Need some clarification on the following paragraph:
"Contingency Agreement. This is a contingency agreement. The attorney's fee shall be: a. 33 and 1/3 percent before Trial; b. 40 percent if the case proceed to a Trial."
Based on this language when would the 40 percent take effect?
I'm trying to find out if there would be a specific time or trigger event that would make the 40 percent come into effect. If a case were to settle before commencement of trial, before jury selection, which percentage would apply?
That really depends on the intent of the parties and what the court jurisdiction considers the beginning of trial. Clearly you have an attorney, ask the attorney who drafted the agreement rather than other attorneys who cannot speak for that attorney’s paperwork.
I’d say it also depends on how much work the attorney has done. I just settled a VERY SMALL case for an acquaintance. I’ve never worked so hard for so little. I’m not taking 33%, but only because of the friendship.
Preparation for trial is a very intensive. If something settles on the courthouse steps, I would be of the opinion that all things being equal what should be a 40% scenario. However, if there are mitigating factors, feel free to ask your attorney or she would be willing to discuss some difficult arrangement or amount.
Thank you for choosing me to respond to this. However, I do not do contingency fee work. And in any event, it will be what the contract says, plus the intention of the parties to the contract. So you should be asking the attorney you are either contracted with or thinking of contracting with. And if you haven't signed yet, you can have the attorney spell it out more specifically in the contract. If you have signed and don't agree with what the attorney tells you, you can try to negotiate it with the attorney.
Good question. Normally a case proceeds to trial at the end of the time allowed for dispositive motions (most commonly summary judgment), if there are still issues of material fact that need to be resolved at that time, and at least one of the parties has demanded a right to a jury trial. A conscientious litigator would begin trial preparation in earnest at such time, so one could argue that the higher contingency threshold is implicated after dispostive motions are heard (and presumably denied, either fully or partially). Before such time, the case has not "proceeded to trial," but has merely been peremptorily set for trial for the planning purposes of both counsels and the court. Thus, if all procedural and dispositive motions based on the pleadings and discovery have been heard; if the attempts at settlement during mediation or arbitration have failed; and if the case remains live despite the first two factors, you can assume that your case has "proceeded to trial" within the common meaning of that phrase from a lawyer's point of view. A complete reading of the fee agreement would be necessary to provide more precise guidance on your specific situation. Best regards.
Many attorneys have their contingent fee jump to 40% after certain events in the case, such as expert disclosure or trial. This reflects the cost and the risk of the case going up for both attorney and client. .
