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?
Continue Reading Willingness to Flat Fee is a Litmus Test

Adam Smith Esq. recently discussed a major obstacle to setting a fixed price for litigation: trust.

Sadly, for too many of us, clients don’t trust us with their money and we don’t trust them to reward us fairly.

The view from here in the trenches of flat fee IP litigation is that the trust issue is really about determining what a case is worth to a client.  In order to flat fee a project, you have to be willing to step off the cliff with your client.

The client is never going to agree to a flat fee unless it is convinced the amount invested in legal services (the flat fee) will generate an appropriate return on the investment.   The ROI determination, in turn, is based on the determination of what it is worth to the client to enforce its IP or defend claims brought by others seeking to enforce their IP.  This brings us to the trust issue, and our first  insight:

In our experience, the flat fee lawyer has no choice other than to Continue Reading Trust your client’s instincts