Pro's and Con's in Deciding Whether to Sue

From the Lawyer's Standpoint

The lawyer generally decides whether to take a case from a business standpoint. If the lawyer is going to do the case on essentially a contingent-fee basis, the lawyer has to decide whether he/she has sufficient time to do the case, and whether the case is a valuable addition to the lawyer's existing contingent-fee case inventory.

If the lawyer has sufficient funding, he/she can hire additional lawyers to work on the case, but when an individual practitioner or small law firm is concerned, the lawyer(s) generally would not consider hiring anyone to put onto the new case.

The merits of the case are (or should be) of much greater concern to the lawyer who is being asked to take the case on a contingent-fee basis. In contrast to the defendant's lawyers, who get paid each month, sometimes huge sums of money, whether or no t the defendant ultimately loses, the plaintiff's lawyer (working on a contingency, and but for the initial fee to cover expenses) will not receive a penny for his/her legal effort unless the case is won or settled for a significant amount, which makes th e lawyer concerned that the case has merit, to avoid wasting his/her time, the time of his/her client, the time of the defendant, and the time of the court. Thus, lawyers working on a contingency do try to take cases having merit, out of self interest. The lawyer has to decide whether he/she has enough time, and is the case of sufficient merit to warrant taking the case. This may well depend on the ease of establishing liability, the amount of the plaintiff's provable damages, the ability of the defenda nt to pay, and the overall costs of the litigation versus the anticipated recovery; of course, the percentage of contingency is also a relevant factor. If the plaintiff seeks to find a lawyer willing to do the case on a contingent fee of 10-20%, the clie nt will probably be unable to find an attorney.

From the Client's Standpoint

If the client seeks to hire a lawyer or law firm on an hourly rate basis to pursue an antitrust case of any kind, the client must have substantial wealth, because he/she could otherwise not afford to pay bills of $25,000 to $100,000 per month for several years, or $1-2 million over the course of the litigation. This is what an aggressive firm could run up in fees in vigorously pursuing a Robinson-Patman Act claim.

It should be noted that a contingent-fee lawyer generally puts in fewer hours in prosecuting the action than a firm which is paid by the hour for obvious reasons: the contingent-fee lawyer is spending his own time, whereas the hourly-rate lawyer is spendi ng the money of his client, and has far less incentive to economize.

If the client is considering a contingent-fee arrangement, as most plaintiffs probably do, then the client should be concerned about the following factors:

the amount to be paid in advance to the attorney
the strength of the case for liability
the amount of the plaintiff's provable damages
the ability of the defendant to pay the probable amount of the trebled damages award (usually not a problem whatsoever)
the anticipated costs of the litigation, and how much of such costs are going to be paid out of the money initially paid to the attorney
the percentage of any award or settlement payable to the attorney
whether there are any co-plaintiffs to share in the costs
the specific legal doctrines upon which the case is to be based (some being far stronger than others)
the anticipated length of time of the litigation
the availability of records to support the claim for damages
any special expertise which the plaintiff has available which can make the litigation less costly or easier, such as expert witnesses in-house and a data-processing capability
whether the commencement of the action against the proposed defendant(s) would cause a possible loss of any valuable contracts, business dealings, or lines of credit, just to name several possibilities to consider
whether the defendants could be expected to retaliate in some way

These factors and others should be considered by a person when deciding whether to bring an action under the Robinson-Patman Act. Return to Main Menu for RPAMall.

Pro's and Con's in Deciding Whether to Sue