John Maynard Keynes’ quote "in the long run we are all dead" rejected the notion that inflation would control itself absent government intervention in the short term. It has equal application to flat fee pricing of litigation, where, for many clients, all that matters is what the lawyer is doing (and charging) “today,” because there is no “tomorrow.”
We do not dispute that "the fixed fee can be split into segments," (as stated most recently in Adam Smith, Esq.) but clearly some segments (the first!) are far more important than others.
Many early adopters of Confluence Law Partners, CLP’s flat fee IP litigation model are smaller sized technology companies that can’t afford the high cost of hiring hourly billing IP litigators. These clients care little about the price of the entire litigation, not because their matters are expected to conclude any earlier or are easier to resolve than a typical IP litigation, but due to the limited amount of money available to spend on lawyers.
The client mindset is that it is OK to bail on the litigation, and that their lawyers should be ready at any time to help them implement this action – even if they’ve previously failed to share this strategy with counsel.
So what is the best approach to setting a fixed price?
- Sure, discuss all possible phases of the litigation, but focus on creating a strategy for resolving the case as soon as possible, i.e., before the money runs out.
- Define phase one of the litigation as the time it will take to implement the strategy for expeditiously resolving the litigation. Most likely, you are talking 8-12 months at a minimum.
- Don’t lowball the proposed pricing on phase one with the expectation that you will “make it up” in subsequent phases of the litigation; assume instead that the representation will not extend beyond phase one.
- Sure, you want to try and reach agreement on fees and costs that post-date phase one, but if the matter is not resolved in phase one, don’t be surprised if the client’s then existing financial situation dictates that you go back to the drawing board to develop an alternative fee model for going forward.
- Understand the client often has no desire to focus on life after phase one; further understand that outside counsel cannot wait too long to broach the subject.