ALIOTO & ALIOTO LLP handles business litigation on both a "time and materials" or "retainer and contingency" basis. This offers the client both of the typical bases upon which legal representation is had. In this way, the client can be flexible in its approach to business litigation depending upon the legal situation it faces. Call us at 707-963-0606 for a full explanation of the basis upon which we would handle your case. Or, if you prefer, simply read below for a full explanation of the bases.
A party to litigation, called a "litigant," incurs two types of expenses: (1) expenses for the time of the attorney who provides the representation called "attorney's fees;" and, (2) expenses for the goods or services that the attorney needs in connection with the representation, called "costs." Examples of "costs" include expert witness fees, deposition and court transcript expenses, travel and lodging expenses for necessary out-of-town travel, photocopying costs, court filing fees, telephone and fax charges, postage used, overnight courier costs and etc. Regardless of the basis of representation, whether "time and material" or "retainer and contingency," the client is always responsible for the payments of costs.
The difference between representation on a "time and material" basis and a "retainer and contingency" basis lies in the treatment of attorney's fees. On a "time and material" basis, attorney's fees are charged on an hourly basis regardless of the outcome of the case. That is, whether the client pays some or all of the attorney's fees does not depend on whether the client wins or loses the case. The attorney does not risk on the outcome of the case.
On a "retainer and contingency" basis, the attorney risks on the outcome of the case. Typically, a litigant will pay a retainer to the attorney at the beginning of the representation. The retainer is not an advance for costs. It is a payment of attorney's fees. After the retainer is paid, the client pays no further attorney's fees unless and until the client receives a favorable outcome in the case. At that time, the attorney shares or takes a contingency percentage of the favorable outcome. If the client loses the case, the attorney receives no further compensation after the retainer. If a litigant needs to file suit to vindicate important rights, i.e. the right to enforce business contracts, the right to be free from unlawful restraints of trade or the right to protect one's patents or trade secrets, the litigant typically will choose a "retainer and a contingency" basis of representation. In this way, the litigant does not spend money for all of the attorney's fees in advance before the outcome of the case is known.
The attorney will assess the case to decide whether to risk or invest a large portion of his attorney's fees on the outcome of the case. The willingness of the attorney to risk a large portion of his attorney's fees on the outcome of the case is often a good indication of the value of a claim. Many plaintiffs would not be able to afford litigation were it not for the availability of the "retainer and contingency" basis of representation. On the other hand, the "retainer and contingency" basis is usually not available for a litigant who has been sued and simply defends against a claim. When a litigant simply defends against a claim, there is no outcome which will create a fund from which a contingency percentage could be shared. For this reason, the defense of a case is almost always handled on a "time and materials" basis.
As in all matters, the decision as to the best way to undertake complex business litigation depends on an analysis of the individual facts and circumstances of each case. Alioto & Alioto will provide such an analysis of your business case without any charge for attorney's fees or costs. If we feel we cannot help you, we will direct you to attorneys we believe will be able to help you.