Contingency Fee Representation: When the lawyer's fee exceeds the amount in dispute.

             All too often, legal fees eclipse the amount in dispute in the lawsuit.  Why is this?  Typically, the culprit is hourly billing.

            I recently saw an editorial in the Houston Chronicle entitled “It’s time to reconsider how lawyers are trained.  It is written by James Parsons, a staff attorney with one of the Texas Civil District Courts in Houston. 


            Parsons correctly notes that too often the legal process begins by billing rather than problem solving.  I see it in my practice all the time.  The plaintiff’s lawyer, on a contingency fee, has an incentive in getting to the goal line as quickly, efficiently and inexpensively as possible.  The defense attorney, if billing by the hour, wants to do the opposite.  His incentive is to turn over every rock, scorch the earth, and “defend” every issue possible.  If it can be done, it must be done.  After all, he gets paid for every hour worked, not by the result he obtains.


            Why not just solve the problem?  Communicate.  Listen to the other side’s point of view.  As Parsons suggests, employ the skills of teamwork, communication and leadership.   Good defense lawyers should not ask “how can this case be defended.”  Rather, they should ask “how can this plaintiff’s problem be solved.”


            Sometimes the problem can be solved with a simple apology.  Other times a business deal will do the trick.  If it’s more complicated, however, and litigation or dispute resolution is necessary, then try to identify the points where the parties agree and just fight about the rest. 


            Agree on as many facts as possible.  Narrow the issues down to the real dispute.  Conduct only the minimum necessary discovery.  Get an early trial setting and let the decider decide.   Don’t focus on how to obfuscate, obliterate and litigate.  Instead, focus on communication, understanding and resolving.


            The contingent fee lawyer wants to do that.  Clients would be happier if hourly billing lawyers did the same.

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