Intellectual Property Litigation and Alternative Fee Arrangements: The Uncertainty Principle
"Our competitor is infringing our trademark and killing our business! You've got to make them stop, whatever it takes! (pause . . . wait for it . . . ) But we can't afford an expensive lawsuit, especially when we have no idea what it will cost. Which way do we go?"
So say many of today's clients.
It's 2010 and the client revolution is in full swing -- lawyers are finding that they may just have to justify their bills based on the value received by their clients, not just the amount of time the lawyers devoted to a matter. If you think about it, this shouldn't come as much of a surprise, but somehow it seems like virgin territory for many lawyers.
Of course, certain types of transactional practices have been offering so-called "alternative fee arrangements" for years -- billing by the document or deal, for example -- but it's much less common in a litigation practice. Most lawyers will tell you this is because litigation is, by definition, an exercise in managing uncertainty. With apologies to Heisenberg's Quantum Mechanics, many litigators seem to have their own "Uncertainty Principle," which goes something like: "If you don't know what the other side will do, or what the court will do, how can you predict what the case will cost?"
Jay Shepherd disagrees.
Jay's firm, The Shepherd Law Group in Boston, has been doing employment litigation on a non-hourly basis for more than three years, and he's a loud and proud proponent of "Open-Price Lawyering" (he hates the term "alternative fees"!) for all lawyers -- litigators included. In fact, his stated mission on his Twitter profile @jayshep -- you'll love this -- is "to make lawyers suck less." Big job. I'm glad he's on it.
Jay -- and others like him, including Patrick Lamb at The Valorem Law Group -- are part of a vanguard of legal professionals pushing the profession forward. All lawyers say they focus on client service and value (I mean, really, shouldn't everyone??), but Jay and Patrick use this as the basis for setting prices, and they are re-shaping the way we look at our own business models.
So how do we do this with Intellectual Property litigation -- especially when it often involves obtaining injunctive relief without a promise of meaningful damages? That is something we'll be exploring here at The Anchor Plate. I've got some ideas about managing IP uncertainty, but I also know I have a lot to learn. I think Jay and Patrick are right about one thing, though -- it can and should be done.
What else do Jay and Patrick have in common? Great blogs. The Client Revolution and In Search of Perfect Client Service are two of my favorites, and I expect I'll be returning to them often. You should too.
Pete Salsich III is an occasionally accomplished illustrator and relatively weak guitar player whose secret identity is that of an
Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property
Thanks for the nice compliment. I would like to introduce you to Dave Bohrer of Confluence Law, www.confluencelaw.com, who plays in the IP space, but also is a leader in the AFA movement.
My pleasure -- I've been following you and Jay Shepherd for a few months now as we get our own practice underway. Having left a 700-lawyer law firm, this entire process is new but very exciting. As it happens, I just found Dave's blog "Flat Fee IP" yesterday and am already a fan. His group is actually a model for what we're trying to do here at The BrickHouse Law Group in the Midwest. They seem to focus more heavily on patents, while we focus more on copyright and trademark, so there might be some nice overlap.