Q: When does the 33 percent fee change to 40 percent in a contingency agreement?
I am looking to get clarification regarding 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, when would the 40% take effect?
I am trying to find out if there would be a specific time or trigger event that would make the 40% come into effect.
If a case were to settle before commencement of trial, before jury selection, which percentage would apply?
A:
Your attorney would be in the best position to clarify this issue based upon the exact terms of your retainer agreement. The specific time or trigger you ask about is a valid concern and you should pose it to your attorney, so that both of you are clear as to the threshold at which the attorney fee transitions from 33 1/3 percent to 40 percent. As a general matter, some attorneys could see the filing of an index no. as a milestone toward trial, or the completion of discovery, or the filing of a note of issue, or the selection of a jury, as you mention. But those general opinions are not sufficient here. You must clarify this with your attorney so that there is no confusion or ambiguity as to when the fee changes.
Tim Akpinar
A: My two cents: Trial beings once the first witness is sworn and answers the first question. Reasonable minds may differ, I suppose.
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A:
I agree with other responses that you should discuss this with your attorney for clarification. Your attorney is in the best position to answer this question.
However, from what you shared, it appears like actually going to trial triggers the 40% contingency fee. Trials can take months of preparation and usually a trial begins with choosing a jury, a step you would not do if you weren't going to trial.
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