Is a settlement conference with a judge and 2 attorneys considered litigation, where the attorney receives a higher percentage? 15 Answers as of July 18, 2013

This is for an auto accident settlement.

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Beaver Holt Sternlicht and Courie, P.A.
Beaver Holt Sternlicht and Courie, P.A. | Mark A. Sternlicht
Most settlement conferences, especially with a judge participating, come after a lawsuit is filed, and filing a lawsuit is litigation.
Answer Applies to: North Carolina
Replied: 7/18/2013
Paul Whitfield and Associates P.A.
Paul Whitfield and Associates P.A. | Paul L. Whitfield
If a lawsuit has been filed, you are in court. This is litigation. Quit trying to short your lawyer. If you dont trust him fire him. If you trust him pay attention, do what he says and don't try to stiff him and don't try to second guess everything he does
Answer Applies to: North Carolina
Replied: 7/18/2013
Gates' Law, PLLC | Thomas E. Gates
Need more information to be sure; however, a settlement conference normally takes place prior to filing a lawsuit. But this sounds more formal with a judge. Most contingency agreements state a higher fee if the they filed a lawsuit. So, if one has not been filed, then no higher fee is justified.
Answer Applies to: Washington
Replied: 7/17/2013
Kelaher Law Offices, P.A.
Kelaher Law Offices, P.A. | James P Kelaher
The typical contingent fee contract calls for a 40% fee once the lawsuit is filed. If you are before a judge, a lawsuit has been filed. "Litigation" is what happens when you file a lawsuit.
Answer Applies to: Florida
Replied: 7/17/2013
Vasilaros Legal,LLC
Vasilaros Legal,LLC | Steven T. Vasilaros
For contingency fee cases and invoking higher per cent fees, (usually 40% V 331/3%) litigation commences when your attorney files the complaint and the other side answers the complaint and denies liability. So if this meeting (mediation) occurred after an answer was filed, it is technically in litigation.
Answer Applies to: Florida
Replied: 7/17/2013
    DUSTIN DEISSNER
    DUSTIN DEISSNER | DUSTIN DEISSNER
    This would depend entirely on the wording of the fee agreement. If the suit was filed that might be considered "litigation." Look at your fee agreement as if it were any other contract.
    Answer Applies to: Washington
    Replied: 7/17/2013
    A. Dawn Hayes & Assoc. P.A.
    A. Dawn Hayes & Assoc. P.A. | A. Dawn Hayes
    The start of "litigation" is usually when a complaint is filed. However, look at the retainer agreement that you signed with your attorney when you hired him/her. It should tell you when the higher percentage kicks in. If not, ask.
    Answer Applies to: Florida
    Replied: 7/17/2013
    Ryan M. Davidson Law Office | Ryan M. Davidson
    If you're having a settlement conference with a judge, you're already in litigation. I'm not sure what you mean by "a higher percentage," though I guess that what you're getting at is that your fee agreement indicates that the attorney gets one percentage if you settle without filing suit and a different, higher percentage if you do file suit. I'd say that if there's a judge involved, you've filed suit, and that's litigation.
    Answer Applies to: Pennsylvania
    Replied: 7/17/2013
    Law Offices of George H. Shers | George H. Shers
    Litigation normally means a lawsuit has been filed; settlement conferences only exist if a suit has been filed, so "litigation" began some time ago.
    Answer Applies to: California
    Replied: 7/17/2013
    Law Offices of Andrew C. Sigal | Andrew C. Sigal
    You need to review the terms of your Retainer Agreement. For example, my Retainer Agreement provides that, if I can settle my client's claim before filing a lawsuit, my fees are 33-1/3%. However, if I have to file a lawsuit, then my fees are 40%. It sounds like your attorney has a contract similar to mine.
    Answer Applies to: California
    Replied: 7/17/2013
    Johnson & Johnson Law Firm, PLLC | Richard Johnson
    Well, if you have a conference before a judge, a lawsuit must have been filed in the matter. Otherwise, the matter would not be before a judge. The only other thing I can think of is that maybe there was a mediation of your case, before suit, with a retired judge / mediator? If there was a mediation, that can be done before suit, so it is possible that your case was resolved before a lawsuit was filed. Whether your case was mediated before suit, or settled in a settlement conference with a judge after suit was filed, I am assuming that YOU were present for the proceeding. You must have some paperwork on that? Where was the proceeding held? If at a courthouse, there must have been a lawsuit. When you say two lawyers, I assume you are referring to a lawyer representing you / your interests, and then the other lawyer for the defense / the other party. Filed lawsuits are ? in the great majority of cases ? public records. So, you can go to the clerk of the court, in person, to find the matter, OR in WA. you can go online to wa.gov.courts and look for your case in either the District (the court of lesser jurisdiction) or Superior Court (the court of general jurisdiction), by county of filing. What I guess you are getting at is that your fee agreement with your lawyer is a staggered fee situation. The percentage of fee is higher once a lawsuit is filed? You will need to refer to the specific language of your fee agreement to know the details of the fee.
    Answer Applies to: Washington
    Replied: 7/18/2013
    Goldman & Maurer, LLP | Brian Goldman
    Yes. Litigation commences once the summons and complaint is drafted and served upon the defendants. Thereafter, the case is placed upon the court's calendar and this is what litigation is.
    Answer Applies to: New York
    Replied: 7/17/2013
    LeVitus Law Offices | Kurt J. LeVitus
    Generally, in contingent fee agreements in auto cases, litigation begins with the filing of a lawsuit; that is, once a lawsuit is filed, that is litigation. In your case, if the lawsuit was on file for a very short time and the only work that the attorney did in regard to the lawsuit was prepare it, file it, serve it upon the defendant, and go to court once or twice, and then attend the settlement conference, you would want to discuss with your attorney the full higher amount of the litigation percentage is truly fair. For instance, if you contingent fee agreement called for 20% if no suit is filed (i.e. pre- or non-litigation) and 33% if a lawsuit is filed (i.e. litigation), you may want to suggest that the attorney take a percentage somewhere between 20% and 33% because the work performed by the attorney in the litigation was not much, compared to a case where the attorney would have to engage in written discovery, depositions, and trial preparation (and perhaps trial, and even appeal). So, perhaps your attorney would agree to reduce the percentage down from 33%.
    Answer Applies to: Illinois
    Replied: 7/17/2013
    James E. Hasser, Jr. P.C.
    James E. Hasser, Jr. P.C. | Jim Hasser
    It depends on how your fee agreement is written and at what stage of proceedings that the conference occurs. For instance, if the contract says the fee goes up after suit is filed and then, after suit is filed the conference occurs, then the answer would be, yes. To be sure, ask your lawyer.
    Answer Applies to: Alabama
    Replied: 7/17/2013
    Matthew D Kaplan LLC
    Matthew D Kaplan LLC | Matthew D Kaplan
    Litigation begin when the Plaintiff's attorney either files a document called a "Complaint" or sends a letter to the insurance company commencing arbitration. Usually judicial settlement conferences do not occur unless one of those documents have been created. However, I have had pre-litigation settlement conferences in the past.
    Answer Applies to: Oregon
    Replied: 7/17/2013
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