The negotiation of an alternative fee, even if unsuccessful, provides the client with valuable feedback on their case. As discussed by Cisco litigation manager Neal Rubin on Legal OnRamp:
[C]ounsel’s willingness (or unwillingness) to share the risks and rewards of litigation can help the client assess the strengths and weaknesses of its case. . . . [A] firm’s willingness to accept risk provides a useful litmus test that can help instruct the client whether it has realistically assessed the strength of the case. The straight billable hour model provides no such feedback.
We find ourselves applying this litmus test to a potential IP enforcement matter. The results suggest the client may not have the strong case it thought it did, and that the engagement will crater. So how did we get to this point, and what good can come from the possibility that we may lose the engagement?