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