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.
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Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property