As discussed in the previous two articles in this series, having the smallest possible litigation team in place and having a person with adequate litigation experience to monitor the team effectively are two important elements for any general counsel intent on keeping litigation costs in check. This is particularly so if you insist upon working under the old paradigm of paying your outside counsel on an hourly basis.
But I am going to try to persuade you to adopt or least consider a different fee arrangement — contingency. It is really simple: Having an economic stake in what one is doing creates an urgency, like no other, that heightens one’s desire to both work efficiently and strive for the best possible result. It is precisely why employing litigation lawyers on solely an hourly basis is a flawed concept for both client and lawyer. Sure, most hourly litigation lawyers have sufficient professionalism and ego to strive to win, regardless of how they are paid. But there is an old saying within the plaintiffs’ bar that, “Defense lawyers get paid per diem, plaintiff lawyers get paid perchance.” Behind this old saw is an economic truism — hourly lawyers get paid no matter what the result, contingent lawyers get paid only when they produce a positive result.
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