I saw an article earlier this week about how middleclass Americans can’t afford to pay for legal services. This main thing that caught my eye was the statement that “some Americans might be unaware that attorneys in fields like personal injury, Social Security disability and long-term disability work on a contingency fee basis,” meaning that “the attorney only gets paid if they are successful in gaining payment for their client.”
As a plaintiff/employee-side employment lawyer, most of my cases are taken on a contingency fee basis as well, normally 33-40% of the gross amount recovered. I would agree that many people aren’t aware of the contingency fee option (unless they’ve had some prior personal injury case like a car accident). That’s one of the main questions people ask when they first call into our office and speak with our intake specialist: what are the fee options? Most, I suspect, are thinking in terms of hourly fees. But hourly fees are more common in cases where I am defending an employee against a lawsuit brought by their former employer, such as a breach of duty of loyalty claim, violation of a non-compete or non-solicit agreement, or trade secrets issues. (Another common claim I defend against is payback of moving expenses or retainer bonuses, but that’s a topic for another blog post.) In those types of cases, I do charge between $350-400/hour, and I normally require a retainer up front of $5,000-$15,000. For many middleclass employees, paying for a lawyer to defend them in those types of cases can be extremely challenging.
However, for most of my employment cases (discrimination on the basis of age, race, sex, disability, national origin, or religion, harassment, retaliation, unpaid wages, unpaid overtime, FMLA violations, etc.), if I’m willing to get involved and bring a claim, I will normally offer representation on a contingency fee basis. In doing so, I’m risking a great deal of my time and effort to pursue that claim, and I only get paid if we can recover something through trial or settlement. This means I have to be fairly confident that the facts of the case will support a viable claim.
The clients benefit from this arrangement because it means that they can better find quality legal representation without having to mortgage their house to do so. And, many of these employment laws also allow a successful plaintiff’s attorney to ask the court to award attorney’s fees after trial, meaning that the company could have to pay an additional amount to account for my time through trial (normally a set hourly rate multiplied by the number of hours spent on the case). This provides some additional leverage during the case.
Clients are still responsible for paying the costs of litigation, usually $3,000-$5,000 in a basic employment case, over the court of 12-24 months of litigation. This means that the client has skin in the game, too, and it keeps up both pulling in the same direction.
Overall, I would agree that legal representation in many cases can be difficult to afford. But at least in employment law, the contingency fee arrangement helps clients pursue worthwhile claims and hold companies accountable for how they treat their employees.
Keep in mind, however, that every case is different, both in facts and possible damages, so the descriptions above are intended for informational purposes only. If you would like to discuss your potential legal claim and potential fee arrangements in a more detailed and personalized consult, feel free to reach out to our office at any time.